Lane Cove Local Planning Panel 14
November 2023
Section 4.55 Amendment
37 Vista Street, Greenwich
Subject: Section
4.55 Amendment 37 Vista Street, Greenwich
Record No: DA20/145-01 - 61800/23
Division: Planning
and Sustainability Division
Author(s): Andrew
Thomas
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Property:
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37 Vista Street, Greenwich
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DA No:
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D145/20
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Date Lodged:
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5 September 2023
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Cost of Work:
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N/a: section 4.55 application
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Owner:
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Derek Allan
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Applicant:
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Blue Sky Building Designs
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Description of the proposal to appear on
determination
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The amendment
of a privacy screen-related condition 2(a).
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Zone
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R2 Low Density
Residential
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Is the proposal permissible within the
zone
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Yes
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Is the property a heritage item
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No
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Is the property within a conservation
area
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No
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Is the property adjacent to bushland
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Yes, under the
definition of “Adjoining land” in the Dictionary of
the updated DCP 2009 that became operative from 1 October 2023 the site
adjoins bushland located within Holloway Reserve to the east of the
site.
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BCA Classification
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Class 1a and
10b
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Stop the Clock used
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Yes: 4 - 9
October 2023
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Notification
The
s.4.55 application was notified to the same properties and local community
association notified of the DA, and the local bushland society.
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Neighbours 29,
31, 33, 35, 39 and 41 Vista Street; 22 - 36 Chisholm Street and 2 Edwin
Street.
Ward Councillors East
Progress
Association
Greenwich Community Association.
Other
Lane
Cove Bushland and
Conservation
Society.
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REASON FOR REFERRAL TO THE LANE COVE
LOCAL PLANNING PANEL (the Panel)
This s. 4.55 (2)
application is referred to the Panel because of the concerns raised in the four
submissions received in response to its notification.
EXECUTIVE SUMMARY
· Development Application 145/20 (D145/20) proposed alterations and
additions to the dwelling house on this site.
· In December 2020, and under the relevant delegation, Council
approved D145/20.
· In approving the DA Council supported:
- a height variation of
10.35m, or about 9%, to the height standard of 9.5m under the Lane Cove LEP
2009; and
- two non-compliances
regarding the provisions for both overall height and setback from the
site’s southern side boundary under the Lane Cove DCP 2009.
- There were two submissions
to the DA; from the owners of 41 Vista Street and the son of the late owner of
39 Vista Street. Concerns raised included overlooking, from both the southern
side of a rear first floor level balcony, and a request to remove an adjoining
balcony on the southern side, to retain the privacy of both properties.
- Condition 2(a) and (b) were
imposed to address both concerns, respectively.
· Four submissions have been received in response to Council’s
notification of the s. 4.55 application: two from the same owners of 41 Vista
Street, and two from consultant’s acting on behalf of the current owners
of 39 Vista Street. Concerns raised include that the proposal is not a
modification to the consent and would not address overlooking.
· The alternative design measures proposed in this application to
address the purpose of condition 2(a) are reasonable.
· The application is supported subject to the amendment of the
following two conditions:
- condition 2(a), so that
this includes the alternative measures proposed; and
- condition 3, to ensure that
these measures are subject to an amended construction
certificate.
SITE
The site was
described in this Division’s assessment report of D145/20. The approved
works have been completed. The locality circumstances have generally not
changed since that time except that the previous single storey dwelling house
at 39 Vista Street has been demolished and works relating to the new dwelling
house approved on the site have commenced.
APPROVAL:
D145/20
(i) Consent
On 1 December 2020, and under the delegation of
the then Executive Manager Environmental Services, Council approved Alterations
and additions to residential dwelling house submitted under D145/20.
Condition 2 of this consent required changes
prior to the issue of a construction certificate To ensure privacy and
amenity to the southern neighbours. Condition 2, which was in two parts,
(a) and (b), states:
“2. The following changes required to be submitted for approval to the
Principal Certifier prior to the issue of a Construction Certificate.
(a) The
proposed rear 1st floor balcony shall include a privacy screen along
the southern perimeter to a minimum height of 1700mm above finished floor
level. The privacy screen is either be constructed as angled louvers, frosted
glass or another type of solid, non-transparent materials to prevent southern
views towards 39 and 41 Vista Street.
(b) The roof
area with planting adjacent to the 1st floor living room is
prohibited from being used as a trafficable extension of the rear 1st
floor balcony. The installation of a safety balustrade along this area is
prohibited.
Reason:
To ensure privacy and amenity to the southern neighbours”.
This s. 4.55 application proposes an amendment of
part (a) of the condition by:
· constructing a nib wall to prevent
access to the southern edge of the rear first floor balcony;
· treating the balcony balustrade with
translucent/obscure glass along its southern side; and
· installing a planter bed and planting
within it at the southern end of the balcony.
These proposed amendments are shown on plans
submitted with this application.
(ii) Construction certificate (CC)
· In April 2021 a CC for the approved
works was issued by private certifier.
· The approved works have been
completed.
· Although a louvred privacy screen was
constructed in the location required by condition 2(a), the spacing between its
louvres allowed views and overlooking of both neighbouring properties to the
south of the site at 39 and 41 Vista Street.
(iii) Written Directions Notice
(WDN)
In May 2023 the Certifier who issued the CC
issued a WDN to the principal contractor regarding these same louvred screens
because they did not comply with those required by condition 2(a). Following a
site review in June 2023, the same Certifier issued a WDN to Council confirming
the same.
PROPOSAL
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This s. 4.55 (2) application seeks to remove
the existing louvred screen installed under condition 2(a) and restrict
access to the southern end of the 3m deep rear
balcony that adjoins the first floor level living room and kitchen by:
· constructing a nib wall 500mm high
and setback 900mm from the southern edge of the balcony and in line with the
southern wall of the dwelling house;
· treating the 1m high balcony balustrade with translucent/obscure glass along its southern side; and
· installing a planter bed between the
nib wall and southern side of the balcony’s balustrade.
An existing 1m high fixed glass balustrade
prevents access from this same balcony to the area that is referred to under
condition 2(b) which adjoins the southern side of the living room at this
same level.
These proposed privacy measures have been
clarified on a revision of plans MOD109 and MOD111 in response to
Council’s request for confirmation of a matter relating to the nib
wall.
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PROPOSAL DATA/COMPLIANCE
There are no
changes to this development’s approved:
· height and floor space ratio under the Lane Cove LEP 2009, or,
· any of the numerical provisions assessed under the Lane Cove DCP
2009.
REFERRALS
This s. 4.55 (2) application did not require
referral to any Council staff who commented on the DA.
ASSESSMENT:
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 (the Act)
Assessment of
this s. 4.55 (2) application under this Act is addressed under the two
subheadings that follow.
1. SECTION 4.55
An
assessment of the proposal in relation to the relevant matters under s. 4.55
(2) and (3) of the Act follows.
Section 4.55 (2)(a) Is the modified development substantially the same?
Yes,
because the application proposes an amendment of condition 2(a) of consent
D145/20. Condition 2(a) was imposed to prevent views towards two neighbouring
properties to the south of the subject site from the rear upper level balcony
that formed part of the approved alterations and additions to the existing
dwelling house on the site.
The
proposed amendment seeks an alternative method of preventing these same views
and by doing so, it would reduce overlooking of the same two
properties.
Section 4.55 (2)(b) Consultation with the relevant Minister, public
authority or approval body
There
is no requirement to consult with any Minister, public authority or approval
body as a result of the proposed amendments.
Section 4.55 (2)(c) Notification of application to modify consent
The
application was notified to the same properties and local progress association
that were notified of the DA as well as the local bushland society.
Section 4.55 (2)(d) Consideration of submissions
Four
submissions have been received following Council’s notification of the
application. These submissions are addressed under the later subheading Section
4.15 (1)(d) Any submissions.
Section 4.55 (3) Assessment of the proposed modification
An
assessment of the proposal is required in relation to s. 4.15 of the Act. This
assessment follows.
2. SECTION 4.15 (1)
An
assessment of the proposal in relation to the relevant matters under s. 4.15
(1) of the Act follows.
Section 4.15 (1)(a)(i) The
provisions of any environmental planning instrument
The three environmental planning
instruments relevant to the assessment of this proposal are addressed under the
subheadings that follow.
1. The Lane Cove Local
Environmental Plan 2009 (the LEP)
The proposed
amendment of condition 2(a) would not:
· affect the approved height or floor space ratio of the dwelling
house on the site; or
· raise any issue in relation to the LEP.
