Biancardi v North Sydney Council

[2008] NSWLEC 1396

Land and Environment Court

of New South Wales

CITATION:

Biancardi v North Sydney Council [2008] NSWLEC 1396

PARTIES:

APPLICANT
Marc Biancardi

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10738 of 2008

CORAM:

Hussey C

KEY ISSUES:

Section 96 Modification :- External balconies, building revision controls, solar impacts and privacy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001

CASES CITED:

Padfurn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING:

30/09/2008 and 2/10/2008

 
DATE OF JUDGMENT: 

10 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor
of Pikes Lawyers

RESPONDENT
Mr R. O'Gorman Hughes, barrister
Instructed by Ms L. Finn, solicitor
of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 October 2008

10738 of 2008 Marc Biancardi v North Sydney Council

JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a s96 application to modify the size of the external balconies on an apartment building at 13 Waiwera Street, McMahons Point.

2 The existing 3- storey building was constructed in the 1940’s and contains 6 apartments. It has been altered a number of times over the years and modifications were approved by council on 22 May 2008, which included external balconies in accordance with the following table.

Approved	Proposed	Increase
Ground floor terrace	23.37 m2	28.88m2	5.51m2
First floor balcony	9m2	24.05m2	15.05m2
Second floor balcony	9m2	24.05 m2	15.05m2
Attic balcony	10.79m2	20.13m2	9.34m2

3 However, the applicant now wants to modify the configuration and size of these balconies, particularly the 3m x 3m balconies at level 1 and 2, to improve the amenity of the units. The modifications are for:

• the ground floor terrace to be approximately 3.95m x 6.24m,
• the first floor balcony to be approximately 3.5m x 6.42m,
• the second floor balcony to be approximately 3.3m x 6.42m,
• the attic balcony to be approximately 4m x 4m.
  

4 The issues identified for the appeal can be summarised as follows:

• Adverse solar, noise and loss of outlook impacts on the neighbouring properties.
• Necessity and reasonableness of the modifications.
• Change in material circumstances.

• Public interest.

  Planning controls

5 North Sydney LEP 2001; under which the site is zoned Residential B and apartment buildings revisions are permissible development. Clause 26 (1) contains the building revision objectives, relevantly including that development:

(a) is carried out substantially within the fabric of the building, and
(b) substantially retains the existing external walls and roof of the building in its existing dimensions and locations, and
(c) minimises the extension of buildings to accommodate apartment development, and in particular, minimises any increase in the height or gross floor area of the building, and…

6 The associated clause 26 (2) controls provide that development must not:

( a) cause any material loss of views from other properties or public places, or
(b) cause any material overshadowing of other properties or public places, or
(c) cause any material loss of privacy to other properties, or …

7 Clauses 16, 17, 18 and 20 deal respectively with the residential zone objectives, building heights, building height plane (BHP) and landscape area requirements.

8 Clause 70 deals with development in the vicinity of heritage items.

9 North Sydney DCP 2002. Part A, Section 7 deals with residential development and also relevant is Part B – DCP Character Statements – McMahons Point North Conservation Area.

10 The environmental criteria are contained in section 7.2, including the following solar access provisions.

Solar access
f . All dwellings have access to sunlight and daylight. Minimal overshadowing of windows to internal living areas and private open space of adjoining dwellings. Existing sunlight and daylight to adjoining dwellings is maintained.
i. Design and site development so as to allow solar access to any solar panels and principal private open space areas of the subject property and adjoining properties, for a minimum of three hours between the hours of 9.00am and 3.00pm during winter solstice (21st June).
ii. Design and site development so as not to reduce any existing solar access to adjoining properties if that solar access is below three hours between the hours of 9.00am and 3.00pm during the winter solstice (21st June)…

The evidence

11 Detailed evidence was presented by:

• Mr G Mossemenear, Council’s executive planner
• Mr G Atkins, Councils acoustic consultant.
• Ms A McCabe, Applicants consultant planner.
• Dr R Tonin, Applicants acoustic consultant.

12 A number of objections were lodged and oral evidence was presented by:

• Mr and Mrs R Vagg, neighbours from 9-11 Waiwera Street.
• Ms C Wood, and neighbours from 15 Waiwera Street.
• Mr C Bedingfield.

13 During the appeal and following the view, discussions between the parties lead to an agreement that the modified ground floor terrace and attic balcony were acceptable.

14 Submissions were made on council’s behalf that some other amendments to the level 1 and 2 balconies could be acceptable to facilitate better utility for placement of furniture, allow convenient people movements and improve the outlook from the units. The submission was that both these balconies could be extended from the existing face of the building to allow an area of approximately 3m x 5m, with a further 0.5m articulation feature projection.

15 The applicant responded that the larger balconies are still required to provide an adequate level of amenity. The desired balcony sizes, as shown in Ex D are:

• Level 1; approximately 3m x 6.24m, with 0.5m articulation feature and starting 1m from the existing external wall,
• Level 2; approximately 3m x 6.42m, with 0.5m articulation feature and starting at the face of the existing building.
  

16 Mr and Mrs Vagg maintained their objection to these amendments because they consider there was still unreasonable shadowing to the north facing windows in their property, particularly the study/family room.

17 Ms Wood and Mr Bedingfield are also dissatisfied because the extended balconies are likely to result in a loss of outlook from their property, loss of privacy due to overlooking opportunities from the balconies and possible increased noise disamenity.

18 There was a joint conference by the respective acoustic consultants (Mr G Atkins – council’s consultant and Dr R Tonin – applicant’s consultant). They agreed that the provision of specified acoustic screens on the sides of the balconies would achieve council’s noise amenity objectives. The applicant accepted these specifications. Accordingly, I rely on these expert opinions that any noise disamenity can be controlled to a reasonable level by the provision of acoustic side screens.

