Burrows & Faulkner v Lane Cove Council [2010] NSWLEC 1037

Land and Environment Court of New South Wales

CITATION : Burrows & Faulkner v Lane Cove Council [2010] NSWLEC 1037

APPLICANTS Paul Burrows PARTIES : Judy Faulkner

RESPONDENT Lane Cove Council

FILE NUMBER(S) : 10855 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT MODIFICATION :- Deck Privacy

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987

Meriton v Sydney City Council [2004] NSWLEC 313 CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Super Studio v Waverley Council [2004] NSWLEC 91

DATES OF HEARING: 24 February 2010

EX TEMPORE JUDGMENT DATE : 24 February 2010

APPLICANTS Mr M Staunton, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pearson C

24 February 2010

10855 of 2009 Burrows and Faulkner v Lane Cove Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an appeal against the refusal by the Lane Cove Council (the Council) of an application pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent No D32/09 granted by the Council on 27 February 2009 for the demolition of three existing timber decks and the construction of three new decks at the rear of a dwelling at 22 Gore Street Greenwich, Lot 2, DP230777. 2 The dimensions of the new decks for which consent was sought in the development application were respectively ground level (being street level): 4m wide by 11m; lower level 1: 1.8m wide by 6.5m; and lower level 2: varying between 2.2 to 4m wide by 10.8m. The development consent was granted subject to condition 3: 3. The width of the proposed balconies at ground floor level and lower level 2 not exceeding 3m at any point to comply with the 3m maximum width specified in the Code for Dwellings as privacy is considered to be an issue. PLANS BEING ALTERED TO COMPLY PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. 3 The consent was also subject to condition 2: 2. The provision of a 1.8m high solid privacy screen along the north western side of the proposed three balconies. PLANS BEING ALTERED TO COMPLY PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE. 4 On 2 July 2009 the applicants applied for modification of the consent by deletion of condition 3. The Council notified both the original application and the modification application, and in relation to the latter received one submission from the two occupants of 24 Gore Street Greenwich. The Council refused the application on 6 October 2009. 5 The issues between the parties relate to the application of part 3.6 of the Lane Cove Code for Dwelling Houses August 2002, which limits elevated decks to a width of 3m of useable area where privacy is an issue, and also whether the proposed modification would result in adverse impacts on the amenity of the adjoining residents in terms of privacy and is unnecessary, having regard to the size of the approved balconies and conditions of the subject site. The site and its locality 6 The site is irregular in shape. It has an access strip which forms part of a shared right of way from the western end of Gore Street. The land falls steeply to the rear with bushland as part of the Gore Creek reserve on the Lane Cove River. The subject site has a three storey brick and weatherboard dwelling house with a pitched tile roof and an attached carport. The existing balconies at the rear of the property are 1.8m wide. 7 The neighbouring dwelling house to the north at 24 Gore Street is single storey and has a detached outbuilding on the southern side, variously referred to as a playroom and a studio. Planning controls 8 The applicable planning controls are contained in the Lane Cove Local Environmental Plan 1987 (the LEP), under which the subject site is zoned Residential 2(a1). At the hearing I was informed that there was a new local environmental plan recently gazetted which does not apply to this application. 9 The Lane Cove Code for Dwelling Houses August 2002 (the Code) applies. Part 3.6 of the Code is headed Privacy and Overlooking. The objective of this part of the Code is stated to be: Buildings are to be designed and constructed so as the use will not significantly affect the privacy of the occupant of any adjoining site. 10 There are three standards included in part 3.6. The standard relevant to this application is as follows: 3. Elevated decks, terraces or balconies greater than 1 metre above natural ground level are not to exceed a width of 3 metres of useable area. This clause does not apply where privacy is not an issue.