Privacy Conditions Removed in Recent Land and Environment Court Decision

The Land and Environment Court of New South Wales ruled to remove conditions related to visual and acoustic privacy after assessing the specific layout and angles of the properties involved, finding that the conditions were not necessary to meet the criteria set forth in the Development Control Plan.

Land and [ADDRESS] of New South Wales

CITATION : [NAME] v Waverley Council [2008] NSWLEC 95

APPLICANT [NAME] for [NAME] v Waverley Council PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 11282 of 2007

CORAM: [NAME] ISSUES: Appeal :- modification of development consent - privacy - noise

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 28/02/08

EX TEMPORE JUDGMENT DATE : 28 February 2008

APPLICANT [NAME], agent

LEGAL REPRESENTATIVES: RESPONDENT [NAME], solicitor SOLICITORS [NAME]

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

[NAME]

28 February 2008

11282 of 2007 [NAME] for [NAME] v Waverley Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of an application to modify the approval of Development Application No 546/06 by Waverley Council for alterations and additions to an existing detached dwelling house at [ADDRESS] (the site) by the deletion of two conditions.

2 The conditions in dispute are: Condition 2(b), which states: The window at the attic level on the eastern elevation is to be provided with a minimum sill height of 1.5 m from the finish for level, in order to retain an acceptable level of visual privacy for the property at [ADDRESS] .

Condition 2(d), which states: An obscure glass privacy screen to the bridge be installed in lieu of the planter. 3 The issues in the proceedings relate to the potential loss of visual and acoustic privacy for the property at [ADDRESS]. This site is currently vacant although significant excavation is currently underway to allow for the residential development of the property.

4 The proceedings were conducted as a s 34 Preliminary Conference under the Land and [ADDRESS] 1979. The parties did not reach agreement under s 34(3)(a) however the parties consented to me as Commissioner disposing of the proceedings without further hearing under s 34(3)(b)(ii). 5 The owner of the property at [ADDRESS] provided evidence on site and explained the potential loss of acoustic and visual privacy. The owner of the property at [ADDRESS] also provided evidence and supported be removal of condition 2(d) as the obscure glass privacy screen would block the narrow view corridor from her property to the east and the Pacific Ocean.

6 Clause 5.6 of Waverley Development Control Plan 2006 (DCP 2006) provides requirements for privacy and noise control. The clause deemed to have not been achieved unless the strategies and controls have been satisfactorily addressed. Relevantly, the objectives seek to minimise the extent of overlooking to internal areas and open spaces of other dwelling house development (Objective (a)) and ensure that overlooking impacts minimised upon the existing dwellings from other buildings (Objective (b)). The strategy requires that people in a dwelling cannot easily look into other dwellings or the usable open space of other dwellings (Strategy 5.6.1). The relevant control requires windows not to directly face windows and/or balconies of other dwellings and in the event this cannot be achieved ameliorative methods are provided. 7 The window, subject to the requirements of condition 2(b) is associated with a family room and is located on the upper level of the three-storey dwelling and has extensive views to the east of the Pacific Ocean. The areas of concern to the adjoining property owner relate to a bedroom and private recreation area. As the dwelling at [ADDRESS] has not been constructed an assessment of the potential impact was undertaken through the use of the approved plans for both 19 and [ADDRESS]. Based on an assessment of these plans I can comfortably conclude that condition 2(b) can be deleted. The bedroom on the adjoining property is located at a relatively acute angle from the subject window, around 2 m below the window and a distance around 13 to 15 m away. The proposed private open space area is even more difficult to view from the subject window, being at a more acute angle from the subject window. DCP 2006 does not require total privacy and I am satisfied that the requirements of cl 5.6 of DCP 2006 are satisfactorily addressed in that the potential loss of visual and acoustic privacy is minimised, the windows do not face each other and that people cannot easily look into other the rooms or private open space of the adjoining dwelling.

8 Similarly, I find there is no reason for the imposition of condition 2(d). The required screen is to be located on a walkway that provides access between the new roof level to the upper level of the rear yard that contains a pool area. It is an access area and provides no reason or opportunity for the congregation of people that may impact on privacy to the adjoining property. The area cannot reasonably be classified as a deck or balcony area and therefore be subject to the requirements of cl 5.6 of DCP 2006. Importantly, the location of an obscure screen in this location also denies the limited views to the Pacific Ocean for the property at [ADDRESS]. 9 The Orders of the Court are:

1) The appeal is upheld.

2) The application to modify the approval of Development Application No 546/06 for alterations and additions to an existing detached dwelling house at [ADDRESS] is approved by the deletion of condition 2(b) and condition 2(d).

3) The exhibits are returned.

_____________ [NAME] Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.