Kalisperis & ors v Canterbury City Council [2013] NSWLEC 1130

Land and Environment Court New South Wales

Medium Neutral Citation: Kalisperis & ors v Canterbury City Council [2013] NSWLEC 1130 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld subject to conditions Catchwords: Building certificate: non-compliant verandah; setback; visual impact Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Leo Kalisperis (First Applicant) Lisa Kalisperis (Second Applicant) Dionysia Kalisperis (Third Applicant) Canterbury City Council (Respondent) Representation: Applicant: Mr Leo Kalisperis (Litigant in person) Respondent: Mr Gary Green (Solicitor) Respondent: Pikes & Verekers Lawyers File Number(s): 10211 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants are appealing Canterbury City Council's decision to refuse an application for a Building Certificate for an unauthorised extension of the front porch/verandah on Lot 24 Sec 3 DP 3849, known as 9 Hopetoun Street, Hurlstone Park (the site). 2The appeal is made under s 149F of the Environmental Planning and Assessment Act 1979 (the Act).

Relevant background and issues 3In 2011 the applicants extended the front porch of their dwelling; in part to create a storage space for bikes and other items. The size of the extension appears to have been based on the size of a similar structure on the adjoining property at 11 Hopetoun Street. The applicants were of the belief that council approved the as-built verandah at No. 11. 4The porch as constructed is setback 1.8 m from the street frontage. Its dimensions are 2.45 m x 3.45 m. The western edge (closest to the street) is approximately 1.44 m above ground level. The structure is white painted rendered brick with a tiled floor and metal balustrades. A 1.6 m wide staircase adjoins the porch to the north. 5As the porch did not comply with council's controls, in November 2011 the council issued a Notice of Intention to issue an order pursuant to s 121B of the Act. 6In order to regularise the porch extension, the applicants applied for a Building Certificate in January 2012. 7Council refused this application in May 2012 for the following reasons: * The as-built porch/verandah extends more than 1 metre from the predominant front setback and does not comply with Part 5.5 DCP No. 49 - Single Dwelling Code * No balustrades - therefore non-compliance with the BCA * Lack of information despite three written requests from council 8A compliant balustrade has since been installed around the perimeter of the porch. 9The remaining issue to be determined is whether the front porch is of an inappropriate size and has an unacceptable impact on the streetscape.