2. SEPP (Biodiversity
and Conservation) 2021
From March 2022
the previous state environmental planning policies (SEPPs) relevant to the
development approved under D145/20 on this site were consolidated into SEPP
(Biodiversity and Conservation) 2021.
SEPP (Biodiversity
and Conservation) 2021 is divided into chapters.
Its two chapters relevant to this s. 4.55 application are addressed under the
subheadings that follow.
(i) Chapter 2
Vegetation in non-rural areas.
In summary, the
aims of this chapter are:
· to protect the biodiversity values of trees and other vegetation in
such areas; and
· to preserve the amenity of these areas through the preservation of
trees and other vegetation.
The site adjoins bushland located to the eastern side of the site
within Holloway Reserve. Council’s
development consent included tree-related conditions.
The proposed amendment of condition 2(a) would not affect any
trees, or nearby bushland.
(ii) Chapter
6 Water catchments
This applies,
inter alia, to the Sydney Harbour Catchment, in which the site is
located. In determining an application for development in this area, Council,
as the consent authority, must consider certain
matters, including whether development will:
· have a neutral or beneficial effect on the quality of water
entering a waterway; and
· increase the amount of stormwater run-off from a site,
In granting consent to development on land in this
catchment Council must be satisfied that, inter alia, the development ensures
the effect on the quality of water entering a natural waterbody will be as
close as possible to neutral or beneficial.
The amendment of condition 2(a) proposed in this s. 4.55
application would not affect the quality of water entering Gore Cove to
the east of the site that forms part of Sydney Harbour.
The proposed amendment of condition 2(a) does not raise any
issue in relation to either Chapter 2 or Chapter 6 of SEPP (Biodiversity and Conservation) 2021.
3. SEPP (Resilience and
Hazards) 2021
D145/20 was assessed having
regard to the former SEPP 55: Remediation of Land. The assessment stated
that given the type of use permissible within the site’s residential
zoning under the LEP it would be unlikely to be contaminated. From March 2022
this SEPP was consolidated into SEPP (Resilience and Hazards) 2021.
The proposed
amendment of condition 2(a) does not raise any issues regarding SEPP
(Resilience and Hazards) 2021.
Section 4.15 (1)(a)(ii) The
provisions of any draft environmental planning instrument
There is no draft environmental
planning instrument relevant to this proposal.
Section 4.15
(1)(a)(iii)) The provisions of any development
control plan
The two
development control plans relevant to the assessment of this proposal are
addressed under the subheadings that follow.
1. The Sydney
Harbour Foreshores and Waterways Area DCP 2005 (DCP 2005)
DCP 2005 accompanies the Foreshores
and Waterways Area controls under Chapter 6 Water catchments of SEPP
(Biodiversity and Conservation) 2021.
Both tree- and sediment and
erosion-related conditions were imposed to protect the area’s natural
environment, including measures to control the quality of water leaving the
site before entering Gore Cove to the east of the site within Sydney
Harbour.
Since the proposed amendment of
condition 2(a) would not affect vegetation within the site it would not raise
any issue in relation to clause 5.6 Planting of the Design Guidelines
for Land - Based Developments (the Guidelines) under Part 5 of DCP
2005, or stormwater leaving it.
The alternative measures proposed
in this s. 4.55 application to address views to the south from the upper level
rear balcony would have no discernible impact on the external appearance of the
subject dwelling house. Consequently, the s. 4.55 application does not raise
any concerns or issues regarding clause 5.3 Siting Of Buildings And
Structures, or clause 5.4 Built Form, under these Guidelines.
The proposed amendment of
condition 2(a) does not raise any concerns or issues in relation to DCP 2005.
2. The Lane Cove Development
Control Plan 2009 (the DCP).
The proposed
amendment of condition 2(a) does not affect any of the numerical provisions assessed
under the DA regarding the DCP.
section 4.15 (1)(a)(iv) Applicable
regulations
When D145/20 was
assessed the Environmental Planning and Assessment Regulations 2000 (the
2000 regulations) applied and condition 23 (79) of the consent was imposed to ensure the demolition
and removal of materials from the site complied with the relevant Australian
Standard.
The proposed
amendment of condition 2(a) does not raise any new issues in relation to the Environmental
Planning and Assessment Regulations 2021.
