Neville Joel Katz v Waverley Council [2017] NSWLEC 1266

Land and Environment Court New South Wales

Medium Neutral Citation: Neville Joel Katz v Waverley Council [2017] NSWLEC 1266 Hearing dates: 30 January 2017 Date of orders: 31 January 2017 Decision date: 31 January 2017 Jurisdiction: Class 1 Before: Dixon C Decision: 1. The appeal is dismissed. 2. The exhibits are returned. Catchwords: MODIFICATION : - Development consent to extend the depth of a first floor balcony – variation of the established rear building line – undesirable precedent Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012 Waverley Development Control Plan 2012 (Amendment No. 3) Cases Cited: Goldin and Another v Minister for Transport [2002] NSWLEC 75 Category: Principal judgment Parties: Neville Joel Katz (Applicant) Waverley Council (Respondent) Representation: N Katz, self-represented litigant (Applicant) S Patterson , solicitor (Respondent)

Solicitors: S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2016/309380 Publication restriction: No

EX TEMPORE JUDGMENT 1. COMMISSIONER: Mr Katz is the owner of one of a pair of semi-detached dwellings located at 19 Kenneth Street, Tamarama (the Site). The adjoining semi to the east is 17 Kenneth Street. On 24 September 2014, Waverley Council granted Mr Katz a development consent (DA 253/2014) for alterations and additions to his property including; internal reconfiguration of the spaces within the semi, a first floor addition and new decks /balconies to the rear at each level with a storeroom at the ground level. 2. The approved development was subject to condition 2 (b) which reduced the depth of the lower ground floor balcony to 1.8 metre. The condition provides as follows: 2. General modifications … …(b) The existing rear building line of the lower ground floor and ground floor levels shall be retained as existing resulting in the deletion of the existing home office /study (i.e. retain the balcony ) . In this regard, the balcony on the lower ground floor shall remain as existing. 1. On 29 April 2015 the Mr Katz sought approval from the Council to modify the approved development, including the layout and the roof alterations. That modification application was approved on 3 August 2015. 2. On 23 October 2015 a further application pursuant to section 96(2) of the Environmental Planning & Assessment Act 1979 (EP& A Act) was lodged with the Council. It sought the amendment of condition 2(b) to enable the depth of the ground floor balcony to be extended from 1.8m to 3m (an extension of 1.2m). 3. Following assessment, the Council determined to refuse consent to the modification for the following reasons: 1. Pursuant to Section 79(c)(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposed development is not considered to satisfy clauses 5.5 (1) (b)(ix) and (2) (b)(iii) of the WLEP 2012 as the proposed development is not considered to be appropriate for the surrounding area due to the size and bulk of the proposal. 2. Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development is not considered to satisfy the Council's Waverley Development Control Plan 2012 in respect to the following provisions of the DCP as follows: 3. The control concerning Part C1 1.4.1 front and rear building lines (a) and (b) as the proposal seeks to vary the established rear building line to the ground floor. 4. The control concerning Part C1 1.7 Visual and Acoustic Privacy (c) as the proposed balcony extension exceeds the controls for the maximum size of a balcony or deck. 5. The proposed development is considered to result in detrimental impacts on the desired future character of the area and the built environment of the locality, having regard to section 79C (1) (b) of the Environmental Planning and Assessment Act 1979. 6. The proposal is not in the public interest. 1. Mr Katz has appealed against the Council's decision under s 97AA of the EP&A Act. This judgment concerns this appeal and explains why I have decided to refuse consent to his application to modify condition 2(b) and dismiss this appeal.