Alford & Young v Bellingen Shire Council

[2008] NSWLEC 1210

Land and Environment Court

of New South Wales

CITATION:	Alford & Young v Bellingen Shire Council [2008] NSWLEC 1210
PARTIES:	APPLICANTS D Alford & M Young RESPONDENT Bellingen Shire Council
FILE NUMBER(S):	10170 of 2008
CORAM:	Moore C
KEY ISSUES:	Development Application :- Balcony Setback from street Privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Bellingen Local Environment Plan 2003
CASES CITED:	Zhang v Canterbury City Council [2001] NSWCA 167 Stockland Development v Manly Council (2004) NSWLEC 472
DATES OF HEARING:	15 May 2008
EX TEMPORE JUDGMENT DATE:	15 May 2008
LEGAL REPRESENTATIVES:	APPLICANTS Ms B Stevens, solicitor Barwick Stevens RESPONDENT Mr J Reilly, solicitor HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

15 May 2008

08/10170 Alford & Young v Bellingen Shire Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: Mr Alford and Ms Young seek to add amenity to their dwelling which is located in Azalea Avenue in the seaside village of Mylestom by adding a covered deck or veranda to their master bedroom which is on the second-storey of their dwelling. The relevant planning controls that I need to consider are contained in Development Control Plan 22, which applies to development in this village.

2 The applicants seek a deck with a roof which extends 2.75 m from the face of their present building with a further 700 mm eave extension towards the street.

3 The process of the hearing has lead to a number of matters being discussed – including the acceptance by the applicants that it would be appropriate to lower the floor plate of any deck to which I might give consent by a further BCA compliant step so that there are two steps down from the master bedroom to the deck from the bedroom’s floor rather than one step down.

4 The applicants have also agreed to lowering the underside of the deck’s roof to a point consistent with it being immediately adjacent to but not obstructing the doors which are to be put in to occupy the space of the present windows to the master bedroom facing north.

5 It is on the assumption that both of those changes are to be incorporated in revised plans that I have approached my consideration of the acceptability or otherwise of the extent of the proposal now sought by the applicants.

6 These considerations arise both as to compliance with the general propositions contained in the DCP 22 concerning front setbacks and the specific matters raised by Ms James, the neighbour immediately to the west.

7 At the outset, I should note that one of the matters raised by Ms James is the fact that, at the present time, there is no collection of stormwater from the gutters of the two-storey portion of the applicants’ property. The applicants have indicated through their solicitor, Ms Stevens, that they are prepared to accept a requirement for draining and collection of that water into a tank. I am satisfied that the installation of a water tank (as part of the approval which I proposed to give) will resolve that issue.

8 However, Ms James also raised additional issues relating to her visual and acoustic privacy and to the impact of light on her living areas (both in her front veranda area and in her living room – which is the principal living space in her property located on the side adjacent to the applicants’ property and immediately behind the front building face of her home).

9 Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167, I am obliged to take provisions of DCP 22 as the focus or starting point for my consideration of the application. However, having done that, I am not obliged to adopt uncritically the provisions of the DCP if I am otherwise satisfied, on a proper assessment pursuant to the requirements s 79C of the Environmental Planning and Assessment Act 1979, that some departure from the DCP would be appropriate in circumstances of the case.

10 In addition, as discussed by McClellan CJ in Stockland Development v Manly Council (2004) NSWLEC 472, I am also to have regard to both the consistency of application of any DCP and public expectations as to compliance with it.

11 In respect to these latter points, I need note two earlier decisions of the Council.

12 First, the Council has considered and determined only two applications for verandas in front of the building line (using at this point in my determination veranda in a non technical or interpretive sense merely as a descriptor for the proposed development) – one of which was for the present site prior to the present application (refused) and the other some streets away (approved). The one which was approved was not consistent with the interpretation of front setback provisions in the DCP advanced by Mr Reilly, solicitor on behalf of the Council. However, the prior application for the present site was refused consistent with what Mr Reilly says is the appropriate interpretation in the DCP. There is, therefore, no pattern of application of the DCP.

13 Although other planning instruments – being State Environmental Policy 71; the North Coast Regional Environmental Plan; and the Bellingen Local Environmental Plan 2003 also apply to the site, I am satisfied that there is nothing of particular import contained in them provided I have regard to the objectives of the 2(b) Village Area Zone contained in the zoning table in cl 11 of the LEP.

14 The relevant objective is to preserve and enhance the local character and identity of villages within the Council's area.

15 I am satisfied that, even if I were to approve the application in its entirety, that would not be inconsistent with that objective although questions of consistency of the DCP specifically do arise.

16 Although I accept that the DCP must be regarded without being interpreted with a fine tooth comb that might otherwise be applied to documents drafted by Parliamentary Counsel, I note that, on page 4 of the DCP, in the glossary separate terms of deck, veranda and balcony are used at differing points in the definition. As a consequence, I think it reasonable to consider that there was an intention that those three terms might mean differing things.

17 I am satisfied that, however, I should not draw any fine distinction between a veranda and a balcony, for example, to conclude that a veranda ought to be a ground level structure because such a conclusion would be inconsistent with the fourth dot point of provision 4.12 of the DCP which clearly applies to veranda’s at upper levels projecting above garage entrances.

18 The matters to which I am taken in the DCP relate to the front setbacks contained in provision 4.7 which requires that front setbacks shall be consistent with the established building line to the locality or streetscape.

19 I note that there is a consistent line of authority that “consistent with” is not the same as “not inconsistent with” and the former is, in my understanding, a marginally more prescriptive requirement. Cl 4.7 provides that front setbacks shall be consistent with the established building line. That leads me to consider what might be the established building line in the vicinity. The established building line is a defined term contained in the DCP and means the most common and consistent setback distance of dwellings along the same side of a particular street measured from the front wall of dwellings to the front boundary of the property – carports, garages and additions located in front of a dwelling not being used to determine the established building line.

20 In the present context I am satisfied that the structures at the front of 11 Azalea Avenue, being the house to the west, are appropriate to be considered as a basis for determining what might what be a building line but that those that are contained in Ms James front are not relevant because there is no wall at the front of her veranda – therefore I should have regard to the front wall of her building structure.

21 In addition to the provisions of the front setback, Ms Stevens takes me to the provisions of 4.12 dealing with garages, carports and sheds – the fourth dot point of which deals with garages underneath the second storey of a two-storey dwelling. In such a case, the garage door maybe aligned with the front door of the building but only where it covered by projecting veranda not less than 1.5 m wide. The consequences of that is, I accept, that the DCP envisages that there may be circumstances where a veranda may project not less than 1.5 m from the wall. The consequence of that and my consideration of the setback provisions is that I am satisfied that a combination of those provisions would make it possible for me to approve a floor plate distance of at least 1.5 m.

22 The question to be determined is whether the setbacks that are proposed in the application are acceptable as a general proposition within what I would describe as the streetscape and its rhythm. There are several matters that arise in that regard.

23 The first, I am satisfied that the lowering of the floor plate and the lowering of the roof reduce significantly the dominance of the structure that would be are constructed had the original application been approved as to its height and the height of its floor plate. Setting aside for the present the question of setback from the street, I am satisfied that the lowering of the roof and the lowering of the floor plate renders acceptable a roofed deck (whether it be described as a balcony or a veranda) – contrary to the position of 11 Azalea (which has a limited eaves overhang only).

24 A roofed area, although having some impact on the very early morning shadowing of Ms James property, will not have any impact within what are the conventionally accepted hours of the day at the winter solstice of 9 am to 3 pm – accepting, as I do, that the shadow diagrams provided by the applicant [which are not questioned by the Council] are accurate. Therefore, there is no solar impact warranting refusal.

25 The consequence of that is that it falls to me to consider what would be the acceptable extent of the floor plate extending towards the street.

26 The applicants say that they wish to be able to have a table and two chairs for themselves and two chairs for others (a total of four chairs) located on the balcony.

27 I am not satisfied that a distance of 2.75 m for that purpose is necessary or desirable. Although I accept that the provisions of the residential flat design code do not apply to the present proposal, they have nonetheless been tendered by the applicants and not objected to by Mr Reilly. They clearly show that a balcony of 2.4 m would provide generous space for a table and four chairs and a balcony of 2 m in width would provide, in my assessment, an acceptable space for such a table and four chairs.

28 I am certainly not provided with any evidence or information that would provide any basis upon which I can conclude that 2.75 m was necessary for that purpose.

29 I am satisfied that it is consistent with the general rhythm of the streetscape, as amended by the proposal being lowered both as to deck height and roof height, that a balcony 2 m wide protruding from the house would be an acceptable structure at those revised heights.

30 At that width, I am satisfied that it is not necessary for the purpose of shading for there to be any eaves beyond that a distance in the ordinary course of events one would expect as the balcony will be used merely by the occupants of the bedroom.

31 Had I been applying the general sorts of provisions that are applied in more settled areas, a balcony that would not permit four chairs would have been appropriate and the traditional width of such Juliette balcony is only 1.2 to 1.5 m.

32 As a consequence, I am satisfied that a balcony of a floor plate width to its outer end of 2 m is appropriate and that the eaves should align with the end of the floor plate.

33 The remaining matter that requires my consideration is the question of what sort of privacy screen and at what length should be erected on Ms James’ side of the property.

34 The applicants have indicated a preparedness to accept a requirement for obscure glazing in preference to the more solid structure because that will provide a degree of additional light access to Ms James’ property.

35 I am satisfied that that would be appropriate and I am also satisfied that, given the difference in heights between the structure that will be located on the applicants’ property (which will now be above but more modestly above Ms James’ property) that it would be appropriate to require that the privacy screen run from the face of the house to the upright of the posts supporting the outer edge of the roof and thus be for the full width of the balcony.

36 Having reached the conclusions, these will require the lodgement of revised plans to reflect the changes to the height and dimensions of the balcony and will require revised conditions of consent to incorporate requirements for the water tank and drainage of the existing roof and the new roof; and it will require a condition that the glazing should be to the satisfaction of the certifying authority at the time of lodgement of construction certificate plans so that glazing is obscured.

Tim Moore

Commissioner of the Court