Antoniou v Georges River Council [2019] NSWLEC 1624 (19 December 2019)

Last Updated: 19 December 2019

Land and Environment Court New South Wales

Case Name:	Antoniou v Georges River Council
Medium Neutral Citation:	[2019] NSWLEC 1624
Hearing Date(s):	26 November 2019
Date of Orders:	19 December 2019
Decision Date:	19 December 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The appeal is dismissed. (2) Modification Application 2019/104 relating to changes in height and length of a privacy screen, described in the Development Application relating to Lot 58 DP 7972, also known as 38 Queens Road, Connells Point is refused. (3) The exhibits, except for Exhibits A, B, E and 1 are returned.
Catchwords:	MODIFICATION APPLICATION – privacy screen –bulk and scale – view loss – consistency with character – visual amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Texts Cited:	Kogarah Development Control Plan
Category:	Principal judgment
Parties:	George Antoniou (Applicant) Georges River Council (Respondent)
Representation:	Counsel: G Antoniou (Self-Represented) (Applicant) S Wilson (Solicitor) (Respondent) Solicitors: Georges River Council (Respondent)
File Number(s):	2019/239412
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This is an appeal against refusal of Modification Application (MA) 2019/104 by Georges River Council (hereafter the Council) for changes in height and length of a privacy screen, described in the Development Application relating to Lot 58 DP 7972, also known as 38 Queens Road, Connells Point (hereafter the site).

Background

2. The MA under appeal was lodged with Council on 14 June 2019, seeking modification to the consent of Development Application (DA) 2017/0409. The DA was previously modified under MA 2019/0031, which was approved on 11 June 2019 to amend condition 7b, for the height of retaining walls to RL24.88 and to install Bamboo as landscape to a height of 4 m.
3. The MA, which is the subject of the appeal, was notified to residents, with one submission in objection received.
4. The Applicant appealed against the deemed refusal of the MA, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
5. The parties refer to the powers of the Court to assess and determine this appeal, pursuant to s 4.55(1A) of the EPA Act.
6. On 26 November 2019, the Court ordered a conciliation between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act). This commenced as a site view, where the Court heard from one resident objector from an adjoining property. As the parties were unable to reach an agreement, pursuant to s 34AA(2)(b)(i) of the Court Act, the conciliation was terminated, and the hearing for the appeal was held forthwith. The parties agree that the Court can rely on site observations, as well as submission of the resident objector.
7. Based on the evidence of the experts in joint conference, prior to the conciliation, the applicant sought and was granted leave by the Court, with no objection from the respondent, to rely on amended plans that form Exhibit A.

The Site

8. The site, which is currently occupied by a two storey dwelling with pool under construction, was approved under the previous DA (2017/0409).
9. The area of the site is a generally regular, rectangular shape oriented east-west, fronting Queens Road in the west for 18.29m. To the north, south and east of the site are primarily two storey dwellings of similar size and character. The area is under a period of transition, with larger, two storey dwellings replacing single storey, brick dwellings.
10. The land area of the site is 1210m², with a slight fall in an easterly direction.

The proposed amendment to approved consent under appeal

11. The MA seeks to modify the design and height of the privacy screen, which is located adjacent to the new pool, close to the northern boundary. The screen was previously approved and is shown in stamped architectural plans attached to the conditions of consent for the DA (2017/0409).
12. The parties agree that the issue of view loss is not pressed, after the onsite inspection revealed no significant impact to the distant district view corridor from 36 Queens Road. Therefore, the contentions that relate to the MA under appeal for the Courts consideration are: compatibility with the existing and future character; visual amenity impact; and as a consequence not in the public interest, due to precedence.