Section 4.15 (1)(b) The likely
impacts of the development
The proposed
amendment of condition 2(a):
· would have no impact on the natural environment; and
· would not change the approved height, bulk and scale of the approved
additions to the subject dwelling house.
The impacts of
the proposed amendment of condition 2(a) on the two neighbouring properties to
the south of the site, at 39 and 41 Vista Street, are addressed under the later
subheading Section 4.15 (1)(d) Any submissions.
Section 4.15 (1)(c) The
suitability of the site for the development
Under consent D145/20 Council
approved alterations and additions to the dwelling house on the site that
included a new upper level with a rear balcony. The site remains suitable for
the proposed amendment to the privacy-related measure imposed under condition
2(a) of this consent.
Section 4.15 (1)(d) Any
submissions
Four submissions have been
received following Council’s notification of this application from:
· an
Architect and a town planning consultant acting for the owners of the adjoining
property to the south of the site, at 39 Vista Street; and
· the
owners of a neighbouring property to the south of the site, at 41 Vista Street,
who have made two submissions.
A summary of the concerns and
issues raised in the four submissions, the Applicant’s town planning
consultant’s (Applicant’s TPC) response to these submissions and my
comment (Assessment Planner) on these matters follows.
1. Overlooking
· Proposal
would not prevent overlooking of the two properties at 39 and 41 Vista Street,
including their rear yards, a pool, terraces and a bedroom of the latter.
· Approved
plans, and plans submitted with this application, show large plants in front of
an unscreened window (on the southern facade at the upper floor level) - this
was never implemented properly and has failed as a screening method.
· A
desire for a view should not trump our right to privacy.
· Condition
2(a) should remain.
Applicant’s TPC comments
· The
three proposed privacy measures will ensure no overlooking impact into 41
Vista Street.
· The
SEE confirms that there would be a minimum separation distance of 26m from the
dwelling house on 41 Vista Street to the southern edge of the subject dwelling
house.
· The
three proposed privacy measures will result in an improved outcome for
adjoining owners compared to the current Condition 2(a).
Assessment Planner’s
comments
· As
the dwelling house under construction on the adjoining property to the south of
the site, at 39 Vista Street, would be on three levels it would significantly
screen the rear of the existing dwelling house on three levels at 41 Vista
Street. Those parts of the rear of this dwelling house that might be overlooked
when standing on the subject balcony would be limited to its southern end,
including part of its main bedroom window on its upper floor level.
The roof, a
retractable awning, a privacy screen and a tree along its northern side
boundary would help to screen a significant portion of its middle floor level
living room windows.
The same tree
and other vegetation on this boundary would help to reduce overlooking of the
windows at its lower level that also have retractable awnings, and the northern
end of a main grassed area.
Any potential
overlooking of the rear of this same dwelling house and its adjoining grassed
area would be reduced when siting on the subject balcony.
· The
main rear yard of 41 Vista Street includes numerous trees that largely prevent
it from being overlooked.
· An acceptable
solution to achieve visual privacy of habitable room windows between
dwellings is 9m under the Commonwealth Government’s Australian Model
Code for Residential Development (AMCORD) of 1995. The minimum distance
between the rear of the subject dwelling house at 37 Vista Street and the rear
of the dwelling house at 41 Vista Street is about 22m, and about 32m to the far
southern end of the latter, i.e., between almost two and a half and three and a
half times that addressed in AMCORD.
· A
combination of:
- the design measures to address overlooking
proposed in this application;
- the scale and privacy features of the
dwelling house under construction at 39 Vista Street;
- the privacy features at the rear of the
dwelling house at 41 Vista Street and some of its landscaping; and
- the distance separating the rear of 37 and
the rear of 41 Vista Street,
should result
in a low and insignificant level of overlooking of this neighbouring
property.
· The
dwelling house under construction at 39 Vista Street includes a rear balcony,
alfresco area, deck, terrace and an inground swimming pool/spa. However, as
these features are generally covered by a roof, or include a privacy screen at
their northern end, overlooking of the rear of this property would not be
significant.
· The
proposed planting shown at the southern end of the rear balcony is indicative
and no species or their height has been stated; consequently, its purpose would
appear to benefit the owners of the subject property.
· Planting
shown in the setback area on the southern side of a living room window is not a
matter for consideration under this assessment.
· This
s. 4.55 application proposes a reasonable compromise between addressing
overlooking of the two neighbouring properties at 39 and 41 Vista Street, and
providing an improved outlook for the owners of the subject site.
2. Screening measures
· Modern
screens have been used successfully in dwelling houses in the area.
· The
proposed planter bed/box and its vegetation, and the treated glass balustrade, would
not prevent overlooking of properties to the south.
· Planting
cannot be guaranteed to grow or be retained.
· A
planter bed/box is not a permanent structure and could be moved.
· Neighbours
cannot ensure compliance or enforce the proposed alternative measures.
· The
SEE states primary views from 37 Vista Street are to the southeast towards the
CBD and Harbour; as the dwelling house on that site is closer to its rear
boundary than the dwelling house under construction on 39 Vista Street, the
privacy screen imposed by condition 2(a) would not block its primary
view.
Applicant’s TPC comments
· To
address the concerns that:
- planter
boxes are not permanent structures; the owners of the subject site would accept
a condition requiring this to be permanently fixed and for this to be
shown on CC plans; and
- neighbours
cannot ensure compliance, or address enforcement; would be addressed by this
same condition.
Both Council
and neighbours have a right to ensure compliance in the Land and Environment
Court should this proposed condition be breached.
· Standing
on the balcony, or within the eastern portion of the dwelling ……
the primary view from the subject dwelling house to the south-east is
significantly impacted.
Assessment Planner’s
comments
· The
installation of privacy screens is often used to address overlooking concerns
in dwelling houses. However, alternative methods can include the combined use
of planter beds/boxes, to ensure a viewer is setback from the area causing
overlooking, and allowing a lower privacy screen, or treated balustrade, to
also allow improved views for owners. In the right combination of setback and
privacy screen, or treated balustrade, planting should not be required. The
combined approach proposed in this s. 4.55 application would result in a
satisfactory reduction in potential overlooking of both properties to the south
of the site whilst improving views for the owners of the subject site.
· This
assessment report supports the alternative measures proposed in this s. 4.55
application to allow an amendment of condition 2(a), including the property
owners recent offer of a fixed/secure planter bed/box.
· Any
amendment of condition 2(a) can be enforced by Council. If an amendment of
condition 2(a) is appealed, this appeal can either be upheld, or dismissed, by
the Land and Environment Court (NSW).
· The
primary, or main, views both from inside the rear upper level living room and
kitchen and their adjoining rear balcony, are between mature trees towards the
southeast and include views of parts of the Sydney Harbour foreshore of Berry
Island and Balls Head Reserve and the CBD beyond. The outlook from
these same areas towards the south is also restricted by mature trees and is
generally confined to the storage facilities within the Viva Energy site
on the foreshore of Gore Cove.
3. SEE deficiencies
The Applicant’s SEE does
not:
· state
how condition 2 would be modified and therefore, this s. 4.55 application is
deficient;
· state
why the proposed modification is necessary;
· assess
the impact of the proposed modification on the adjoining property at 39 Vista
Street as required under s. 4.55(3) of the Act; the impact of the proposed
modification on this property would be significant compared to that addressed
in condition 2; and
· address
the privacy screen installed along the southern edge of the rear upper floor
level balcony that is inconsistent with condition 2 despite a CC being issued.
Applicant’s TPC comments
· The
SEE confirms this s. 4.55 application seeks to replace condition 2(a) with the
details on the submitted plans; hence, these plans would become an amended
condition 2(a).
· The
sight line diagram prepared by the Architect with this s. 4.55 application
proves that someone sitting or standing on the balcony ….. will
not be able to directly look down into 39 Vista Street.
· The
approved dwelling house and its pool at 39 Vista Street are both mentioned in
the SEE.
· A
photograph of the privacy screen installed is shown in the SEE (under
Annexures).
Assessment Planner’s
comments
· This
s. 4.55 application states that condition 2(a) would be modified by the
measures addressed in the submitted Statement and plans. Whilst the wording of
an amendment of condition 2 (a) has not been proposed this is not unusual and
is a matter to be addressed in this report to the Panel.
· The
s. 4.55 application argues that if the proposed privacy measures replace those
required under condition 2(a) the current primary views from the balcony would
be unimpeded whilst maintaining reasonable privacy of both properties to the
south of the site. From my inspection, whilst views from the subject balcony in
both directions are impeded by mature trees, the current privacy screen is a
further impediment to these same primary views.
· The
applicant has supplemented the Modified SEE submitted with the application with
a response to the submissions received following its notification by Council
and further correspondence dated 3 November 2023. These three documents have
addressed the proposal’s impact on both 39 and 41 Vista Street. A
statement in the latter document addresses the privacy measures highlighted on
attached extracts of the construction certificate plans of 39 Vista Street that
were not stated in a submission on behalf of its owners and confirms that there
will not be unreasonable overlooking into either property. This assessment
report agrees with this
statement.
4. Modification tests (not the
same development)
The approved development is Alterations
and additions to residential dwelling house and the s. 4.55 application
description is the same.
As the modified development is
not substantially the same as the approved development, Council is unable to
consent to the proposed modification.
As the proposed modification would
be significantly inferior to the maintenance of condition 2(a) the proposal
should fail.
A determination of whether the
modified development is substantially the same development as that for which
consent was originally granted should have regard to the historical decisions
of the Land and Environment Court as discussed in the SEE.
The SEE refers to the two limbs
addressed in Moto Projects (No. 2) Pty Limited v North Sydney Council (1999)
(Moto) being:
· a
finding of fact that compares the development as approved with the development
as proposed to be modified - the finding must be that the modified development
is essentially or materially the same as the approved development; and
· a
comparison of these same two issues that requires an appreciation,
qualitative, as well as quantitative, of the developments being compared
in their proper contexts, (including the circumstances in which the
development consent was granted).
In Moto, the proposed
modification was assessed against these two limbs: -
· a physical
change was the deletion of a vehicular ramp to a club and the use instead
of a right-of-way as the only means of access to the premises;
· qualitatively,
the proposed change to access the premises involved an important physical
feature;
· the
separate access to the premises was a material and essential physical
element of the approved development – and was held to be important
in the Court’s judgment in allowing the appeal and granting consent (to
the DA); and
· because
of the proposed deletion of the access ramp to the club, such that all
traffic accessing the premises would now have to use the right-of-way, materially
changes the approved development to an extent that the modified development
is not substantially the same.
Where a development contains more
than one element the fundamental elements of the original development must be
identified. Where a modification seeks to alter those fundamental elements to
such a material degree a determination is required as to whether the
modification is substantially the same development.
Condition 2 was imposed to
address the significant impact the use of the balcony would have on the privacy
of adjoining development that required a privacy screen to prevent southern
views towards 39 and 41 Vista Street …..is an essential element of the
consent.
This modification proposes
removal of this privacy screen and its replacement with an inferior attempt
to satisfy the privacy required to these same two properties. Hence, as with Moto,
this modification would materially change the approved development and it is
open to the Council to conclude that the development, as proposed to be
modified, would not be substantially the same as that which was
approved.
If Council decides that the
proposed modification is substantially the same development, then the s. 4.55
application is subject to assessment regarding s. 4.55(2) and (3) of the Act
which require Council to consider matters under s. 4.15(1) relevant to the
development. However, the SEE does not address s. 4.15(1) – it does not
mention the dwelling house under construction at 39 Vista Street which includes
a pool, spa and alfresco area at the rear that would all be overlooked despite
the proposed amendment, or its living and dining areas that have direct access
to the alfresco area, and therefore condition 2(a) should be retained to
prevent these areas from being overlooked.
The SEE should address s.
4.15(1)(b) of the Act by assessing the likely impacts of the development. To
assist in this assessment, the Court has developed several Planning
Principles, including those discussed in the following two Court cases.
In Super Studio v Waverley
(2004) – (Super Studio), the Court addressed the use of
landscaping as a privacy screen and confirmed that …where proposed landscaping
is the main safeguard against overlooking, it should be given minor weight.
The landscaping within a proposed
planter bed to achieve privacy is not appropriate and as it this s. 4.55
application’s main limb …… should fail when it
is compared to the requirements of condition
2(a).
In Davies v Penrith
City Council (2013) the Court addressed five questions regarding
the assessment of the impacts of a development on neighbouring properties. Each
of these impacts is addressed below.
(i) Its impact on amenity,
including the level of privacy lost ?
This has been discussed under Super
Studio above.
(ii) How reasonable is the
proposal causing the impact ?
In its assessment of the DA,
Council concluded overlooking from the rear upper level balcony was a concern
and required condition 2(a) to address this concern. The proposed modification
would not provide a reasonable solution to the issue of privacy to 39
Vista Street.
(iii) How vulnerable is the
property impacted by the development ? Would it require the loss of reasonable
development potential to avoid the impact ?
This has also been discussed
under Super Studio above. The proposed modification would increase
that vulnerability and would not provide a solution to the issue of
privacy for No. 39 Vista Street.
(iv) Is the impact caused due
to poor design? Could the same level of amenity be achieved for the applicant
while reducing its impact on neighbours?
The proposed modification is of
significantly poor design because it promotes overlooking contrary to the
requirements of condition 2(a). The Court’s opinion on the suitability of
landscaping has been addressed in Super Studio above.
(v) Does the proposed
development comply with the planning control ?
The modification proposed is
contrary to established Planning Principles and condition 2(a) provides
a solution to the issue of privacy of 39 Vista Street.
Applicant’s TPC comments
· This
s. 4.55 application satisfies both the Quantitative and Qualitative limbs
under Moto because:
- qualitatively, the modification is satisfied
because the s. 4.55 application is also for alterations and additions to a
dwelling house as per the DA; and
- quantitatively, the current privacy screen
required under condition 2(a) forms only a very small part of the
approved development; furthermore, the proposed planter bed, the vegetation in
it and an obscure glass balustrade, also form only a very minor part of
this approval;
- in addition, the proposed three new privacy
measures are only a very minor part of the development consent.
· I
agree, that condition 2(a) seeks to prevent the impact of overlooking from the
rear upper level balcony to 39 Vista Street; the proposed modification will
prevent such overlooking to a greater degree than the current condition.
· The
proposed modification does not rely solely rely on proposed landscaping in the
planter bed; there are three proposed privacy measures, including landscaping,
which is not the main limb as claimed and as misinterpreted; the two other
proposed privacy measures - the planter bed, that would move people away from
the southern edge of the balcony, and obscure glazing, that would assist in
blocking views down into 39 Vista Street - are not discussed in the
submission.
Assessment Planner’s
comments
· It
appears that the criticism of the description used in this s. 4.55 application
could be why it is believed that the application is flawed. Whilst its
description repeats that used for the DA, it seeks amendment of condition 2(a).
· It
would not matter if this application sought to delete condition 2(a), rather
than amend it, as proposed; however inferior it may seem to the original
wording, it is still an application seeking amendment of this condition and therefore
must be assessed by Council.
· Moto
is extensively discussed in one of the submissions on behalf of the owners of
39 Vista Street and is also discussed by the Applicant’s TPC.
Irrespective of the qualitative and quantitative tests discussed
by these two consultants in that judgment, the s. 4.55 application is
reasonable because it merely seeks to amend a condition of consent by
alternative physical measures that would satisfy the reason given for the
condition.
· Irrespective
of those matters considered and not considered by the Applicant’s TPC in
relation to the Environmental Planning and Assessment Act 1979, this
report has addressed all relevant matters, including the proposal’s
impact on the adjoining property at 39 Vista Street. The Applicant’s TPC
has recently made further comments about the proposal’s impact on this
same property, including some of its own privacy-related measures not discussed
in the submission.
· In
relation to the Planning Principles mentioned, landscaping within the
planter bed is not essential to address overlooking; the setback created by the
planter bed and the treatment of the balcony balustrade, are the two measures
that are proposed in combination to address overlooking; any landscaping in the
planter bed would be superfluous to these
measures.
Section 4.15 (1)(e) The public
Interest
The proposed
amendment of condition 2(a) of the development consent D145/20 in the plans
submitted with this s. 4.55 application is reasonable and would have no adverse
impact on any neighbouring property, the streetscape of Vista Street, adjoining
bushland or Gore Cove. Therefore, approval of this application to
amend this condition would not be contrary to the public interest.
CONCLUSION
Condition 2 of
the consent D145/20 for alterations and additions to the existing dwelling
house on 37 Vista Street, Greenwich, sought to ensure privacy and amenity to
the southern neighbours i.e., at 39 and 41 Vista Stret, Greenwich.
Condition 2 was divided into parts (a) and (b):
· Condition 2(a) sought to treat a rear first floor balcony to
prevent southern views towards these same two properties; and
· Condition 2(b) prohibited the use of an area on the southern side of
this same adjoining rear balcony from being trafficable.
