Land and Environment Court New South Wales Medium Neutral Citation: Addison v Randwick City Council [2012] NSWLEC 1172 Hearing dates: 7 June 2012 Decision date: 07 June 2012 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: Consent orders - Modification application - Balcony - Privacy Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environmental Plan 1998 Category: Principal judgment Parties: Carlton Addison (Applicant) Randwick City Council (Respondent) Representation: Ms S Hill, Susan Hill & Associates Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10276 of 2012 EX TEMPORE Judgment 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) in relation to a determination made by the respondent Council of an application made under s 96(2) of the Act to modify Development Consent No 119/2011. The matter was originally listed for conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979 (the Court Act). The parties informed the Court that they had reached agreement and were seeking consent orders, and the matter has now proceeded to a hearing to determine whether or not it is lawful and appropriate to grant the orders by consent as sought by the parties. 2The background to the modification application is that the Council determined Development Application No 119/2011 by granting consent on 11 August 2011 for alterations and additions to an existing semi-detached dwelling at 42 Wride Street, Maroubra (the site). Those alterations and additions included a new first floor containing three bedrooms and two bathrooms, a shade structure to the rear of the dwelling up to 500mm from the rear boundary, and the construction of a new set of stairs to the front of the dwelling to access a proposed home office. 3The modifications sought by the applicant were as follows: (a) to reinstate a rear balcony at the first level at the rear of the property on the northern elevation; (b) to provide a pitched, obscured glazed roof to the shade structure at the rear of the dwelling; (c) to clarify window design and placement; (d) to provide a larger skylight to the new upper level bathroom; (e) to provide a new tiled roof awning to the side entry to the dwelling; (f) to amend the height of rear folding doors at the ground level; and (g) to delete the skylight at the first bedroom and replace with a gable end with glass end. 4The Council determined the modification application on 22 November 2011 to permit the modifications as sought with the exception of the first modification relating to the rear balcony. 5The original determination of the Council had required the deletion of the balcony then proposed in the original development application, and its replacement in accordance with condition 2B of the original consent by a north facing window constructed so that the lower panel is fixed to a height of 1.5m above floor level and constructed using translucent obscured frosted or sand blasted glazing. The dimensions of the balcony as originally proposed were that it was to be 2.425m in depth, and included a clear glass balustrade. The proposal for which approval was sought in the modification application has reduced the balcony to a depth of 1.6m, and includes a 1.5m high frosted glass balustrade to the north face of the balcony. The purpose of the modifications is described in a letter dated 9 September 2011 provided with the modification application by the applicant's architect. The amendment to the balcony was stated to be to address the Council's concerns relating to privacy by providing a substantially enclosed private outdoor space. 6The parties have reached agreement as to the modifications that can be approved, and in accordance with the Court's Practice Direction, those persons who objected to the original application when before the Council had been informed of the intention of the Council to agree to consent orders. The Council has provided in its bundle of documents (exhibit 1, tab 7) the written submissions made by those objectors, who are the occupants of 40 Wride Street and 36 The Causeway. Those objections in short related to the bulk of the proposed rear roof; concerns about privacy and overlooking impacts of the balcony; and concerns about precedent, the point being made that there are no other balconies in the area. 7The objectors have been notified of today's proceedings by letter dated 31 May 2012 (exhibit 3), which informs the objectors of the proposed consent orders, the content of the proposed consent orders, and explains the substance of the effect of the deletion of condition 2B of the original consent. I am informed by the Council's representative that the objectors have stated that they did not wish to attend the hearing. 8The evidence before the Court includes the Council's bundle of documents (exhibit 1) which includes the Council assessment reports relating to the original development application and the modification application prepared by Council officers, and the content of the submissions made to the Council. The hearing of the matter commenced on site and there was a view of the subject site. Further evidence has been provided on behalf of the applicant by Mr Tony Moody, an expert planner, and his position paper is in evidence (exhibit C). 9In considering whether it is lawful and appropriate to approve the modifications sought and grant the consent orders as requested by the parties, I note first that I am satisfied as required by s 96(2) of the Act that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. Section 96(3) of the Act requires that the matters specified in s 79C that are relevant to the development must be taken into consideration. Those matters are, first, the provisions of the Randwick Local Environmental Plan 1998 (the LEP), in particular the objectives of the Residential 2A zone in which the site is located. Those objectives are relevantly, (a) to provide a low density residential environment; (b) to maintain the desirable attributes of established residential areas; and (c) to protect the amenity of existing residents. 10The applicable development control plan is the Dwelling Houses and Attached Dual Occupancies Development Control Plan (2000) (the DCP). The relevant provisions of the DCP are first, to note that the plan adopts a performance approach (cl 1.5). The relevant provisions are in part 4.3 Height, Form and Materials, which includes at 4.3.1 the objectives "to ensure the height and scale of development relates to the topography with minimum cut and fill", and "to ensure buildings preserve privacy and natural light access for neighbouring residents and allow sharing of views". 11At part 4.3.3, the Performance Requirements and Design Solutions include P4, "Buildings are designed to preserve privacy and natural light for neighbouring residents". At part 4.5 Visual and Acoustic Privacy, the objectives are "to ensure that new buildings and additions meet occupants' and neighbours' requirements for visual and acoustic privacy". The relevant performance requirement is P1, "Overlooking of internal living areas and private open spaces of residential development is minimised through appropriate building layout, location and design of windows and balconies and where necessary, separation, screening devices and landscaping." 12In considering whether or not the proposal is consistent with the objectives of the LEP and the performance requirements of the DCP, the starting point is an assessment of the locality, which can best be described as residential in nature with a mixture of semi-detached and free standing dwellings, and some multi unit housing developments. The immediate locality to the site is characterised by relatively small rear yards which are in close proximity to each other. 13The assessment of the modification application by the Council was undertaken by a Council officer who formed the opinion that the reduction in size of the balcony, the inclusion of a 1.5m high frosted glass balustrade, and the location of the proposed balcony, which is now adjoined on the western side by the wall of the adjoining development at 40 Wride Street and on the eastern side is contained next to the area of the proposed en suite bathroom on the first floor. The officer concluded that "the proposed balcony as amended will maintain privacy to the adjoining properties and will satisfy the relevant objectives of the DCP in that visual and acoustic privacy into the adjoining property is maintained". The Council officer also noted that it is important that the balcony is off a bedroom and not a living area, and as a result it would not be expected that the use of the balcony would in any event be so intensive that by the very use of the balcony it could cause nuisance to adjoining residents. 14The assessment of the application undertaken by Mr Moody addresses the concerns relating to loss of views, overshadowing, and bulk and scale. Mr Moody notes (exhibit C) that the proposed balcony is well below the roof line of the approved development, and there is no loss of view from any adjoining property or the public domain. Mr Moody agrees with the Council officer that the proposed balcony as amended will maintain privacy to adjoining properties, and Mr Moody also notes that the proposed balcony is off a bedroom and not a living room, and as a consequence for use would be less than might otherwise be the case. Mr Moody also comments on the eastern and western ends of the proposed balcony, which are located such that in his assessment there is further privacy protection provided. 15I accept the evidence of Mr Moody and the assessment undertaken by the Council officer. I am satisfied based on that evidence, that in circumstances where the proposed balcony is off a bedroom, is of small dimensions which limit its use, which includes a 1.5m privacy screen and the enclosing effect to the east and the west, that the proposed balcony will not give rise to adverse impacts in relation to privacy or overlooking in relation to nearby residences. I am satisfied based on the view and the photographs provided by the Council that the proposed balcony is consistent with surrounding development. In particular it was observed on the site view, and noted by the Council officer in his assessment, that there are similar sized balconies in the area, in particular one at a building located at 411 Maroubra Road, which is also a first floor balcony off a bedroom. 16Considering the relevant requirements of s 79C of the Act, I am satisfied that the proposed modification is consistent with the relevant zone objectives under the LEP, and is consistent with the requirements and the objectives of the DCP. I am also satisfied that the views of the objectors have been properly taken into account. I am as a consequence satisfied that it is lawful and appropriate to approve the orders sought by consent of the parties. Orders 17The Court orders by consent: 1.The appeal is upheld. 2.The application pursuant to section 96(2) of the Environmental Planning and Assessment Act 1979 (Modification Application No. DA/119/2011/A) is approved. 3.Development Consent No. DA/119/2011 granted by the Respondent on 9 August 2011 for alterations and additions to the existing semi detached dwelling house including a new first floor (SEPP1 Objection - Floor Space Ratio) in respect of the land known as Lot 2 DP 550083, 42 Wride Street, Maroubra is modified pursuant to section 96(2) of the Environmental Planning and Assessment Act 1979 as follows: (a)Delete Condition 1 and replace it with the following: "1.The development consent must be implemented substantially in accordance with the plans numbered A02, A03, A04, A05 & A06 all Issue A dated 4th May 2011 and received by Council on 4th May 2011 the application form and any supporting information received with the application, as amended by Section 96 plans numbered A01b, A02b, A03b, A04b, A05b, & A06b, all dated September 2011, and received by Council on the 9th September 2011, only in so far as they relate to the modification highlighted on the Section 96 plans and detailed in the Section 96 application, except as may be amended by the following conditions and as may be shown in red on the attached plans:" (b)Delete the following words from Condition 2: "b.The proposed balcony at the rear of the first floor addition is to be deleted. The balcony may be replaced by a north facing window which shall be constructed such that the lower panel is fixed to a height of 1.5m above floor level, and is constructed using translucent, obscured, frosted or sandblasted glazing. The upper panel to the window may be constructed such that it may be opened and may be constructed using clear glazing. This condition is recommended to ensure that the proposed development does not impose any unreasonable impacts on the adjoining dwellings to the north and north-east with regard to visual privacy." (c)Delete the following words from Condition 2(c): "Window no. W8 shall be constructed such that the lower panel is fixed and is constructed using translucent, obscured, frosted or sandblasted glazing." 4.The Exhibits are returned except A and D. Linda Pearson 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. Decision last updated: 27 June 2012