Land and Environment Court New South Wales Medium Neutral Citation: Wilcsek v Woollahra Municipal Council [2013] NSWLEC 1194 Hearing dates: 23 and 26 August 2013 Decision date: 26 August 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is dismissed. (2)The amended order is confirmed (incorporating the conditions in Exhibit 5). (3)The exhibits apart from exhibits 5 and 3 are to be returned upon publication of the judgment in writing. Catchwords: APPEAL: appeal pursuant to s121ZK of the Environmental Planning and Assessment Act 1979 - against compliance with a demolition order issued by the Council requiring the removal of certain unauthorised works to a balcony at the rear of a semi detached dwelling located within a heritage conservation area - privacy and amenity impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Paddington Heritage Conservation Area Development Control Plan 2008 Woollahra Local Environmental Plan 1995 Category: Principal judgment Parties: Ms J Wilcsek (Applicant) Woollahra Municipal Council (Respondent) Representation: Applicant in person Mr K Webber Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10200 of 2013 Ex tempore Judgment 1This is an appeal under s 121ZK of the Environmental Planning and Assessment Act 1979 (the EPA Act). It concerns an order issued by Woollahra Council on 13 February 2013 in respect of unauthorised works to a balcony at the rear of a "federation period" semi detached dwelling at 74 Elizabeth Street, Paddington (the semi). 2The order required the applicant, within 60 days, to restore the first floor level balcony located at the rear of the premises to the same condition which the balcony was before unlawful works were carried out to the balcony and to conform to the dimensions, materials and design guidelines contained in the Woollahra Local Environmental Plan 1995 (WLEP) and the Paddington Heritage Conservation Development Control Plan 2008(DCP). 3At the hearing the terms of the original order were amended to incorporate the conditions detailed in the Council's memorandum dated 23 August 2013 prepared by its town planner, Mr Mario D'Alessio (Exhibit 5). The applicant, Julie Wilcsek, who owns the semi, consented to that amendment. 4The order now requires the following works: "1.Balcony modifications (a) The unlawful balcony extension (balustrade, floorboards, framing, fascia and attached balcony support columns) and floor boards that project beyond the rear alignment of the existing roof support columns and the rear setback alignment of the related balcony located to no 176 Elizabeth street Paddington shall be removed to rectify the unlawful works. (b) The existing balcony rear sloping roof form clad in corrugated profile roof sheeting and attached roof support columns shall be required. (c) The rectified balcony is to be maintained as a cantilevered balcony without the addition of support brackets. Should support be required it shall be by new timber balcony support columns located directly below and matching the detail of existing retained balcony roof support columns. (d) Balcony balustrade material detailing may utilise the removed marine wire balustrade or match the existing rear balcony balustrade detailing to No 76 Elizabeth Street, Paddington and is to accord with Building Code of Australia. 2. Structural Adequacy of Existing Supporting Structures A certificate from a professional engineer (Structural Engineer), certifying the adequacy of the existing supporting structures to support the additional loads imposed by the balcony must be submitted to Council, within 4 weeks. 3. Compliance with Building Code of Australia The balcony must be made to accord with the requirements of the Building Code of Australia ". 5The applicant, who is a barrister with experience as a property lawyer was self-represented at the hearing. Despite being afforded an opportunity to obtain and submit expert town planning or heritage evidence Ms Wilcsek did not call any expert evidence at the hearing. Instead, she relied upon some of the photographs tendered by the Council in Exhibit 10 and made oral and written submissions in support of her application to have the order revoked. Her written submissions include the material in Exhibit B and an email received by the Court after the hearing, but before judgment was delivered, at 8.57am on 26 August 2013. 6The Council was represented by Mr Webber, its solicitor, and relied upon the written and oral evidence of its planning officer Mr Mario D'Alessio. 7Mr D'Alessio's statement of evidence is Exhibit 2 and at Appendix 2 of that document he sets out his curriculum vitae. It records his qualifications and extensive experience in heritage conservation planning within the Local Government area of Woollahra and other councils. I accept Mr D'Alessio's expertise in both town planning and heritage matters for the purposes of these proceedings. 