19 The planners jointly reviewed the revised proposal and advised that:

• The revised level 1 balcony is generally within the BHP except for a portion of the privacy screen (400mm on the southern side). It is generally acceptable subject to fixed privacy screens to 1600mm high and a depth of 2m and acoustic screens.
• The level 2 balcony is in breach of the BHP by 1.9m from the southern side. The only breach of the BHP on the northern side is the level 2 privacy screen. However this balcony is acceptable subject to the provision of fixed privacy screens to 1600mm in height and glass acoustic screen for a depth of 1200mm from the building face on the north and south sides.
• Retractable awnings are permitted on Level 1 and 2 balconies, in lieu of the original pergola roofing structures.
  

20 In response to Mr and Mrs Vagg’s concerns about continuing overshadowing of the lower level study, further modelling was undertaken to assess the impacts. Despite these windows being on the northern wall, nevertheless the assessment confirmed that solar access is restricted partially because it is a side wall, with minimal setback to the subject building.

Conclusions

21 Having considered the evidence, the submissions and undertaken a view, I consider the most critical issue remaining in this matter concerns the solar impacts on the lower level windows at No 9 – 11. At present the study window receives about 74 minutes at the winter solstice. It appears that the applicant’s proposal, in respect of the protrusion of balcony 1, would further reduce this solar access. However detailed shadow diagrams relative to the amendments were not provided to the Court.

22 Notwithstanding this, it seems to me that while the development controls allow revisions and alterations to existing apartment buildings, it is on the general basis that they are carried out substantially within the fabric of the building and minimise increases in gross floor area. In this case, the level 2 balcony has been designed in a way to project the widened balcony 3m (plus 0.5m articulation) from the existing face of the building and its impacts are acceptable, according to the planners assessment, on which I rely.

23 However the problem of exacerbation of the shadowing problem on No 9 -11 occurs due to the protrusion of the level 1 balcony, which is some 4m from the face of the existing building. This design then allows the living room to be extended by approximately 1 metre. In resolving the competing interests, I consider due regard should be given to the LEP objectives and controls. Accordingly, the building revisions should be carried out substantially within the fabric of the building, so as not to cause material impacts on other properties.

24 In my assessment, a reasonable application of these controls would be to adopt the existing building face as the extent of living areas and appropriate balconies could extend a reasonable distance beyond this face. The proposed design does not comply with this application because it proposes an extension of the living room by a further 1m and this consequently contributes to the adverse impacts on the neighbouring property.

25 I am satisfied then that the general configuration of the level 2 balcony represents an appropriate design response to the development controls in the subject context. Therefore, I consider it reasonable that any consent to modifications should require a reduction in the level 1 balcony design and width projection to that shown for level 2.

26 It also seems reasonable in the circumstances that the overall length of these balconies be restricted. As the terrace doors measure approximately 5.4m, I consider the overall balcony length should be restricted to 6m, to incorporate the side privacy/acoustic screens. In my opinion these design modifications should result in a reasonable balance between the relative amenity of the adjoining properties as required by the LEP controls.

27 Apart from the solar impacts, I consider these modified balconies (generally 6m x 3m – with articulation feature) and side screening should result in a reasonable level of privacy for the residents of No 15. This is a very attractive locality with access to iconic views and it is apparent that many residents will seek to enjoy them from balconies or windows. Accordingly a degree of overlooking is likely to occur in this mixed density area.

28 However the side screens are to incorporate fixed, angled slats that preclude direct overlooking to No 15. Taking into consideration the setbacks and separation between the two buildings, I am satisfied there will be no material loss of privacy or primary views for No. 15 or to other properties and any overlooking impacts will be consistent with the existing level of amenity in this neighbourhood.

29 In making these assessments, I have carefully considered the applicant’s submissions that the impacted windows on No 9 – 11 are side windows with minimal setback and are restricted by the east-west orientation of the allotment. Also, that the balcony projections are within the notional rear building line and that the subject windows are usually covered and that any shadowing impacts are consistent with that allowed by council’s 3m x 3m balconies.

30 But it seems to me that a degree of balancing is required and that the aforementioned modifications (i.e. balcony 1 to be consistent with balcony 2) reasonably satisfy the provisions of cl 26 of the LEP, particularly that any building revisions be carried out within the fabric of the building.

31 I note that reference was also made to the planning principles in Padfurn v North Sydney Council [2005] NSWLEC 444 where the Senior Commissioner said:

Planning principle: criteria for assessing impact on neighbouring properties
26. The following questions are relevant to the assessment of impacts on neighbouring properties:
• How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
• How necessary and/or reasonable is the proposal causing the impact?
• How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?
• Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
• Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?
  

32 In my assessment, the aforementioned balcony dimensions are consistent with application of these principles. In particular, I do not consider it necessary for the level 1 balcony to be extended in order to allow a reasonable area of private outdoor space. I have also taken into account in the overall balancing exercise that the other larger ground level terrace and attic terrace also considerably improve the amenity of the subject property.

33 In summary then, I am satisfied that this s 96 application relates to the same development, it has been notified and the objectors concerns addressed and on merit the Court makes the following orders.

Court Orders


1 The appeal is upheld.

2 The s 96 modifications to Development Consent No 518/07 concerning the provision of balconies for the property at 13 Waiwera Street, McMahons Point is approved subject to the conditions in Annexure A.

3 The exhibits may be returned except 7, 8, 9, C and D.

___________________

R Hussey
Commissioner of the Court
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