Pinchuk v Woollahra Municipal Council [2005] NSWLEC 16

Land and Environment Court of New South Wales

CITATION : Pinchuk v Woollahra Municipal Council [2005] NSWLEC 16

APPLICANT Semyon Pinchuk

PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10773 of 2004

CORAM: Hoffman C

Development Consent :- refusal of a roof deck on a house under construction - visual and acoustic privacy - visual impact - light spill - height impact on privacy and loss of views KEY ISSUES:

Residential Development Control Plan 1999 Woollahra Residential Development Control Plan 2003 Woollahra Local Environmental Plan 1995 LEGISLATION CITED: State Environmental Policy No. 1 Sydney Regional Environmental Plan 23 Sydney and Middle Harbour Environmental Planning and Assessment Act 1979

DATES OF HEARING: 2/11/2004

DATE OF JUDGMENT: 01/14/2005

APPLICANT Mr D Wilson, barrister of Horowitz & Bilinsky

LEGAL REPRESENTATIVES:

RESPONDENT Mr P Marincowitz, solicitor of Phillips Fox

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

18 January 2005

10773 of 2004 Semyon Pinchuk v Woollahra Municipal Council

JUDGMENT 1 This was a class 1 appeal, No. 10773/04, between Semyon Pinchuk and Woollahra Municipal Council against the refusal of a roof deck on a house under construction at No. 2 Fernleigh Gardens, Rose Bay. The house was approved under development consent 1154/2000. It was a large three storey house above a garage. The house appeared as four storey from the street.

2 The site was an irregular shaped allotment of 862 sq m with a curved frontage to the street, and the street rose from New South Head Road past the site up to Fernleigh Castle at the head of the cul-de-sac about 30 m past the site. The castle was a heritage item.

3 The house at No. 2 was on the higher side of the street and, due to the slope, there were substantial retaining walls along that frontage. A roof terrace was proposed in the original development but in the consent condition 58 required its removal. Application 918/2002 had sought another roof terrace on the house but it was withdrawn.

4 Application 106/2003 was the subject application and the deck, at the time of submission, was about 40 sq m in area plus an external stair up from the third floor of the house. It was refused on 25 November 2003 for the reason that the siting and size of the roof terrace would adversely impact the visual and acoustic privacy of adjoining properties and the locality and would be inconsistent with objective 01 and performance criteria PC9 of the Residential Development Control Plan 1999.

5 The applicant amended the deck to increase the setbacks from the edges of the roof and incorporate textured glass balustrades to a height of 1.5 m on the north side to restrict views down towards neighbours' yards and 1 m high balustrades on the west and the east sides. The south side of the deck was against a highlight roof on the otherwise flat concrete roof of the house. The deck at that time remained about 40 sq m in area. To the west there was a panoramic view of the harbour including Point Piper, the bridge and the Opera House and Bradley's Head from the roof.

6 As seen on the Court's view of the property, all three living levels of the house below had about the same panoramic view although the floor on top of the garage had a house on the opposite side of the street in the lower foreground, that house was No. 10 Fernleigh on the low side of the street. Number 10 was on the corner of Fernleigh and New South Head Roads.

7 Adjoining the site on its north side was No. 1 Fernleigh, a single storey house that was about at the same level as the floor of No. 2 on top of the garage. As a result, from the roof four levels above No. 1 Fernleigh there would be very direct overlooking of No. 1's rear yard and pool area. 8 Between the subject house and its northern boundary adjacent the house at No. 1 was the swimming pool and surrounding terrace of No. 2 built hard up against the boundary.

9 Past No. 1 Fernleigh on the north was No. 869 New South Head Road, another single storey house only slightly above the house at No. 1. From the roof of the proposal there would also be direct overlooking of its backyard and some windows.

10 On the uphill side of the house under construction at No. 2 was another single storey house at No. 3 Fernleigh. It had about a 1.5 m side setback to the boundary adjoining No. 2. The proposed landing and stair up to the proposed roof deck was directly adjacent to windows of bedrooms in No. 3 that were at about the same level as the third floor of No. 2. People on the proposed deck at the head of the stairs who were on the stairs or the lower landing would have a close view into those windows of No. 3 and any noise or talking would be clearly audible across the narrow gap.

11 Uphill of No. 3 was No. 4 Fernleigh, a two storey house. On the top floor the master bedroom and en-suite of No. 4 enjoyed the view above No. 3 and over the roof of No. 2 towards the harbour. Although the view was narrow, the harbour and city were visible and in winter, when trees lost leaves, the Opera House and Harbour Bridge were visible.

12 Adjoining No. 4 on the north side was No. 20 Rawson Road, another single storey house elevated above the rear of Nos. 1 and 3 Fernleigh, from its garden terrace and living room window it also had the magnificent harbour view and part of it was across the proposed roof terrace through existing deciduous trees. Other parts of the view from the garden terrace to the harbour were unobstructed.

13 The issues were: 1. Visual and Acoustic Privacy. The siting and size of the proposed rooftop terrace will have an adverse impact on the visual and acoustic privacy of adjoining properties and is inconsistent with objective 05.8.1 and performance criteria C5.8.6 of the Woollahra Residential Development Control Plan 2003. 2. Visual Impact. The siting design and materials proposed for the rooftop terrace will have an adverse visual impact on adjoining properties and the streetscape contrary to objective O5.1.5 of the Woollahra Residential Development Control Plan.

3. The Court cannot approve the proposed development as it cannot be satisfied that the proposed development is consistent with the objective of the Woollahra Local Environmental Plan 1995 contained in cl 2(2)(h)(iv) and objective (a) of zone 2(a) as required by cl 8(5) of the LEP. 4. Light Spill. Insufficient information has been provided to enable the Court to be satisfied that there will be no adverse impact on the amenity of residences in the vicinity of the site due to light spill from the proposed rooftop terrace and that there will be no breach of the Australian Standard 4282 1997 - control of offensive effects of outdoor lighting. 5. Height Impact on Privacy and Loss of Views. The height of the proposed development is unacceptable because: 5.1. It is in breach of the development standard in cl 12(1) of the Woollahra Local Environmental Plan 1995 and is inconsistent with the objectives of that development standard set out in cl 12AA(a)(b)(c) of the LEP. 5.2. Its visual impact. 5.3. Its impact on the visual and acoustic privacy of adjoining properties. 5.4. It results in loss of views from adjoining properties. 6. Public Interest. The proposed development is not in the public interest. 14 The Court heard evidence from objectors on site and was shown their properties. They were: · Mrs K Marano of No. 869 New South Head Road, Rose Bay; · Mr G Leonard, No. 4 Fernleigh Gardens; · Mr P and Mrs G Horsky of No. 10 Fernleigh Gardens; · Mr T Finlay who represented Mr M Gottlieb of No. 1 Fernleigh Gardens who was away; · Mr and Mrs J Marchant of No. 20 Rawson Road; · Mr Adams of No. 3 Fernleigh Gardens.

15 There were objections also from: · Ms L Pongrass of No. 8 Fernleigh Gardens and · Messrs D and S McGrath of No. 4A Fernleigh Gardens but they did not attend the hearing. 16 Mrs M Clark, president of the Rose Bay Residents Association, also gave evidence. Council reports on the matter were in evidence.

17 The application was stated as a new access stair to the existing roof and new observation area. By the time of the hearing the size of the terrace had been reduced to about 27 sq m and the obscured glass screens had been raised to 1.7 m high on the north and east sides. By relocating the western balustrade further back from the high western edge of the roof the balustrade just penetrated the statutory height and the State Environmental Planning Policy No 1 objection was still required. This was modified just prior to the hearing to eliminate the penetration. The applicant also said that the use of the deck was now only proposed to give access for maintenance of the roof except on three occasions per year.

