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. The evidence 9The experts agree that there is extensive mutual overlooking of yards, pools and decks, including overlooking from balconies to balconies in the locality. They also agree that there is currently direct window to window overlooking between the houses at No. 12 and No. 14 William Street. This fact is evident from the site view. 10The experts agreed that if the proposed deck was reduced in size by deleting the western portion so that its outer face on that side of the building aligned with the existing mullion between the sliding door and western wall of the dining room, a distance, according to Mr Nash's evidence of 1.65 m or 2.65 m from the western property boundary, that would provide an appropriate level of amenity to the adjoining property. However, Mr Nash, whilst saying this setback was the critical factor in addressing the contentions of the council, also required the provision of a 1 m high, toughened, obscure glass balustrade to the western side of the deck in the amended location. The purpose of that balustrade is to protect the adjacent property to the west from down-viewing. The remainder of the balustrading is proposed to be stainless steel cables. 11Mr Threlfo says that this is not necessary as the existing screen planting along boundaries is sufficient, when combined with the greater setback off the boundary to provide an acceptable level of privacy having regard to the location of buildings and the fact that the council had issued consent to provide for the construction of a bathroom area in the location presently utilised as a balcony at No 14. He also says that to utilise different balustrading would be a poor aesthetic outcome. 12The experts agree that if the window treatment was modified to have a fixed obscure panel to 1200 mm above ground level and louvres above, the window treatment would be acceptable. They also agree that, because of the location of the existing window in relation to the side wall of No 10, no alteration to that window is required. Conclusion and findings 13As a result of agreements between the parties, the only remaining contention is whether it is necessary to provide the obscure glass balustrade to the western face of the deck. 14Having regard to the evidence provided, the site view, the fact that the owners of No 14 have consent to carryout works to the upper level balcony that will alter the use of that area to bathrooms, the increased boundary setback, the nature of the locality with extensive, mutual overviewing of adjoining properties so as to optimise the extensive harbour views and the existing screen planting, I am satisfied that there is no need to provide the translucent screen to the western face of the deck. 15I concur with the planning experts that the amended window treatment to Bedroom 1 is also appropriate and better addresses concerns regarding overlooking whilst providing for natural ventilation of the room. 16In view of these findings, I made the following Orders: (1)The appeal is upheld in part. (2)Development consent D/2012/133 is modified by the deletion of condition 2 and its replacement with the following condition: 2. Amended plans are to be submitted incorporating the following design amendments:- (a)The proposed lower ground floor deck is to be modified by the reduction in its length by approximately 1.6metres from its western end so as to align with the door mullion; (b)The balustrade to the deck shall be stainless steel cabling in accordance with the details shown on the foreshore elevation plan, drawing 3/6; (c)The proposed louvred window to Bedroom 1 on the ground floor of the western façade is to be modified to have a fixed obscure panel to 1200mm and openable clear louvres above. (3)The exhibits, other than exhibits A, B and C may be returned. _________________ Sue Morris 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 August 2012