Land and Environment Court of New South Wales CITATION : Amate v Manly Council [2007] NSWLEC 585 APPLICANT Patrick and Gemma Amate PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10618 of 2007 CORAM: Tuor C KEY ISSUES: Section 96 Application :- delete condition requiring pergola to be setback from boundary privacy, visual bulk and overshadowing impacts on adjoining property LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 23 August 2007 EX TEMPORE JUDGMENT DATE : 23 August 2007 APPLICANT Mr S Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 23 August 2007 10618 of 2007 Patrick and Gemma Amate v Manly Council JUDGMENT 1 This is an appeal against a condition of consent (Condition 42) imposed on a s 96 application by Manly Council. The original development approval (1230/98) was for two storey house with swimming pool at 44 Ellery Parade, Seaforth (the site). The s 96 application seeks approval for a pergola (Vergola) over a terrace area which has already been constructed. 2 The site, its context, the history of the application and the planning controls are set out in the Statement of Basic Facts. 3 Condition 42 requires the pergola to be set back approximately 2.4 metres to be in line with the setback of the patio adjoining the house. The original development approval for the house included stairs adjoining the patio and a retaining wall with an outdoor barbeque terrace. The pergola is over this outdoor terrace. 4 The purpose of condition 42 was to remove the use of the terrace away from 46 Ellery Parade to reduce impacts of privacy. The owner of 46 Ellery Parade, Mr and Mrs Riley, had objected to the proposed pergola on the basis of impacts of privacy, visual bulk and overshadowing. Mr D Liddy, architect, spoke on their behalf at the hearing as they were away. 5 In relation to privacy, both oral and visual. I consider that the pergola will have no impact on oral privacy as the terrace already extends to 900 mm from the boundary and council has issued a construction certificate and an and occupation certificate for the steps and terrace. The oral privacy impact of the terrace it would be same regardless of the pergola. 6 In relation to visual privacy, the application includes a proposed 1.7 metre privacy screen which will mitigate any privacy impacts to an acceptable level. While this screen may add to the bulk of the pergola, I consider this impact to be minimal when viewed from the adjoining property. Particularly as there is already a lattice screen along this boundary and the privacy screen proposed would be generally within the sightlines of the screen. A condition has been included (new condition 43) to require a timber screen with maximum 25mm gaps between the horizontal slats. There is also planting proposed along the boundary, which would hide the privacy screen. A condition has been included (new condition 42) that requires the planting be maintained at a height of two metres. 7 In relation to the visual bulk of the pergola, it complies with council's controls for setback and height along the boundary. Its visual bulk is no different to what is anticipated by the planning controls. 8 In relation to overshadowing, there would be a minor increase in overshadowing of the window to the living room of 46 Ellery Parade, however, this would be in the upper part of the living room window between the hours of 9am and 10am. I consider the extent of overshadowing increase to be acceptable. 9 For these reasons the proposal is consistent with the planning controls and is acceptable. Orders 10 The Orders of the Court are therefore: 1 The appeal is upheld. 2 The section 96 application lodged on or about 3 August 2006 with respect to development application 1230/98 relating to a vergola at 44 Ellery Parade, Seaforth is approved subject to the following modifications to the conditions of consent: a Condition 42 is deleted; b A new condition 42 is added as follows: The screen planting on the western side of the vergola (between the north and south columns of the vergola) shall be restricted to a height of 2 metres above the level of the paved terrace area and shall be maintained at a height of 2 metres above the level of the paved terrace area. c A new condition 43 is added as follows: A timber privacy screen with horizontal slats with gaps between the slats of not greater than 25 millimetres shall be erected to a height of 1.7 metres above the paved terrace area at the western end of the vergola between the north and south columns of the vergola. 3. The exhibits shall be returned except exhibit no. 3. ___________________ Annelise Tuor Commissioner of the Court ljr 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.