This s. 4.55(2)
application seeks to amend condition 2(a) by physical design measures. However,
these proposed measures would not:
· affect the approved height or floor space ratio of the dwelling
house on the site under the Lane Cove Local Environmental Plan 2009 (the
LEP), and would not raise any issues in relation to the LEP;
· raise
any issues in relation to the two state environmental planning policies (SEPPs)
that are relevant to development on this site, being SEPP (Biodiversity and
Conservation) 2021, and SEPP (Resilience and Hazards) 2021, or the Foreshores
and Waterways Area DCP 2005 that accompanies part of the former SEPP; and
· affect any of the numerical provisions of the Lane Cove
Development Control Plan 2009 addressed at the time of the assessment of
D145/20.
Four submissions
have been received from, or on behalf of, the owners of 39 and 41 Vista Street.
The primary concerns raised are that :
· this s. 4.55 application is not substantially for the same development;
and
· the proposed measures would not prevent overlooking of these same
two properties.
However, this s.
4.55 (2) application is substantially the same development because it seeks an
amendment of condition 2(a) by other physical measures. These proposed measures
would reduce the potential for these same to adjoining properties to be
overlooked to a reasonable degree whilst allowing improved views from the rear
upper floor level of the dwelling house on the subject site.
Matters in
relation to both s. 4.15 and s. 4.55 of the Environmental Planning and
Assessment Act 1979 have been satisfied.
On balance, as
the proposed development would:
· be reasonable; and
· have no adverse impacts on the neighbouring properties at 39
and 41 Vista Street, Greenwich,
the s. 4.55 (2)
application is recommended for approval subject to:
(i) the
amendment of the following two conditions:
- condition 2(a); and
- condition 3 (1), to ensure
the physical measures proposed under this amendment of condition 2(a) are
subject to an amended construction certificate,
as shown in bold
italics under Part A of the Recommendation to this report, respectively.
All the other
conditions of the original development consent would remain relevant and
therefore are retained as indicated under Part B of this same Recommendation.
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RECOMMENDATION
That pursuant
to Section 4.55 of the Environmental Planning and Assessment Act 1979, the
development consent to Development Application 145/2020 granted on 1 December
2020 for Alterations and additions to residential dwelling house on 37 Vista
Street, Greenwich is amended in the following manner:
PART A The
amendment of conditions 2(a) and 3 to read:
2. The following changes required to
be submitted for approval to the Principal Certifier prior to the issue of an
amended Construction Certificate.
(a) The
proposed rear 1st floor balcony shall include a privacy screen
along the southern perimeter to a minimum height of 1700mm above finished
floor level. The privacy screen is either be constructed as angled louvers,
frosted glass or another type of solid, non-transparent materials to prevent
southern views towards 39 and 41 Vista Street.
The southern end of the balcony is to include a fixed planter bed
and the full height of the southern side of the balcony balustrade is to be
treated in translucent/obscure glass, as shown on the following five plans
submitted with a s. 4.55 application in September 2023:
· First Floor Plan: MOD 105; Issue 3, dated 10.07.2023;
· East Elevations: MOD 106; Issue 3, dated 10.07.2023;
· South Elevation: MOD 109; Issue 4, dated 10.07.2023;
· Sections: MOD 110; Issue 4, dated 10.07.2023; and
· Sections: MOD111; Issue 4, dated 10.07.2023,
by Blue Sky Building Designs.
(b) The roof
area with planting adjacent to the 1st floor living room is
prohibited from being used as a trafficable extension of the rear 1st
floor balcony. The installation of a safety balustrade along this area is
prohibited.
Reason:
To ensure privacy and amenity to the southern neighbours.
3. (1)
The submission of an amended Construction Certificate and its
issue by Council or Principal Certifier PRIOR TO CONSTRUCTION WORK
commencing.
Reason:
Ensures the detailed construction plans and specifications comply with
the requirements of the Building Code of Australia (BCA) and any relevant
Australian Standard.
Part B The retention of all the other
conditions of the development consent, being conditions 1,
4 - 57, inclusive.
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Mark Brisby
Director - Planning and Sustainability
Planning and Sustainability Division
ATTACHMENTS:
There are no supporting documents for this report.
