Land and Environment Court of New South Wales CITATION : Steinberg v Mosman Municipal Council [2008] NSWLEC 63 APPLICANT Steinberg PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 11171 of 2007 CORAM: Bly C KEY ISSUES: Modification Application :- balcony, view loss, privacy. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 11/02/2008 EX TEMPORE JUDGMENT DATE : 11 February 2008 APPLICANT Mr G. McKee, solicitor of McKees LEGAL REPRESENTATIVES: RESPONDENT Miss J Walsh, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 11 February 2008 11171 of 2007 Steinberg v Mosman Municipal Council JUDGMENT Introduction 1 On 22 May 1996 the Mosman Council approved Development Application Number 5.1996.46 for alterations and additions to the rear of the existing dwelling house at 22 Cobbittee Street, Mosman. Condition 9 of that consent requires the proposed first floor balcony of the dwelling to be reduced in size. 2 This modification application now seeks the removal of condition 9 to enable the now constructed balcony, which is 8.4 m wide by 4.6 m deep to be extended in such a way as to facilitate the provision of an alternative access from the existing kitchen onto the extended balcony. More particularly the extension to the balcony, which is surrounded by a glass balustrade, is to provide an additional area 2.9 m square with access from the kitchen via a pair of glass doors. The existing door from the kitchen onto the balcony is to be deleted and replaced with a window/servery. In response to the setback requirements in the Residential Development Control Plan 1999. The applicant has now agreed to increase the setback of the balcony extension from the southern boundary to 1.5 m. 3 The rectangular shaped site is situated on the western side of Cobbittee Street between the military reserve of HMAS Penguin and Dayrell Avenue. It falls to the north (rear) at an average gradient of 25%. Relevant to its relationship with 24 Cobbittee Street there is a stone retaining wall on the boundary that, towards the north-western corner of the site is about 2 m high. 4 The site is developed with a part two and part three storey detached dwelling house. Surrounding development mainly consists of two and three storey detached dwelling houses. 5 The proposed development is permissible with development consent in the applicable residential zone under Mosman Local Environmental Plan 1998. The Mosman Residential Development Control Plan 1999 is also applicable. 6 The council refused the application on 19 July 2007 for reasons essentially involving: unsatisfactory amenity impacts on the adjoining property at 20 Cobbittee Street; and inadequate setback. Those reasons for refusal essentially became the matters in contention. 7 The matter was dealt with as an on-site hearing and as it proceeded I heard from Mr. W. Long the applicant's consultant town planner, and Ms S Winnacott a council town planner who prepared a joint town planning report. 8 I also heard from Mr. W. Holmes who gave evidence on behalf of his elderly mother (who resides at 20 Cobbittee Street) who had a number of objections in relation the proposal that flow from a history of concerns in relation to the development of this over a number of years. More particularly, in relation to the proposed extension to the balcony, those objections involve loss of views towards Hunters Bay, Middle Harbour and Balmoral. It was also explained that because the sunroom from which these views are obtained also overlooks the applicant's balcony and its proposed extension and given the proximity of the extended balcony to the sunroom it was explained that the additional activity that would take place within a distance of possibly less than 2 m from the sunroom where she presently enjoys a very pleasant amenity. 9 These concerns are essentially the same as those raised by Ms Winnacott who explained that the proposed extension to the balcony would potentially be large enough for it to be utilised by the provision of a table and chairs or alternatively for the congregation of people in addition to its main function of providing access between the kitchen and the principal area of the balcony. Whilst Mr. Long accepted that these things were possible he did not believe that these activities would be such as to cause any unreasonable impact on the neighbour to the north. 10 During the hearing extensive discussions took place between myself Ms Winnacott, Mr. Long and Mr. Holmes exploring alternative balcony and privacy screens designs that might resolve the outstanding concerns. As a result an alternative privacy screen was considered and agreed to by the applicant. That screen is to extend across half of the width of the extended balcony and will achieve a number of objectives. It would provide considerable privacy for the existing deck and the living room for the applicant and this would also be of benefit for the sunroom at 20 Cobbittee Street (if I understand Mr. Holmes correctly his mother was concerned that by being able to look onto the deck and into the adjoining living room she was affecting their privacy and was uncomfortable about this). Conversely of course such a screen would provide improved privacy for the sunroom. 11 This screening arrangement does however have a disadvantage because it would, to a degree, restrict views of vegetation across the applicant's property. I do not see this as being of determinative significance because it comprises a view across 24 Cobbittee Street and does not interfere with the substantial views that are otherwise available generally in a northerly and north westerly direction. Another benefit that this screen would provide is to significantly limit the extent to which people would be able to be seen moving from the kitchen to the existing deck although this would not be entirely prevented. 12 Ms Winnacott accepted that this screen would be fairly effective, but was still concerned that this area of the deck was too large and would continue to facilitate its use for (in addition to circulation) the congregation of people and that this would occur in too close a proximity to 20 Cobbittee Street. Mr. Long disagreed explaining that the use of the modified deck as now proposed would be predominantly towards its midst and its northern end where the views can be best taken advantage of. In this context Ms Winnacott provided a diagram showing a reduction in the width of the balcony down to 1.2 m, being less than half of the proposed width. 13 I suggested that perhaps this balcony extension area should be reduced in width to 1.9 m but Mr. Long explained that architecturally a continuing line of balustrade would be a better outcome than any stepping-in. Whilst I do not agree with him that this would be an inappropriate architectural solution I have nevertheless decided that the alignment of the balustrade along the extension consistent with that of the existing balcony can be maintained. I have reached this conclusion because I think that the benefits resulting from the proposed modified screen will sufficiently overcome any adverse impacts that might result from the intensive use of the extended part of the balcony. I have also have taken into account that the use of this part of the balcony in a manner that might adversely affect the neighbour's amenity is unlikely to occur on a unacceptably frequent basis. 14 Taking into account the now proposed screen arrangement I do not accept that the activities on the extended balcony would be such as to adversely affect 20 Cobbittee Street such that it needs to be reduced in size any more than has occurred as a consequence of providing a 1.5 m setback from the site boundary to meet the requirement of the DCP. 15 In the circumstances I have decided that the appeal should be upheld and the development consent amended as now sought by the applicant. ___________________ T A Bly 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.