Land and Environment Court New South Wales

• Medium Neutral Citation: Pritchard v Manly Council [2014] NSWLEC 1186
• Hearing dates: 5 September 2014
• Decision date: 09 September 2014
• Jurisdiction: Class 1
• Before: Tuor C

Decision

1.The appeal is upheld.

2.The development (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly, is approved subject to the conditions in Annexure "A".

3.The exhibits, except Exhibits 6, A, B and E, are returned.

• Catchwords: DEVELOPMENT APPLICATION - roof terrace. Impact on privacy and views.
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; State Environmental Planning Policy No 1 - Development Standards; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; Manly Local Environmental Plan 2013
• Cases Cited: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; Tenacity Consulting v Warringah Council [2004] NSWLEC 140; Wehbe v Pittwater Council [2007] NSWLEC 827
• Category: Principal judgment
• Parties: John Duncan Pritchard (Applicant); Manly Council (Respondent)
• Representation: Mr M Staunton (Applicant); Mr S Shneider of Houston Dearn O'Conner (Respondent)
• File Number(s): 10225 of 2014

Judgment

1 This is an appeal under the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Manly Council (council) of a development application (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly (site).

2 The key issues in dispute are that the proposed roof terrace will result in visual and aural privacy impacts and view loss to adjoining and nearby properties.

Site and locality

3 The site is located on the northern side of Fairlight Crescent with rear access from Arlington Drive. It is generally rectangular in shape, with a frontage of 15.24m to Fairlight Crescent and Arlington Drive and side boundaries of 34.44m with a total area of 518.5sqm.

4 The site is developed with a residential flat building, which is currently being substantially altered under a development application (DA304/2011), which was approved by council on 27 February 2012. Subsequent applications under s96 of the Act have been approved, most recently under an agreement pursuant to s 34 of the Land and Environment Court Act 1979 (EPA Act) in Appeal No. 10226 of 2014 (Approved Development).

5 The site adjoins residential flat buildings. To the rear, on the opposite side of Arlington Drive, are detached dwellings with elevated terraces that overlook the site (14 Bolingbrook Parade and 23 Lauderdale Avenue). The surrounding area is predominantly two to three storey residential flat buildings, interspersed with detached dwellings and townhouses.

Background and proposal

6 The development application was lodged on 14 February 2014 seeking approval for additional works to those approved under DA304/2011. The key change is to provide a roof terrace on level 4 for unit 5 and to enlarge the approved terrace for unit 6. The terraces would include a glass balustrade and there would be a privacy screen between the terraces for units 5 and 6. The application was refused by the Manly Independent Assessment Panel (MIAP) on 17 April 2014.

7 A conciliation conference under s 34 the LEC Act was held on site and the Court heard from objectors and visited nearby properties. The parties did not reach agreement and the conciliation conference was terminated. The parties agreed to my disposing of the appeal at a hearing under s 34(4)(b)(ii) and that the evidence at the s34 conciliation conference would be evidence in the proceedings.

8 The applicant sought and was granted leave to rely on amended plans, which reduced the size of the proposed terraces and provided a privacy screen along part of the eastern edge of the parapet. Mr Shneider, for the council, did not object to the granting of leave, subject to an order for costs under s 97B of the EPA Act. Mr Staunton, for the applicant, opposed the costs order on the basis that the changes were minor and had been assessed by the experts during joint conferencing and that consequently there are no cost thrown away. Consistent with the principles in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 and for the reasons put forward by Mr Staunton, I accept that the changes are minor and no cost order is warranted.

Planning controls

9 The site was within Zone R1 Residential under Manly Local Environmental Plan 2013 (LEP 2013) and the development is permissible with consent. The objectives of the zone are:

· To provide for the housing needs of the community.

· To provide for a variety of housing types and densities.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

10 Under cl 4.3 of LEP 2013, the maximum height of development is 8.5m. The existing building and the Approved Development exceed the maximum height. The maximum height of the proposed balustrade and privacy screens would be 9.8m which exceeds the control in cl 4.3 of LEP 2013 but is below the maximum height of the Approved Development. The applicant has submitted a written request under cl 4.6 of LEP 2013 for a variation to the height standard.

11 Manly Development Control Plan 2013 (DCP 2013) contains provisions that are relevant to the matters in dispute between the parties including Aims and Objectives (cl 1.7), Privacy and Security (cl 3.4.2), Maintenance of Views (cl 3.4.3) and Height of Buildings (cl 4.1.2).

The evidence

12 The Court visited the site and heard from objectors, whose key concern was the impact of the roof terrace on their privacy and views. The owners of 14 Bolingbrook Parade and 23 Lauderdale Avenue were concerned that the Approved Development reduced views of the land water interface from their properties and that the proposed balustrade and privacy screens would further reduce the views, particularly if structures such as umbrellas were placed on the terrace, which they considered to be unavoidable given the orientation of the terraces.

13 The Court heard expert planning evidence from Mr G Hugo, for the council, and Mr G Boston, for the applicant. The experts agreed that the potential visual privacy impacts are limited to 4 and 8 Fairlight Crescent and that these were satisfactorily addressed by the proposed privacy screen and setback of the terraces. However, Mr Hugo maintained his concern about the potential aural privacy impacts of the proposal and that these had not been adequately assessed. In Mr Boston's opinion, the use of the terraces would be consistent with normal residential activities and would not result in unacceptable aural privacy impacts.

14 The experts agreed that the potential view impacts are limited to 14 Bolingbrook Parade and 23 Lauderdale Avenue. They agreed that the privacy screen between the terraces for units 5 and 6 would not result in view loss, although Mr Boston suggested that the screen could be reduced in length by 300mm to ensure it would not protrude any further than the Approved Development when viewed from 14 Bolingbrook Parade.

15 Mr Hugo's main concern was the view loss to 14 Bolingbrook Parade may result from the balustrade and privacy screen adjoining the terrace to unit 5. In his opinion, the information was inadequate to accurately assess the impact but he considered it would further reduce the water view and as it exceeded the height control was unacceptable. Furthermore, Mr Hugo considered that structures such as umbrellas would also impact on views and that the proposed conditions to restrict structures on the terrace would result in enforcement issues for council.

16 Mr Boston stated that the terraces had been reduced in size in response to detailed analysis of the potential view impacts. The glass balustrade and privacy screen would result in a minor loss of the foreground and water views but would not impact on the main view corridors, particularly the land water interface and appropriate view sharing was achieved. In his opinion, the small size of the terraces and the proposed conditions would limit structures above the height of the balustrade and not result in any further loss of view.

17 Mr Staunton and Mr Shneider made competing submissions on whether conditions could be imposed that would prevent structures or furniture being installed or maintained on the upper rear terrace of units 5 and 6 that exceed the height of the balustrade around the terrace. Mr Shneider submits that cl 1.20 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) would have the effect of suspending the conditions or any bi-laws and that structures could be erected under the SEPP without consent. Furthermore, Mr Shneider submits that the condition would require enforcement action by council to ensure compliance.

18 Whereas, Mr Staunton submits that the development must be carried out in accordance with the conditions of consent and the proposed bi-law would alert prospective purchases to the conditions. The SEPP does not set aside conditions of consent and it must be assumed that the conditions will be complied with. In the event that they are not, council could enforce them, which is no different to other conditions of consent.

Findings

19 Clause 4.6 of LEP 2013 provides:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

20 Clause 4.6 permits exceptions to Height standard in cl 4.3 of LEP 2013. It is similar to an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) in that it is a precondition, which must be satisfied before the proposed development can be approved.

21 Clause 4.6(3)(a) of LEP 2013 requires the applicant's written request to demonstrate that "compliance with the development standard is unreasonable or unnecessary in the circumstances of the case". It uses the same language as SEPP 1. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 deals with the requirements to uphold an objection under SEPP 1. At [42] to [43], His Honour discusses ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:

42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard...

43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).

22 The principles in Wehbe are relevant to establish whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a), namely whether, despite the non compliance, the proposal meets the objectives of the standard.

23 The experts disagree on whether the proposal meets the objective 1(c)(ii) of the Height standard, which provides:

(c) to minimise disruption to the following:

....

(ii) views from nearby residential development to public spaces (including the harbour and foreshores),

.....

24 I accept Mr Boston's evidence that the view loss of the proposal has been minimised by analysis of the views, a reduction in the size of the terrace and conditions of consent restricting further structures. The Approved Development exceeds the height limit and intrudes into the views of the land water interface. As I understand, the development was approved on the basis that it was generally within the roof form of the existing building and the view impact was found to be acceptable. The proposal before the Court does not further impact on the critical land water interface views and view corridors. While there would be a minimal loss of views to 14 Bolingbrook Parade from the privacy screen above the parapet, this is a foreground water view and would not materially impact on the expanse of water views enjoyed from this property.

25 I accept Mr Staunton's submission that the conditions that restrict structures on the terraces can be imposed and would not be set aside by the SEPP. The conditions are reasonable and, it must be assumed that they will be complied with and enforced, if necessary, similar to other conditions of consent.

26 Mr Hugo considers that any further view loss from the development is unacceptable as the proposal exceeds the height limit. However, the objectives of the standard seek to minimise view loss, not eliminate it, and I accept that this has been achieved to a reasonable level.

27 Other than satisfaction of the objective in cl 4.3(1)(c)(ii), the experts did not raise any issues with the Applicant's request for variation of the height standard under cl 4.6 of LEP 2013.

28 Pursuant to cl 4.6(4)(a) of LEP 2013, I am satisfied that consent may be granted. Firstly, the Applicant's written request has adequately addressed the matters required to be demonstrated in subclause (3). Secondly, the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the R1 Residential zone.

29 The merit issues in dispute between the parties principally relate to view loss, which for the reasons discussed above, I have found to be satisfactory and would meet the requirements in LEP 2013 and DCP 2013. In particular, cl 3.4.3 of the DCP and the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.

30 Mr Hugo's concern about aural privacy would not be a reason to refuse the application. The terraces, as amended, are not large, are off bedrooms and would be used for purposes associated with residential use of the premises. The aural privacy impacts are therefore reasonable. As the merit issues are acceptable, the proposal would not be contrary to the public interest.

Conditions

31 The only condition in dispute was Condition 3, which requires the non trafficable pebble finished flat roof around the terraces to be pitched to ensure that people cannot use it. I accept Mr Staunton's submissions that this is unnecessary. The balustrade around the terraces restricts access to the roof, which is to be pebble finished and non trafficable. Furthermore, the parapet around the roof is only 400mm high and would not provide an adequate balustrade if people were to use that part of the roof. The condition is to be amended to require that the roof be non trafficable and not used.

32 In addition, the deferred commencement condition has been amended to reduce the length of the privacy screen between units 5 and 6 by 300mm, as suggested by Mr Boston.

Orders

33 The Court orders that:

1. The appeal is upheld.

2. The development (DA 20/2014) for alterations and additions to an existing residential flat building, including a roof terrace at 6 Fairlight Crescent, Manly, is approved subject to the conditions in Annexure "A".

3. The exhibits, except Exhibits 6, A, B and E, are returned.

Annelise Tuor

Commissioner of the Court

Decision last updated: 09 September 2014