8Because these proceedings commenced without a view of the site, I asked the parties at the outset of the Court hearing whether they wanted me to undertake a view. They told me that they believed that the photographic evidence, some of which had been taken at the earlier s 34 conciliation conference, together with relevant extracts from the Council's planning maps was sufficient to enable me to understand the context of the site and its interrelationship with adjoining properties so as to address the issues between the parties. On that basis I determined that a view was not necessary in this case. Applicant's position 9The applicant concedes that the works were undertaken without requisite development consent under the EPA Act. However, she believes that the works (which increase the width of her balcony by less than half a metre or about three and a half planks of wood), are acceptable on a merit assessment under Council's planning controls because the design integrity of her Federation semi (which is part of a group of six semi-detached dwellings) is not undermined by the unauthorised works. In her opinion the works to her semi, which is located on the edge of the Council's Paddington Heritage Conservation area are not contrary to the intent of Council's controls and, therefore, they should not be required to be removed as the Council's order seeks to do. 10Ms Wilcsek submitted that the Court should consider the practical use of her limited open space and weigh that against the impacts the extension of her balcony causes both to her neighbours' renovated properties and also from the area behind her property, described as the public domain. Furthermore, she submitted that the Court should exercise some discretion and be flexible in its application of the DCP controls in this case. Ms Wilcsek referred the Court to other properties within the locality of her home where she believed the Council had adopted such flexibility in its application of the planning controls. 11Additionally, the applicant submitted that her rear balcony provides her only sunny open space because her backyard has not been renovated like the neighbouring semi at 76 Elizabeth Street whose owner had lodged objection to this application (Exhibit 4). Ms Wilcsek said that she could not easily overlook her neighbour's property from her balcony and in any event she did not intend to use that space for large numbers of people to congregate, generate noise or cause adverse impacts for her neighbours. 12In short her case is that the constructed balcony causes no unacceptable privacy or visual impacts to her neighbours or from the public domain. However, despite maintaining that position and, in an effort to resolve the proceedings, she agreed (if required), either to install planters along the edge of the balcony or construct a different type of rail to obstruct any view toward her neighbour's property from the position on her balcony most likely to afford an opportunity for overlooking that property. The Council's position 13The Council's statement of facts and contentions dated 13 June 2013 sets out the relevant background facts and statutory controls (Exhibit 3). It identifies the WLEP as the primary environmental planning instrument, which applies to this site, particularly the objectives in cll 2.(2)g(ii) and (iii) and cll 12, 18 and 28 and that the site is located within the Paddington Heritage Conservation Area under the DCP therefore; a number of the provisions of the DCP are relevant. 14The particular DCP provisions which are said to be breached are detailed in Parts A and B of (Exhibit 3) and were discussed by Mr D'Alessio in his written and oral evidence. 15Based on Mr D'Alessio's evidence the Council submits that the unauthorised balcony in its constructed form does not achieve Objectives 01, 02, 03 and controls C3 and C6 in cl 4.1.3 Rear elevations, rear additions significant outbuildings and yards because the bulk, scale and set back of the balcony does not retain the existing building alignments, set backs and levels of the adjoining properties. 16Clause 4.1.3 provides: "Objectives 01 To retain the forms and character of traditional rear elevations of significant buildings where they exist in unaltered groups. 02 To ensure that rear alterations and addictions are of sympathetic design and construction. 03 To ensure that the distinctive shared characteristics of groups of significant buildings are retained and enhanced. Controls Rear Additions C3 Alterations and additions to a building which comprises one of a group must be designed with regard to the overall balance of the group in terms of height, alignment, form, scale, breezeway pattern and architectural character and detail... C6 Alterations at the rear of buildings must: be designed to minimised or avoid an adverse impact on neighbouring properties in terms of overlooking, loss of sunlight and ventilation... not extend beyond the predominant rear building setbacks at any level of a group or row of buildings..." 17The Council also submits that the balcony does not achieve the Objectives 02 and 03 and Control 3 of Clause 4.1.5 Site coverage, setbacks and levels. Clause 4.1.5 because the extended balcony does not continue with the immediate established pattern as required by control C3 of the DCP. Clause 4.1.5 provides: "Explanation Paddington is notable for a predominate pattern of repetitive terrace building types on long rectangular blocks running between streets and laneways.... Objectives 02 To retain established building alignments, setbacks and levels. 03 To ensure that new development continues the established alignments and setbacks of the established historic development in the streetscape... Setbacks C3 Siting and setbacks of all structures are to continue the immediate established pattens. 18Additionally, the Council submits that the constructed balcony causes adverse visual and privacy impacts (in breach of C6 of cl 4.1.3.4) to the adjoining properties at 76 and 72 Elizabeth Street because the protruding balcony creates additional opportunities for overlooking and adverse amenity impacts. The Council relies on the matters raised in the letter of objection from the owner of the adjoining semi at 76, Exhibit 4, and the photographs of the site in exhibit 10 - in particular, those dated 27 June 2013 series 5, to demonstrate the potential for overlooking whilst standing on the applicant's balcony. 19Mr D'Alessio gave evidence that he was concerned about the impact of the balcony on the private open space of adjoining properties. He told the Court that the balcony as constructed was contrary to the Objectives 01 and 02 and Controls C6 and C7 in cl 4.1.10 of the DCP. His evidence is that the design of the works is inadequate in terms of the minimising acoustic and visual privacy impacts on neighbouring land. 20The Council also referred the Court to the controls in the DCP, which endeavour to temper adverse visual impacts from the public domain (when the site is viewed from Soudan Lane) and submits that the balcony offends those provisions. It relies on Mr D'Alessio's assessment that the visual intrusion is a concern from the rear of the applicant's property for a length about ten to twenty metres (although he conceded that the visual impact was able to be controlled if the applicant extended her rear fence to match the height of the adjoining fences, this is from the rear). 21Much of the hearing was taken up with a discussion about the adverse heritage impacts of the balcony. Mr D'Alessio was firmly of the view that the balcony does not conform to the original detailed pattern and scale of the rear wing first floor level balconies within the group of semis and as such was unsympathetic and unsatisfactory. On that basis he told me that the balcony extension had an adverse impact on the heritage significance of the properties within the Paddington Heritage Conservation Area under the DCP and was also in breach of the LEP. Consideration 22After a consideration of all of the evidence and mindful of the DCP provisions and the LEP controls, I am of the opinion that the unlawful works do have the potential to cause unacceptable amenity and privacy impacts for the neighbour at 76 Elizabeth Street. And in my assessment of the evidence, the introduction of planter boxes on the extended edge of the balcony is not an acceptable solution to the problem because they would exacerbate the bulk and scale of the elevated balcony that already protrudes outside the established rear alignment of the set of terraces, contrary to the DCP controls in the conservation area. 23The property's location on the outer area of the conservation map does not justify departure from the conservation controls identified by the Council's expert in his statement of evidence. This group of six semi-detached dwellings are at first floor level, of the same scale, bulk and alignment and but for the illegal works the balconies are in a line. Therefore, I have decided the unauthorised works should be modified in accordance the amended order. And I agree with the Council that the reuse of the marine wire is appropriate because it is sympathetic to the neighbours' approved balcony. 24In my assessment the balcony after modification will still provide a useable open space for the occupant of the site and for the reasons stated I make the following orders: (1)The appeal is dismissed. (2)The amended order is confirmed (incorporating the conditions in Exhibit 5). (3)The exhibits, apart from exhibits 5 and 3, are to be returned upon publication of the written judgment. Susan Dixon 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: 15 October 2013