Gea Gea v Bankstown City Council [2009] NSWLEC 1405

Land and Environment Court of New South Wales

CITATION : Gea Gea v Bankstown City Council [2009] NSWLEC 1405

APPLICANT Dani Gea Gea PARTIES : RESPONDENT Bankstown City Council

FILE NUMBER(S) : 10581 of 2009

CORAM: Tuor C

DEVELOPMENT CONSENT :- extension to existing upper floor balcony. KEY ISSUES: requirements for private open space visual and aural privacy impacts character of the area

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Bankstown Local Environmental Plan 2001 Bankstown Development Control Plan 2005

DATES OF HEARING: 18 November 2009

DATE OF JUDGMENT: 2 December 2009

APPLICANT Mr R O'Gorman Hughes (barrister) SOLICITOR Thurlow Fisher Lawyers & Consultants Pty Ltd LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

2 December 2009

10581 of 2009 Gea Gea v Bankstown City Council

JUDGMENT 1 This is an appeal against the refusal by Bankstown City Council (council) of part of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent (DA/524-2006) which council granted on 1 March 2007 for alterations and additions to an existing dual occupancy development at 119 Hillcrest Avenue, Greenacre (the site), including the construction of a pergola and awning at the rear of the premises. 2 The s 96 application seeks approval for an entry structure in the front setback area, extensions to an existing rear facing first floor balcony and modification to a pergola, which have been constructed without consent. On 7 August 2009, council granted approval to the entry structure and pergola but not the extensions to the balcony. 3 The main issue in dispute between the parties is whether the balcony extension will result in adverse aural and visual privacy impacts and is uncharacteristic of the area. The site and its locality 4 The site is located on the eastern side of Hillcrest Avenue. It is a relatively flat rectangular-shaped allotment, which is developed with a two-storey dual occupancy, with one residence occupying the ground floor and the other occupying the first floor. 5 The first floor of the development has a front and rear balcony, which span the full width of the building. The rear yard contains an in-ground swimming pool in the north-eastern corner and a covered patio area in the south-eastern corner. 6 The site is adjoined to the north and east by single-storey dwellings, to the south by a two-storey dwelling, and to the west by Hillcrest Avenue. The surrounding development consists of a mixture of single and two-storey dwellings. Planning controls 7 The site is zoned 2(a) Residential under Bankstown Local Environmental Plan 2001 (LEP 2001). Dual occupancy development, dwellings, row houses and villas are permissible with consent within the zone. Residential flat buildings are prohibited. 8 Dual occupancy is defined under LEP 2001 as: