Land and Environment Court of New South Wales CITATION : Drew Dickinson Architects v Manly Council [2005] NSWLEC 569 APPLICANT Drew Dickinson Architects PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10940 of 2005 CORAM: Hussey C Appeal :- Section 96 modification - basement carparking - extension of existing first floor balconies - addition to second floor balconies - addition to second floor units KEY ISSUES: LEGISLATION CITED: Manly Residential Development Control Plan 2001 DATES OF HEARING: 29/09/2005 EX TEMPORE JUDGMENT DATE : 09/29/2005 APPLICANT Mr A Pickles, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr R Graham, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 29 September 2005 10940 of 2005 Drew Dickinson Architectes v Manly Council This decision was given as an extempore decision. It has been revised and edited prior to publication. JUDGMENT 1 This appeal is against council's refusal to a s 96 modification to the original consent for a 3 level, residential flat building containing 4 units, over associated basement carparking at 7 Brighton Street, Balgowlah. The requested modifications include: + extension of existing first floor balconies of units 1 and 2 over the frontage of the building, + addition of second floor balconies to bedrooms, bedroom 1 of units 1 and 2, + additional front balconies to the second floor for units 3 and 4. 2 In considering this deemed refusal for the s 96 modification, I have considered these changes and in my assessment the modifications do relate to substantially the same development. Next I have considered the merits of these modifications on the basis of the following identified issues: loss of privacy and amenity to adjoining properties. 3 The main issue relates to overlooking and loss of privacy on the western side of development. However, at the on-site hearing the applicant has confirmed that privacy screens are to be erected at the end of balconies and clarified the specification. The privacy screens are to be attached to these balconies on the upper levels and incorporate fixed louvres so that they minimise overlooking opportunities. Also, the louvres on the western side of the property are to have a minimum height of 1.8 m. 4 From my observations on the view and consideration of the evidence, I am satisfied that this specification should prevent any unreasonable overlooking onto the adjoining neighbour, Ms Dashwood's property, who lodged an objection to the proposal. After further clarification of this proposed specification, she acknowledged that the proposed screens were acceptable and I consider this compromise reasonable, so as to allow this part of the modification. 5 With respect to the other balconies that front onto Brighton Street, the plans have now been revised to a minor extent to allow the extended balconies adjacent to units 1 and 2, but to incorporate divider/planter boxes on the street elevation. In my assessment, this should allow some improvement in the amenity of this units and the streetscape impact, without any significant disamenity and therefore I consider it is acceptable. 6 I note that in the controls, which is relevantly the Manly Residential Development Control Plan 2001 for Residential Zones - s 3.10 privacy and security including provisions for balconies. Section 3.10.1 contains the objectives including the following objective (c): to provide screening to outdoor living areas. Section 3.10.2 then contains the performance criteria of which the following is relevant: ( f) that architectural or landscape screens must be provided to balconies and terraces. 7 Accordingly it makes reference to Fig. 31, which shows preferred screening method. The modified plans that have been presented this morning, appear to reasonably satisfy these provisions of the DCP. Therefore, I consider that s 96 modification should be allowed in accordance with the plans presented in Exhibit 1. 8 Therefore the orders of the Court are: 1. The appeal is allowed. 2. The s 96 Modification of DA No. 444/03 at 7 Brighton Street, Balgowlah, is allowed subject to the additional conditions 88-94, in Annexure A. 3. No order as to costs. _______________________ R Hussey Commissioner of the Court rjs 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.