Relevant Planning Controls

13. Section 1.3 of the EPA Act, specifically Object (g), is relevant for the Courts consideration:

1.3 Objects of Act (cf previous s 5)
The objects of this Act are as follows:
...

(g) to promote good design and amenity of the built environment,

14. In the granting of consent for the MA the Court must be satisfied, pursuant to s 4.55(1A) of the EPA Act as follows:

4.55 Modification of consents—generally (cf previous s 96)
....
(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

15. The parties agree that the proposed modification is substantially the same as originally approved and was notified consistent with the Kogarah Development Control Plan 2012 (KDCP). Therefore, the requirements of subss 4.55(1A)(b) and (c) are satisfied.
16. The jurisdictional requirement therefore that the Court must be satisfied for the granting of this consent relates to s 4.55(1A)(a) of the EPA Act.
17. The contention with regards to the Kogarah Local Environmental Plan 2012 (KLEP) that the Court must consider relates to the aims of the plan, described in cl 1.2, and specifically satisfaction of (2)(a):

1.2 Aims of Plan
(1) This Plan aims to make local environmental planning provisions for land in Kogarah in accordance with the relevant standard environmental planning instrument under section 33A of the Act.
(2) The particular aims of this Plan are as follows—

(a) to guide the orderly and sustainable development of Kogarah,
...

18. The site is located in the R2 Low Density Residential zone. The objectives of the zone as described in cl 2.3 of the KLEP are as follows:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

19. The Court is referred to the following sections of the KDCP for consideration: height (Section 1.2); and fences (Section 4.2). The parties agree that there are no specific controls in the KDCP that relate to privacy screens.

Evidence

20. The Court heard evidence from the following planning experts: Ms Erica Marshall-McClelland for the Applicant; and Ms Linley Love for the Respondent. Their joint expert report is tendered as Exhibit 5.

Consistency with existing and future character

21. The key contention of Council is that the proposed (increased) height and bulk of the privacy screen is out of character with the local area and leads to visual amenity impacts to residents in 36 Queens Road. The design of the privacy screen is not in contention, as the experts agree it is consistent with the approved design of the dwelling. However, they disagree whether the materials and scale of the structure are excessively bulky.
22. The experts agree that the proposed location of the privacy screen is consistent with the side setback controls of the KDCP (setback 1.2m from the northern boundary), and the height of the screen, located on top of an approved retaining wall (together reaching to 5.2m above ground level) does not exceed the height standard, in cl 4.3 of the KLEP (at 9m). It is noted by the Court that the total height of the proposed screen is not accurately shown on the plans in Exhibit E. The proposed screen extends for a length of 15.3 m, adjacent to the pool, and projects approximately 1m beyond the edge of the balcony on the adjoining property.
23. The proposed privacy screen is separated from the (existing) 1.8m high boundary fence by an (DA) approved Bamboo (landscaping) to a maximum height of 4m. The balcony on the adjoining property (36 Queens Road) is separated from the privacy screen and the sites’ living room by approximately 2.3m and 11.35m, respectively.
24. The experts agree the effect of the proposed screening, when viewed from the adjoining (northern) property’s living area, main bedroom and balcony would be to see the top of the fence, bamboo vegetation and the full privacy screen. The effect would be to essentially block all direct visual sight between the adjoining dwelling and the new dwelling/pool on the site.
25. The parties accept that the balcony on the adjoining property (36 Queens Road) is an existing feature. This is the balcony that the applicant seeks maximum privacy protection from by the installation of the privacy screen (together with the approved landscaping).
26. Whilst the experts agree the design is of ‘high quality’, Ms Love contends that there is a visual impact to the adjoining property from the screen, which reaches to the height of the existing balcony balustrade. She states the proposed structure is not consistent with character of the area, due to its bulk and scale, which presents as ‘excessive scale that is out of context’. Therefore, she considers the built form of the proposed modification is inconsistent with the character objectives, specifically A1.5, of the KDCP.
27. Ms Marshall-McClelland describes the privacy screen as a ‘sculptural element’ that ties in with the architectural style of the approved dwelling. The steel beams that form the structure of the screen relate closely with the beams used in the external presentation in the dwelling. She does not however, discuss in detail the relationship of the proposed screen to the character of the area in general, although relies on the fact that it will not be visible from the street.
28. Whilst the experts agree, which I accept, that the proposed privacy screen may not be viewed from the street (Queens Road), I consider that the proposed structure will form a dominant feature when viewed from the adjoining property at 36 Queens Road.
29. The experts agree that there is no numeric or descriptive controls in the KDCP for ‘privacy screens’. Ms Love considers the controls that relate to fences, in Section 4.2, are the most relevant for assessment of the proposed structure.
30. The KDCP clearly describes ‘streetscape character’ as being more than what is viewed from the street, and includes the visual presentation to adjoining properties. In Section 1.1, the KDCP explains streetscape character as:

“Good design goes beyond the simple application and compliance with development controls. Careful consideration and systematic analysis of a site,
of its relationship with adjoining development, and consideration of any natural man-made constraints are essential starting points.
An assessment of the streetscape character and site analysis are the first steps in the design process and are used to ensure that a development is the best possible solution for a site and the immediate locality.
Streetscape refers to the way a street looks and helps to provide local amenity and identity. The presentation of buildings in a street is the most critical element and determines the character of not only the street, but the locality.
Good streetscapes are those in which the houses and associated spaces form attractive streets and neighbourhoods. New buildings, and alterations and additions to existing buildings need to be sensitive and in context with the
landscape setting and the environmental conditions of a locality.
Good streetscapes have:
Houses that fit together so that no single house is dominant (consistent
scale, rhythm, street edge and materials);
Well located garages, consistent with the adjoining properties;
Well designed fences;
Consistent street planting of an appropriate scale.”

31. The Mirriam-Webster definition of a fence is: a means of protection, defence; a barrier intended to prevent escape or intrusion or to mark a boundary. I find that based on this definition, the proposed structure, which is described by the applicant as a privacy screen, is in effect acting as a ‘fence’, as it is scaled to ‘protect’ the residents of the site from perceived visual privacy intrusion, and it is proposed in ‘defence’ of the adjoining property. I accept that the privacy screen does not form the boundary.
32. I consider the proposed height, length and structural frame of the privacy screen as excessive and contrary to being a well-designed feature in the streetscape. It is out of scale and character for the context in which it is proposed. The screen detracts from the streetscape character by its visual dominance in the rear yard, and does not provide a relationship to the adjoining property.
33. The effect of the privacy screen is as a barrier to any perceived visual intrusion, creating a ‘fortress of solitude’. The living area and pool on the site cannot be directly viewed from the living or bedroom areas of the adjoining dwelling, and only from its balcony. I consider the proposed screen is unnecessary, due to the distance of the living areas from each other and the effect of the approved bamboo landscaping will have to effectively screen the dwelling on the site from the neighbour.
34. The balcony on the adjoining property, which is an existing, approved development, was in evidence before the DA for the site was approved, and I consider the conditions of consent on the DA adequately address any potential visual intrusion. It is unreasonable for the applicant to borrow amenity from the adjoining residence. The effect of such a bulky screen would be to visually intrude and detrimentally impact the sense of space that the adjoining residents would feel on their balcony and in their living area.
35. I therefore find that the proposed privacy screen is inconsistent with the design requirements for streetscape character in the KDCP, and as a consequence does not satisfy the aims of the KLEP, specifically cl 1.2 (2)(a), for orderly development.

Whether modified consent has minimal environmental impact

36. The issues of amenity impact have already been considered above, whereby I determined that the proposed privacy screen will result in unacceptable and unreasonable visual impact to the residents of 36 Queens Road. The proposed height, length and bulk of the structural frame is excessive and unnecessary, which results in adverse impact to adjoining residents.
37. I am not satisfied that the proposed privacy screen, the subject of the MA under appeal, will have ‘minimal’ environmental impact, and therefore find it is inconsistent with s 4.55(1A)(a) of the EPA Act.
38. In addition, after consideration of the submissions made by the resident of 36 Queens Road, I find that the modification does not satisfy s 4.55(1A)(d) of the EPA Act, due to the potential for impact on their visual amenity.

Conclusion

39. I have carefully considered the evidence relevant to the MA under appeal, together with my observations during the onsite view. Based on the information before me in evidence, I am satisfied in my assessment, pursuant to s 4.55(1A) of the EPA Act, that MA 2019/104 should be refused.

Orders

40. Consequently, the orders of the Court are as follows:
    • (1) The appeal is dismissed.
    • (2) Modification Application 2019/104 relating to changes in height and length of a privacy screen, described in the Development Application relating to Lot 58 DP 7972, also known as 38 Queens Road, Connells Point is refused.
    • (3) The exhibits, except for Exhibits A, B, E and 1 are returned.

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Sarah Bish

Commissioner of the Court

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