Land and Environment Court of New South Wales CITATION : Casthaven v Randwick City Council [2007] NSWLEC 125 APPLICANT Casthaven Pty Limited PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 11235 of 2006 CORAM: Brown C KEY ISSUES: Development Application :- conditions imposed on approval - privacy screens - balcony width LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 28/02/2007 EX TEMPORE JUDGMENT DATE : 28 February 2007 APPLICANT Mr G Fitzgerald, company director LEGAL REPRESENTATIVES: RESPONDENT Ms T Litt, solicitor SOLICITORS Shaw Reynolds Bowen & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 28 February 2007 11235 of 2006 Casthaven Pty Limited v Randwick City Council JUDGMENT 1 COMMISSIONER: This is an appeal against conditions imposed by Randwick City Council (the council) on the approval of Development Application 934/06 for alterations and additions to an existing building at 15 Sully Street Randwick (the site). 2 The site contains a two-storey duplex styled double brick dwelling containing two separate dwellings with an attached garage is located on site. The surrounding development provides for a mixture of single and two-storey freestanding and semi-detached dwellings and some multi-unit housing development. 3 The development application provides for the demolition of an existing fibro garage and rear decks and the construction of a new garage with storage beneath to the side of the existing building, new rear ground and first-floor decks and internal alterations to the dwelling. 4 The proceedings were heard as an On Site Hearing on 28 February 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site. 5 The applicant originally appealed against conditions 2, 5, 6, and 7 of the council's approval however following discussions between town planners Mr Bruce Goldsmith from the applicant and Mr Perry Head from the council only condition 2 was still at issue. 6 Condition 2 states: 2. A privacy screen having a minimum height of 1.8 metres is to be provided to each in of the new decks, at both levels to preserve a reasonable degree of privacy to the adjoining properties, the screens shall be constructed of either fixed timber battens, obscure glazing or lattice. Details of compliance are to be provided in the construction certificate plans. 7 The applicant proposed privacy screens for both ends of the upper deck to a height of 1.5 m consisting of translucent glass to a height of around 1.0 m with the remaining height consisting of louvres. The western end of the lower balcony is to have a similar privacy screen and a higher boundary fence is proposed to address overlooking from the east. 8 Three residents provided evidence on site. Mr Peter Kardashinsky of 13 Sully Street and directly to the west of the site expressed concern over the potential loss of privacy and the 3.5 m depth of the balcony that would allow the congregation of people with consequent noise impacts. Mr Angus Corbett of 31 Meymott Street and Mr Sofoclis Michael of 29 Meymott Street whose properties are located to the rear of the site with a frontage to Meymott Street expressed similar concerns to Mr Kardashinsky. 9 With the benefit of the site view I am satisfied that the screens proposed by applicant will provide an acceptable level of protection from overlooking. The greatest potential for overlooking is to the recently constructed deck at the rear of Mr Kardashinsky's dwelling however with the screen provided on his deck and the screen proposed on the subject site the opportunity for overlooking is clearly minimised. I also accept that a height of 1.5 m for the screens (rather than 1.8 m as per condition 2) is suitable for the proposed screen taking into account the lower level of the deck on Mr Kardashinsky's dwelling (see new condition 2). 10 Mr Goldsmith and Mr Head reached an agreement that provided a deck width of 3.5 m. This was more than the 2.5 m required by condition 5 but less than the 4.38 m sought in the application. Mr Kardashinsky, Mr Corbett and Mr Michael opposed the additional 3.5 m width, as it would provide a greater area for people to congregate and potentially create a noise nuisance. 11 In response, I am satisfied that the 3.5 m width is reasonable in circumstances of this case where extensive views are available towards Botany Bay. It is the same width as Mr Kardashinsky's recently approved deck although the proposed deck in area larger because of the additional length. While there is always the potential for activities on the deck to create a noise nuisance there are no special circumstances that would suggest that it is likely to create any additional problems beyond activities normally associated with a residential area (see new condition 5). 12 The treatment to the boundary fence with Mr Corbett's property is also an appropriate response, as it will also provide screening of the walkway adjoining the common boundary where little protection from overlooking is presently available (see new condition 7A). 13 The Orders of Court are: 1. The appeal is upheld. 2. Condition 2 of development consent No. 934/2006 ("the Consent") is deleted and replaced with the following: 2. The upper and lower level decks shall have 1.5 m high privacy screens along their western sides and the upper level deck shall also have a 1.5 m high screen along its eastern side. The privacy screens shall be constructed of 1 m high frosted glazing with a 500 mm louver screen on top. The louvers shall be angled away from the adjoining properties in order to prevent unnecessary overlooking. Details of compliance are to be provided in the construction certificate plans. 3. Condition 5 of the Consent is deleted and replaced with the following: 5. To reduce the potential for overlooking of adjoining properties and noise nuisance the decks are to be reduced in depth to a maximum of 3.5 m and plans are to be amended with the Construction Certificate application. 4. Condition 7A is added to the Consent as follows: 7A. The applicant shall construct at its own cost a lapped and capped timber fence along the eastern boundary of the property adjoining 29 Meymott Street, Randwick, with the boundary to be verified by a survey to be provided to the Council prior to the erection of the fence. The fence shall be erected only between the existing brick wall at the northern end of the side passage and the concrete landing outside the lower level deck. The fence shall be no higher than 1.8 m above the levels of the pathway and concrete landing along the eastern boundary of the subject site. Plans accompanying the Construction Certificate application are to be amended accordingly. 1 Advisory Notes The Applicant shall discuss the proposed fencing with the adjoining property owner and provide proof of their agreement to the proposed fencing to the Council prior to the erection of the fence. Nothing in this condition shall construe the fence to be erected as being the property of the Applicant. The fence is jointly the property of the Applicant and the adjoining owners. ______________ G T Brown 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.