Land and Environment Court New South Wales Medium Neutral Citation: Manning Property Development Pty Ltd v Waverley Council [2014] NSWLEC 1235 Hearing dates: 11 November 2014 Decision date: 11 November 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld see paragraph [19] Catchwords: CONSENT ORDERS: appeal against a condition of consent; extension of balcony; privacy and amenity Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Manning Property Development Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Vasili Conomos (Applicant) Christopher Drury (Respondent) Conomos Legal (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 10604 of 2014 Judgment 1COMMISSIONER: In 2013 the Court approved development application DA 152/203 for the demolition of existing dwellings and the construction of a residential flat building comprising 16 units and basement parking for 14 vehicles at 403-405 Old South Head Road, North Bondi (the site). 2In February 2014 the applicant lodged modification application, DA 152/2013/B, under s 96AA of the Environmental Planning and Assessment Act 1979 (the Act). The modification was notified and several submissions raising concerns about parking, increased floor space ratio and privacy were received. 3In July 2014, Waverley Council's Development Assessment Panel approved the modification application. In granting consent, council imposed an additional condition, Condition 2B. This states: 2B The proposed extension of the terrace to Unit 11 at the uppermost floor of the building is not approved. In this regard, the size of the terrace is to remain as per the previously approved plans of DA-152/2013/A. 4In August 2014 the applicant appealed to the Court under s 97(2) of the Act for deletion of this condition of consent. 5The existing approved terrace is 5.34 m2 with the dimensions 3.61m x 1.48m; the proposal seeks to increase the size of the terrace to 19.56m2 with the dimensions of 5.19m x 4.65m. 6The alterations are sought on the basis that a larger terrace will provide greater amenity to future residents, especially given its north-easterly aspect. 7The applicant contends that the terrace is sufficiently setback and separated from surrounding neighbours to avoid any unreasonable visual or acoustic privacy impacts. The applicant maintains that as the terrace remains recessed away from the northern and eastern facades, there will be no unreasonable or adverse streetscape impacts. In addition, the applicant submits that the proposed increase is consistent with the relevant objectives and controls for private open space, including balconies, in Waverley Development Control Plan (WDCP). 8The site is located on the corner of Old South Head Road and Roe Street, North Bondi. It is zoned R3 Medium Density Residential under Waverley Local Environmental Plan 2012 (WLEP). 9The site fronts Old South Head Road. Roe Street to the east is zoned R2 - Low Density Residential and comprises mostly one and two storey free-standing and semi-detached dwellings. 10After further discussions, the parties have reached an agreement and propose consent orders. The parties agree to modifying Condition 2B to permit the extension of the terrace off unit 11 to the size sought by the applicant but with requirements for a privacy screen on the eastern side and a planter box on the northern side. The condition as modified seeks to address concerns about privacy. 11In accordance with the Court's practice direction, all objectors were notified of the consent orders hearing. 12The hearing commenced on site. An owner of a residential dwelling opposite and to the north of the site in Roe Street made oral submissions in addition to his written objections. 13The principal relevant objections relate to concerns about potential noise from people gathered on the terrace, this terrace being one of four located on the north-eastern corner of the development, as well as the potential for overlooking and therefore privacy concerns. 14Having heard from the parties, the objector and having regard to the requirements of s 79C(1) of the Act, I am satisfied that the orders sought by the parties can be made. 15I agree with the applicant that the size of the terrace is now compliant with the controls in WDCP. Relevantly, amongst other things, cl. 2.14.2 - Balconies and Decks, WDCP Part C2 requires private balconies to have a minimum area of 10m2 and a minimum depth of 2.5m. In addition, balconies are to achieve maximum solar access and ensure privacy for occupants and neighbours. 16I note that the terrace is off a bedroom and not off a living room, therefore the potential for many people gathering on the terrace is less likely. The provision of a privacy screen on the eastern side of the balcony will limit the potential for overlooking into the adjoining residential property to the east. The 900mm wide planter box along the northern edge will reduce the dimensions of the terrace by 4.67m2 and will prevent people from directly overlooking from, or gathering along, that edge. 17During the on-site hearing, it was agreed that an additional element requiring planting of the planter box with a perennial species which attains a mature height of at least one metre would further address concerns about privacy. 18Condition 2B is modified in the following terms: 2B The proposed extension to the terrace to Unit 11, which is located at attic level and accessed from bedroom 2 of that Unit, is to incorporate the following changes: (a)A lightweight timber privacy screen of 1.75m in height is to be erected on the eastern elevation of the proposed terrace, (b)A permanent built-in planter box with dimensions of 5,190mm in length by 900mm in width and 400mm in height is to be erected along the northern most edge of the proposed terrace. (c)A perennial species of screen planting, capable of reaching a mature growth height of at least 1m is to be planted and maintained in the planter box to be erected on the northern most edge of the proposed terrace. 19Therefore, by consent the Orders of the Court are: (1)The appeal in respect of the property known as 403-405 Old South Head Road, North Bondi is upheld. (2)Development consent is granted to the modification of Conditions 2B to the development consent as modified Council reference DA-152/2013/A, by approving the modifications as set out in Annexure "A" and in paragraph [18] of this judgment. (3)As a consequence of order (2), development consent DA-152/2013/A is now subject to the consolidated conditions of consent set out in Annexure "B". _____________________ Judy Fakes Commissioner of the Court Annexure A Annexure B 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: 11 November 2014