Land and Environment Court New South Wales Medium Neutral Citation: Xiang v Kogarah City Council (No 2) [2014] NSWLEC 1028 Hearing dates: 27 November, 4 December 2013, 20 February 2014 Decision date: 24 February 2014 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld in part Catchwords: APPEAL - Orders - Alterations to existing dwelling - Orders varied Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Xiang v Kogarah City Council [2014] NSWLEC 1004 Category: Principal judgment Parties: Michael Y Xiang (First Applicant) Janie Y Xiang (Second Applicant) Kogarah City Council (Respondent) Representation: Mr A Beatty, Beatty Legal Pty Ltd (Applicants) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10652 of 2013 Judgment 1The applicants appealed against Orders 2 and 15 issued by the respondent Council under s 121B of the Environmental Planning and Assessment Act 1979 on 31 July 2013 (the Order) in relation to building works undertaken at 45 Carlton Crescent Kogarah Bay (the site). 2The Order had six terms, requiring works to be undertaken to the concrete entry patio, a highlight window on the ground floor, the elevated concrete slab at the rear of the property, the concrete block wall on the south-western side boundary with 47 Carlton Crescent, and the water tank storage area underneath the elevated concrete slab at the rear of the property. 3In Xiang v Kogarah City Council [2014] NSWLEC 1004 I gave reasons for concluding that the circumstances exist for the issue of the Order under s 121B of the Act and that the privacy and amenity impacts of the works as built are such that it is appropriate that an Order be made. Each of the terms of the Order required modification in light of those findings and reasons, and I directed the parties to provide an agreed amended Order including specification of the work required and the time for it to be undertaken. That task took longer than anticipated, and the matter was re-listed for mention on 20 February 2014. 4On that occasion the parties provided an amended Order, stating that they had reached agreement on terms 1, 2, 3, 5, and 6. Having considered the agreed amendments to terms 1, 2, 3, 5 and 6, I am satisfied that they are consistent with the earlier findings, and appropriate. 5The Council's proposed term 4 reads: The 1.5m high opaque glass balustrade (referred to in order 3) is to be returned inwards along the south western edge of this concrete slab for a minimum length of 3 metres from the side boundary. 6The applicants seek a variation of term 4, so that it would provide: The balustrade (referred to in Order 3) is to be returned inwards along the south eastern edge of this concrete slab for a minimum length of 3 metres from the side boundary at a height of 1m and is to be fixed with clear glass 7In a letter to the Council's solicitors dated 17 February 2014, the applicants' solicitor states that the provision of an opaque, 1.5m high balustrade for the return would have the effect of "unfairly depriving our clients of a view to Kogarah Bay from their otherwise lawfully constructed rear slab"; that it would make the space, planned as a patio sitting area, difficult to use particularly in summer as the surrounding balustrades would block any breeze from the bay; and that the applicants feel additionally aggrieved as the Council has approved clear glass balustrades at a lower height at the rear of 47 Carlton Crescent which overlook the rear of neighbouring properties further downhill. The applicants' solicitor provided photographs showing the height of the 1.5m balustrade along the south eastern edge of the rear slab. 8The Council neither supports nor opposes the proposed change to term 4, noting that it was the evidence of Mr Nash that the return would make some difference in terms of privacy and amenity, and noting that the Building Code of Australia would require that there be a balustrade at least 1m high. 9Term 4 of the Order as originally issued by the Council required the construction of a landscape bed 1200mm wide and 1000mm height along the south western boundary and returned for a minimum length of 3 metres, with a 500mm privacy screen to be installed on top of the external perimeter including the 3m return. The first issue to be determined when considering terms 3 and 4 of the Order related to whether the construction of the rear slab with the supporting retaining wall at RL 20.00 setback 900mm from the boundary with the slab cantilevered 900mm to the boundary was authorised under development consent DA 51/2010, when regard is had to that consent and the Construction Certificate plans. At [46] in the earlier reasons I concluded that I was not persuaded that the construction of the slab overhang to the boundary was authorised by DA 51/2010. Having reached that conclusion, at [51] I noted that there is a significant impact on privacy for the rear year of No 47 Carlton Crescent. The photographs attached to the letter of 17 February 2014 (exhibit G) confirm that impact. 10At [52] and [53] in Xiang v Kogarah City Council [2014] NSWLEC 1004 I considered the evidence of the expert planners, Mr Nash for the Council and Mr Chambers for the applicants, and concluded: 53. ...I am of the view that in order to address the significant privacy and amenity impacts for No 47, while minimising any increase in visual bulk that the planter box as suggested by the applicants would provide, in the context where there is a degree of ambiguity as to what DA 51/2010 authorised, the preferable approach to requiring the overhang of the slab to be cut back is to require the installation of a balustrade 1500mm high of opaque glass, set back at least 1000mm from the side boundary, with the remaining overhang to be treated so as to be non-trafficable. Term 3 of the Order should be amended to reflect that requirement. Term 4 should be amended to require the continuation of the balustrade for the 3 metre return inwards from the side boundary. 11The photographs in exhibit G support Mr Nash's evidence that a 1.5m balustrade would address overlooking for most people standing, and confirm the need to provide for a 1.5m high, opaque, balustrade along the side boundary, set in by 1m, to prevent direct overlooking down to the rear yard of 47 Carlton Crescent. In considering whether the return should also be 1.5m, or 1m as requested by the applicants, I accept that for a person located in the position from which the photographs were taken, that part of the view across to Kogarah Bay that remains (given the construction of the upper level of the dwelling) would be impacted by a 1.5m high balustrade. In circumstances where the significant privacy impact is addressed by the requirement for a 1.5m high opaque balustrade along the side boundary, setback 1m, and given the proposed use indicated by the applicants being for a "patio sitting area", I am satisfied that remaining privacy impacts arising from the potential for overlooking at the edge of the slab closest to 47 Carlton Crescent, can be accommodated by requiring the return balustrade to be 1m high. Given the proximity of that section of the slab to the boundary and the difference in height, I remain of the view that the balustrade should be opaque rather than clear glass in order to achieve privacy. 12Term 4 should be re-drafted to read: The opaque glass balustrade referred to in Order 3 is to be returned inwards along the south eastern edge of this concrete slab for a minimum length of 3 metres from the side boundary at a minimum height of 1m. 13The parties' representatives discussed the period for compliance with the amended Order, and agreed that a period of 60 days, which is the same period originally fixed by the Council in the Order issued on 31 July 2013, is appropriate. 14The Orders of the Court are: 1. The appeal is upheld in part. 2. The Order Nos 2 and 15 under s 121B of the Environmental Planning and Assessment Act 1979 dated 31 July 2013 issued by Kogarah City Council in relation to 45 Carlton Crescent Kogarah Bay is modified by the deletion of the Terms of Order and Reason for the Order and substitution of the following Terms of Order and Reason for the Order: Terms of Order: 1. The following course of action is to be undertaken in respect to the construction of the unauthorised front entry patio slab built to the common boundary with No. 47 Carlton Crescent: i) The cantilevered concrete slab adjacent to the front entry portico and foyer is to be cut back and removed to the approved setback of 1200mm and garden beds installed in this location to the approved RL's of 13.15 and 12.15m respectively. ii) This will necessitate the retention of existing retaining walls along the boundary and the construction of additional retaining walls along the common boundary to the finished RL of the garden beds to retain the soil to the approved levels. iii) All retaining walls on the common boundary are to be rendered and painted Dulux Weathershield Matt Acrylic finish in Linseed, A191 in a good, clean and workman like manner to the satisfaction of Council. iv) The garden beds are to comprise of native planting that will grow to a height of 1500-1800mm at maturity in order to provide adequate privacy. 2. The sliding glazed panels to the highlight window on the ground floor of the north eastern elevation are to be removed and replaced with one fixed glazed translucent (obscured) panel that is permanently fixed in position and cannot be opened. 3. A 1.5m high opaque glass balustrade is to be installed on top of the constructed 300mm thick concrete slab adjoining the south-western side boundary and located within the rear of No. 45 Carlton Crescent, Kogarah Bay. The balustrade is to be setback a minimum of 1000mm from the side boundary and the concrete slab between the boundary and balustrade shall be treated so as to be non-trafficable. 4. The opaque glass balustrade referred to in Order 3 is to be returned inwards along the south eastern edge of this concrete slab for a minimum length of 3 metres from the side boundary at a minimum height of 1m. 5. The external faces of the constructed concrete block wall located along the south-western side boundary, including the wall built 900mm in from the boundary supporting the concrete slab at No.45 Carlton Crescent, Kogarah Bay, that adjoin No.47 Carlton Crescent are to be rendered and painted Dulux Weathershield Matt Acrylic finish in Linseed, A191 in a good, clean and workman like manner to the satisfaction of Council. 6. The proposed water tank storage area, located under the elevated slab within the rear of the subject site, is to be modified so that it is not used for habitable purposes in the following manner: i) The proposed opening is to be reduced to a maximum width of 1200mm with a maximum height of 2000mm and a reduction of the internal floor to ceiling height to 2000mm. ii) No further opening or penetrations are to be constructed on any of the external walls of the enclosing structure. iii) The water tanks proposed are to have a minimum capacity of 10,000 litres and located towards the southern end of the storage area, in close proximity to the entry door. Reason for the Order: 1. The unauthorised building works involving the front entry patio concrete slab, the installation of windows to the north eastern elevation of the subject dwelling, the concrete slab, the construction of a void under the concrete slab and concrete block side boundary fence constructed up to the south-western side boundary of the subject site has a detrimental impact on the privacy and amenity of the adjoining properties. 3. The period for compliance is 60 days from the date of these Orders. 4. The exhibits are returned except for exhibits 1, 2, 3 and 4. Linda Pearson 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: 24 February 2014