18 The respondent referred to a previous appeal where there was a report by Byrnes & Associates, town planners, incorporating an acoustic report by Renzo Tonin & Associates although it dealt with the application when it involved the State Environmental Planning Policy 1 objection. 19 There was another report by Mr Peter LeBas, town planner of the Turnbull Group, and he had prepared a report on the amended proposal and consulted with the objectors prior to the hearing and gave evidence. There was a further report from Mr B J Murray, acoustic engineer, who prepared it as an independent expert and gave evidence at the hearing. Their inputs had resulted in draft conditions Nos. 23, 24, 25 and 26 which read in Exhibit 8 as follows: Condition 22, Lighting.

Lighting must be designed so as not to cause nuisances to other residences in the area and all lighting to be installed on the roof terrace will be recessed lights, will be surface brick mounted lights at a maximum height of 600 mm above the finished floor level of the roof terrace.

Condition 23, Numbers of Persons In Use Of The Roof Terrace.

(a) The roof terrace shall not be used by more than four persons at any one time.

(b) The roof terrace shall not be used for entertainment or for the holding of functions.

(c) The roof terrace and its lights shall not be used after 10pm in the evening other than on three occasions a year, such occasions being New Year's Eve, Australia Day and one day on which there are special celebrations.

(d) No music is to be played on the roof terrace area.

(e) No amplified sound is to be played on the roof terrace area. (f) No furniture or other structures movable or immovable are to be erected on the roof terrace including, but not limited to, items such as sunscreen and umbrellas.

(g) The primary use of the roof terrace is for the purpose of inspection and maintenance for that part of the house which is not accessible other than from the roof terrace area.

Condition 24, The Door Leading to the Exterior Access Stair.

The door to the exterior access stair shall be kept locked at all times other than when the roof terrace is being used by tradespeople servicing the roof area or is being used in accordance with condition 23.

Condition 25, Glass Privacy Screens to Exterior Access Stairs to the Roof of the Terrace.

A 1.7 m high textured glass screen is to be constructed the full length of the access stairs and its access landing as shown on the sketch plans attached to these conditions marked with the letters A and B.

Condition 26, Satellite Dish and Antenna.

If a satellite dish and antenna are to be installed in the vicinity of the roof terrace, they will be located in the position shown on the sketch plans attached to these conditions marked with the letters A and B.

20 These draft conditions were intended to minimise the impacts of the roof deck. The council and the applicant's experts now believed the deck could be approved but consent orders were not sought.

21 The objectors maintained the proposal was still unacceptable. The objectors' concerns were coloured to some extent by the noise of entertainment created by tenants of the original house on the site and the inability of the council by-law officers or the police to control it effectively. They complained that authorities took so long to arrive, the party had finished usually in the early hours of the morning and disturbed everybody's sleep.

22 The subject house had entertainment facilities at every level except the bedrooms and all levels had extensive balconies or terraces. They said the potential of noise from the proposed extra roof terrace would disturb the neighbours at night and was an unnecessary additional facility. In effect they did not give great credence to the change of purpose of the deck to being simply an access for roof maintenance.

23 Another concern was the additional height of an already large and bulky structure that already exceeded the height limit by about 1.7 m on the western elevation. Council had approved the house with that exceedence.

24 Another concern was further loss of views due to the 1.7 m high privacy screens on the eastern and northern sides of the deck. This was held by Messrs Marchant and Leonard to be unacceptable because of the significant impact of the original approval of this very large house and any further impacts should not be permitted.

25 Then there was loss of privacy. Mr Marchant and Mr Leonard said the sight line drawings to demonstrate protection of their privacy was taken from a person standing beside the 1.7 m high screens. If a person stood at the western balustrade and looked back, they would look over the top of the screens.

26 Mr Leonard had no curtains or blinds to his large master bedroom and en-suite windows as they had not been needed to date. The location alone had given privacy. He said now, especially at night when his rooms were lit up, there would be no privacy from persons on the proposed roof deck.

27 Mr Marchant was concerned about similar things but at a much lesser impact as people at his home would be on the garden terrace.

28 The expert said the separation distance of 40 m to 60 m from either house or terrace was sufficient for privacy. A survey in exhibit A was produced to show the distance.

29 In regard to Mr Adams at No. 3 the access door from the top floor onto the landing of the external stairs to the roof, the stairs themselves and that part of the deck at the top of the stairs were directly opposite his two bedroom windows.

30 The conditions required glass screens to preserve visual privacy but oral privacy was almost impossible to preserve. Mr Murray's opinion was that the oral impacts could be reduced to acceptable levels by controlling the number of persons on the deck to four, except for three occasions per year, and reducing the major role of the deck to that of access for maintenance to the roof and closing use of the roof at 10pm.

31 There was also the impact of lighting to the landing, stairs and deck that would be needed at night. The draft conditions sought that the lights be located not to glare the neighbours but their being turned on must create a luminescence that would be quite obvious in the Adams' bedrooms. The obscured glass privacy screens on the stairs and landings and the deck itself would pick up the luminescence.

32 Mr Leonard observed that the Murray calculations on noise and its impact being reduced to acceptable levels assumed only one person was speaking at normal levels at a time, that is not having a conversation or talking loudly, not laughing or making exclamations. Even with the numbers on the roof reduced to four persons, Mr Leonard found that Mr Murray's assumptions were not realistic. Mr Murray said that was why he wanted the condition of no access to the roof after 10pm. Before that time he thought up to two persons speaking would not cause impact due to the higher background noise levels prior to 10pm. It was when the background noise reduced after 10pm that impact would occur.

33 Mr Leonard noted that Mr LeBas agreed the balustrading of the roof deck could be seen from No.'s 1, 3 and 3A Fernleigh Gardens, No. 4 Fernleigh Gardens and No. 20 Rawson Road. Mr Leonard said from those properties the already significant impact on views was increased, no additional impact on views should be permitted.

34 Mr LeBas thought the impacts were minimal and acceptable when the existing house was treated as a fait accompli.

35 The Court during the course of the view was shown the positions from which view impact would occur. Although small in impact on Mr LeBas's measure, there was impact. 36 In the Court's opinion the only impact of minimal significance was from the Marchants' terrace where the roof deck could only be glimpsed through trees. Admittedly they were deciduous and in winter the deck would be more clearly seen. The view loss was of water in Rose Bay and there was quite a lot of water to see from the Marchants' terrace. 37 On the other hand Mr LeBas agreed Mr Leonard would lose about half of the narrow water view he had enjoyed from his master bedroom en-suite. 38 Mr LeBas agreed that No. 1 Fernleigh had already lost significant views due to the construction of the house at No. 2 and the further loss of sky view due to the 1.7 m high balustrades on the roof and any additional bulk was insignificant. The same would apply, in Mr LeBas's opinion, to No. 869 New South Head Road.

39 The objectors higher up the hill were also concerned about reflections off the glass privacy screens. Already other properties nearby created sun reflections at different times of day.

40 The Court was told the glass screens would be of non-reflective glass. On inquiry how glass could be made non-reflective, the Court was told by sandblasting the outer surface of the glass. From observation of similar treatments it meant the screens would appear to be an off-white semi-translucent panel. That would create solid objects in the view lines, not see-through panels that minimised view loss. It seemed the raising of the height of the privacy screens on the north side would prevent overlooking of the yards at No. 1 Fernleigh and No. 868 New South Road.

41 Mr Murray's calculations also needed the privacy screens to have no vertical gaps between panels and a maximum 50 mm gap at the bottom between the panel and the roof. This was needed to assist in reflecting noise on the roof deck upwards so as to achieve acceptable noise impacts on No. 1 and No. 869. He agreed that for houses further up the hill there could be direct line of sight from persons talking on the deck up towards the Marchants' and the Leonards' houses but the separation distance of 40 m to 60 m would reduce the noise acceptedly given the conditions to be imposed.

42 Mr Adams' house was the one where the greatest potential for impact from noise, and activity, and lights at night, up on the deck.

43 The Court was told that having the western balustrade set well back from the western edge of the roof would mean it would not be seen from the street and, therefore, the additional height of the balustrade would not add to the visual bulk of the house that already exceeded the height limit by over a metre. That opinion would appear to be true for the balustrade.

44 The Court was also told that the setback meant there would be no overlooking of the swimming pool and terrace in No. 10 Fernleigh Gardens, the Horskys. However, standing on the roof at the position of the western balustrade, a person of normal height of just under 1.8 m could see the pool and terrace and the Horskys front door. The evidence then was that the Horskys pool was already overlooked from the three sets of balconies on the three floors below. So any additional loss of privacy was inconsequential in the event of an approval of the roof deck in the subject house.

45 Mr LeBas agreed the house was very large and perhaps too big for its site and in the context of neighbouring houses.

46 Mr Horsky, standing at his front door, invited the Court to look up at the house at No. 2 and observe the bulk and height and the overbearing presence and the loss of privacy that he felt whenever he opened his front door or stood in his pool terrace. He was against any additional height or overlooking.

47 The applicant felt the roof deck would not add significantly to the impact of the existing building, and by being partly built, the landscaping to Fernleigh Garden frontage of the house was not yet installed. It would soften the building and make it more attractive.

48 Mr Horsky believed that the high street boundary retaining walls were higher than had been approved in the original development consent and the landscaping would not do anything to reduce their impact. The retaining walls and the house appeared as a single structure seen from his house at the lower street level. Mr Horsky said due to the increased visual impact above what he had expected, he had asked the council to check the retaining wall heights but had no satisfaction on that account. The applicant and the respondent said no issue was raised in this appeal about the retaining walls.

49 In coming to a conclusion on this appeal the Court was told the house under construction was a separate approval and should be accepted as an existing approved structure, the roof deck should be considered as a separate minor development application that made little change to the already approved structure.

50 In considering Sydney Regional Environmental Plan 23 Sydney and Middle Harbour, the Court can accept that seen from the waterway the house would appear little different if the roof deck is approved. The impacts are more localised.

51 Having regard to the Woollahra Local Environmental Plan 1995, a similar opinion would apply in regard to the relevant objectives in cl 2(2)(h). 52 But, in the Residential 2(a) zone in which the house is located, objective A is to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses. In the Woollahra Residential Development Control Plan 2003 for the Rose Bay precinct the general provisions are: C. To minimise the negative impact of development on the amenity of adjoining properties.

Character Control C.4.9.2. A proposal should maintain the view and vista corridor shown on the precinct map.

Control C.4.9.7.6. The roof forms are to be designed having consideration for neighbourhood amenity, overlooking streetscape suitability and to maintain views across the precinct.

53 The Court has concluded there are impacts from this roof deck, especially the view loss to the Leonards and the noise and night lighting impacts to the Adams. It is not unreasonable for the Court to take account of the impacts already caused by the existing building that exceeds the height limit, and the fact that the roof deck will increase those impacts. 54 There is a cumulative aspect in this case, particularly when the original approval for the house had a specific condition to delete the roof deck then proposed. Admittedly, this proposal the subject of this appeal is a smaller roof deck with some structures that seek to reduce impacts. 55 However, it seems that to arrive at a proposal that may actually achieve acceptable impacts the use of the deck had to be changed from that of an observation area to one of access only for roof maintenance, and that only four persons can go up there at a time, and only one can speak at the same time and only in low volumes, not even animated conversation that one might expect if four persons were discussing the spectacular view.

56 It seems to the Court the impacts on the Adams have an unacceptable impact even with conditions, assuming they are complied with. The loss of view to the Leonards is unacceptable given that it is a narrow vista and the only view to the harbour available from that house. Also it seems to the Court that the conditions necessary to reduce impacts are so stringent that they are unrealistic and only serve to demonstrate that the roof deck should be refused.

57 Therefore, the appeal fails on the basis of issue 1, issue 4 and issue 5.4.

58 The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 1, 5, 8, 9, 10 and A.

________________________ K G Hoffman Commissioner of the Court Ljr/rjs

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