Ziegler and anor v Waverley Council [2013] NSWLEC 1109

Land and Environment Court New South Wales

Medium Neutral Citation: Ziegler and anor v Waverley Council [2013] NSWLEC 1109 Hearing dates: 26 June 2013 Decision date: 27 June 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld Catchwords: MODIFICATION: appeal against a condition of consent; impact on views and the public interest Legislation Cited: Environmental Planning & Assessment Act 1979 Land & Environment Court Act 1979 Waverley Local Environmental Plan 1996 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Miriam & David Ziegler (Applicants) Waverley Council (Respondent) Representation: Applicant: Ms M & Mr D Ziegler (Litigants in person) Respondent: Ms C Morton (Solicitor) Respondent: Sparke Helmore File Number(s): 10203 of 2013

Judgment 1COMMISSIONER: This is an appeal against the imposition of a condition of consent requiring a reduction in length of a proposed balcony at 38 Portland Street Dover Heights (the site). The appeal is made under s 97AA of the Environmental Planning & Assessment Act 1979 (the Act). 2In September 2012, Waverley Council approved a s96 Modification Application to modify Development Consent DA-402/2011 issued in December 2011 to carry out works described as: modification to internal layout, window changes, extensions to front balcony including pergola. 3The modification was approved in accordance with the submitted plans, a BASIX certificate, a Site Waste and Recycling Management Plan and Checklist, and the original conditions of consent, except as modified by Amended Condition 2 - General Modifications. This is the condition in contention; it states: 2. General Modifications To reduce the visual bulk related impact on the northern adjoining property and improve view sightlines towards the southwest, the proposed first floor balcony extension is to be reduced in length from 3860m [sic] to 2360mm so as to provide a 1500mm setback from the northern elevation of the building. 4Originally, the balcony was to be enclosed with horizontal louvres; this was deemed by council to be out of character with the surrounding buildings and the streetscape. The proposed changes to the balcony are the extension to the north of the existing first floor balcony for the full width of the first floor and the erection of glass balustrading. The louvres have been deleted. 5The applicants' position is that the proposed balcony extension does not increase the visual bulk of the site nor does it unreasonably impact on any view from the neighbouring property to the north. The applicants maintain that approval has been given to the pergola, the pergola is not mentioned in the condition in contention, and that the appeal therefore relates only to 1.5m of the proposed balcony. 6The council contends that the concerns of the owner of the neighbouring property to the north and unacceptable impacts on the streetscape should be considered as representing the public interest, an essential consideration under s 79C of the Act. The council accepts that while the pergola is not specifically mentioned, it is logical that the end of the balcony should be the end of the pergola. 7The council considers that the impact on the neighbouring property could be minimised by reducing the length of the proposed balcony by at least 1m, although 1.5m is the preferred reduction, or by introducing a splay at the northern end, consistent with the adjoining property. 8The matter commenced on site as a s 34AA mandatory conciliation under the Land & Environment Court Act 1979, however, as no agreement could be reached, the matter went immediately to a hearing.