Schiano v Randwick City Council [2005] NSWLEC 81

Land and Environment Court of New South Wales

CITATION : Schiano v Randwick City Council [2005] NSWLEC 81

APPLICANT Ralph and Angela Schiano

PARTIES : RESPONDENT Randwick City Council

FILE NUMBER(S) : 11490 of 2004

CORAM: Nott C

Development Application :- First-floor addition to a house - size of proposed balcony - privacy of adjoining neighbours KEY ISSUES:

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

DATES OF HEARING: 01/03/2005 EX TEMPORE JUDGMENT DATE : 03/01/2005

APPLICANTS Mr & Mrs Schiano - in person

LEGAL REPRESENTATIVES: RESPONDENT Mr M Pearce, solicitor SOLICITORS Bowen & Gerathy

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Nott C

1 March 2005

11490 of 2004: Ralph and Angela Schiano v Randwick City Council

JUDGMENT 1 This is an appeal under s 97 of Environmental Planning and Assessment Act 1979 in respect of certain alterations to a dwelling house at 19 Balfour Road, Kensington. The main issue relates to a proposed first-floor balcony at the rear of the dwelling. 2 The parties agreed that the Court should make a binding determination under s 34 of the Land and Environment Court Act 1979. I met with the parties and witnesses at the site and have viewed the applicants' dwelling house as well as the neighbours' property at No. 17 Balfour Road owned by Mr and Mrs Hatsatouris. I heard evidence from the council from Mr I Burke, co-ordinator fast track, and from Mr Hatsatouris. The applicants represented themselves and gave evidence, and I heard brief evidence from Mr P Banfield who prepared the development application plans. 3 The subject site is zoned 2A under the Randwick Local Environmental Plan 1998. There are a number of development control plans that were referred to during the hearing, perhaps the most important being Development Control Plan—Dwelling Houses and Attached Dual Occupancies. In respect this DCP, I refer in particular to Pt 4.5 dealing with visual and acoustic privacy. 4 The council granted consent for the applicants' proposed balcony together with other alterations and additions to the dwelling house but imposed certain conditions that were objected to by the applicants. The council's consent is dated 29 July 2004. In respect of the proposed balcony, condition 6 states: