Threlfo v Leichhardt Council [2012] NSWLEC 1236

Land and Environment Court New South Wales

Medium Neutral Citation: Threlfo v Leichhardt Council [2012] NSWLEC 1236 Hearing dates: 23 August 2012 Decision date: 23 August 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Appeal against conditions, privacy, overlooking. Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Bruce Threlfo (Applicant) Leichhardt Council (Respondent) Representation: Mr G Christmas (Applicant) Ms R McCulloch (Respondent) Apex Law (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10704 of 2012

Judgment 1Leichhardt Council issued conditional consent to Development Application D/2012/133 on 8 May 2012 authorising alterations and additions to the existing dwelling at No. 12 William Street, Balmain East. The application had sought consent for the construction of a deck at the rear of the dwelling on its lower ground floor and the alteration to the windows on the side walls of the main, upper floor bedroom. In granting consent to the application, the council imposed a condition (condition 2) that required the deletion of the deck and changes to the proposed window treatment. 2Mr Threlfo is appealing the condition and is seeking its deletion to allow the construction of the deck and the modification of existing windows in the side walls of the upper level main bedroom as proposed in the original application.. 3Condition 2 of the consent reads as follows: Amended plans are to be submitted incorporating the following amendments: a) The deletion of the lower ground floor deck b) The louvered windows adjoining Bedroom No 1 are to be permanently fixed, closed and made from obscured glazing to a minimum height of 1600mm (from the finished floor level) of both windows. 4The hearing commenced on site as a s 34AA conciliation conference. Objections were heard from both adjoining neighbours and a view of the proposal was undertaken from within those properties in the company of the owners and the parties. Those objections were in relation to privacy, overlooking and noise associated with the use of the deck and, in the case of the property to the west of the site, also included concerns in relation to overlooking, back into their bedroom windows. 5A Joint Planning Report had been prepared by Mr Nash for the council and Mr Threlfo. 6As a result of the joint conferencing and discussion on site during the conciliation conference, the applicant agreed to reduce the size of the deck by increasing its setback off the western property boundary. An amended window treatment had also been proposed that would provide for increased infilling of the bedroom window on the western elevation and the reduction in size of the proposed louvre window. 7The council proposed amended conditions to reflect the agreed position however one issue remained in dispute. That is, whether there is a need to provide a translucent balustrade to the western end of the proposed deck. 8As no agreement could be reached in relation to the amended conditions, the conciliation conference was terminated and the matter proceeded to an on-site hearing in accordance with the provisions of s 34AA(2)(b)(i) of the Land and Environment Court Act 1979.