Land and Environment Court of New South Wales CITATION : Walker & Walkden v Leichhardt Municipal Council [2004] NSWLEC 406 FIRST APPLICANT A Walker SECOND APPLICANT PARTIES : J Walkden RESPONDENT Leichhardt Municipal Council . FILE NUMBER(S) : 10502 of 2004 CORAM: Moore C KEY ISSUES: Appeal :- Enforcement of Order to demolish unapproved structure LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 26 July 2004 EX TEMPORE 07/26/2004 JUDGMENT DATE : Second Applicant in person LEGAL REPRESENTATIVES: RESPONDENT Ms A Sowden, solicitor Leichhardt Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 26 July 2004 04/10502 A Walker & J Walkden v Leichhardt Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal by Ms J Walkden against an order of Leichhardt Municipal Council (the council) requiring the demolition of a privacy screen or safety fence between properties known as 192 and 192A Short Street at Birchgrove. The appeal by her neighbour was not being pursued as a result of a change in ownership. 2 The offending structure is located between the roof terraces at the third level of the two properties and is on the southeast of the site. 3 I have had tendered to me in these proceedings a copy of the approved development consent plans for the erection of the two new dwellings located on the site - that being Development Consent 999 of 2000. 4 My examination of those plans makes it clear that, at the roof terrace level, that which was shown on the plans was a masonry dividing structure 1 m high between the two roof terraces. 5 There is nothing on the any of the plan drawings, the elevations or the section which could lead to any inference that any structure higher than 1 m was the subject of the application or consented to by the council. 6 The second applicant had subsequently applied for a modification pursuant s 96 of the Environmental Planning and Assessment Act 1979 seeking a 2.1 m high structure between the two roof terraces. The council refused this. 7 In that s 96 modification application, consent was granted to a number of other matters and conditions were imposed embodying restrictions that, by necessary implication, reflect the original consent plans. Whether or not those conditions were validly imposed is a matter that is of no concern to me in these proceedings as it is clear that the original consent plans do not permit the structure which is currently erected - save and except as to the green painted masonry lower portion of that structure. 8 In response to the proposed order, the second applicant submits that it would not be appropriate because the screen is necessary for privacy purposes and acts as a safety barrier to prevent her three young children from climbing the barrier and entering the roof terrace of the neighbouring property to the north. I am not satisfied that there is any validity to the safety argument given the fact that the balustrade to the several storey drop toward the street at the southeastern frontage of the property is a stainless steel railing with stainless steel wires below which is capable of being a ladder for children – placing them at significantly greater risk than does the division. 9 With respect to privacy, there maybe some validity in the retention of all or part of the structure for privacy reasons between the two roof terraces in order to ensure some private utility for each them. 10 However, this is to be balanced against two objections that have some substance that have been raised. One was from a neighbour, Mr P Burgess, who resides in the property to immediately to the south of the site in Short Street. I had the opportunity of viewing the structure subject to the appeal from the front upper balcony of Mr Burgess's property. It is clear from the development application approved plans (which marked a north point) that portion of Mr Burgess' balcony is likely to suffer from overshadowing from the forward element of the dividing structure sometime from late morning onwards – given the orientation of the site. The overshadowing is likely to take place at the winter solstice but be confined to an impact from the front half or third of the structure. 11 The second matter that was from a important objection to impact on the views from properties, to the rear of the site and facing Roundtree Street, which have an outlook into Mort Bay and to the harbour bridge across the Darling Street peninsular. These includes a view across the site. I am satisfied that there would be no significant impact on the view from the upper levels of those properties but from the entry level (that is the Roundtree Street level) there would be some impact (although not an extensive one). This is likely to be confined to an impact caused by the front third or half of the structure on a view of the line of the eastern shore of Mort Bay. 12 The final matter that is put in contention by the council is the impact of the structure when viewed from Short Street. I had the opportunity, during the course of the view, of seeing the observable part of the structure in the streetscape context. Although somewhat intrusive, it is only the front third or half of structure that is really visible by the street. 13 I am satisfied that it would be appropriate to uphold the council's order because the private utility for the applicant of permitting the structure to remain is outweighed by the disadvantages to others (including the public domain) of permitting it to remain. 14 However, as the adverse impact largely relates to the front portion of the structure rather than to that closer to the access stairwell for the terrace, I raised the question of possible compromise with the applicant and with Ms A Sowden, solicitor for the council. 15 Ms Sowden indicated that it is possible that the council would be prepared compromise with either a stepped structure or one which is confined to a structure some distance setback from the Short Street end of the dividing masonry wall 16 As a consequence, I asked Ms Sowden if she would obtain instructions from the council as to undertaking not to enforce the order (if I were to confirm it) for a period of 90 days subject to an undertaking from the second applicant (which has been given) that the second applicant would lodge a new s 96 modification application for a lesser structure within a period 21 days from the date of this decision. Ms Sowden obtained those instructions and gave that undertaking to the Court. 18 If such application is not lodged within a 21 day period the council's undertaking not to enforce the order will disolve and the order would then be able to be enforced. 19 Subject to these undertakings, I therefore dismiss the appeal and confirm the order. Tim Moore 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.