Delamont v Hornsby SC

[2005] NSWLEC 384

Land and Environment Court

of New South Wales

CITATION:

Delamont v Hornsby SC [2005] NSWLEC 384

PARTIES:

APPLICANT
Janelle Delamont

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10222 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application :-

Consent orders
Neighour objection
Refusal for renovations and extension to an existing dwelling
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

7 July 2005

EX TEMPORE JUDGMENT DATE:

07/07/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr K. Casey, agent

RESPONDENT
Mr T. Pickup, solicitor
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

7 July 2005

10222 of 2005 Janelle Delamont v Hornsby Shire Council

JUDGMENT

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Shire Council (the council) of Development Application 864/04, for renovations and extensions of a dwelling house at 7 Duntroon Avenue, Epping (the site).

2 The council and the applicant now appear before me proposing consent orders asking that I make orders giving consent for the plans as originally lodged with the council, designed by Mr Casey, and dated February 2004.

3 In essence, this position comes about as a consequence of a recalculation of the Floor Space Ratio (FSR) of the proposal and the discovery of the council, on my understanding, that the application no longer requires an objection to be sustained pursuant to State Environmental Planning Policy No. 1 as the FSR is no longer exceeded.

4 The matter was examined by Ms K Gordon, a court appointed planning expert, who made a number of minor recommendations which have been accepted by the applicant. They were proposed to be incorporated by way of conditions requiring amendments to the plans.

5 I also have in evidence before me, both in the council’s bundle of documents and in response to the notification by the applicant pursuant to para 9 of the Consolidated Practice Direction of the Court relating to consent orders, correspondence from Mr J Lee, who is the owner of the adjacent property to the rear of the site, objecting to the development on the grounds of privacy. Ms Gordon has considered those matters, and has concluded that there ought be no matters of concern.

6 An examination of the plans shows to me that there are two possible matters that relate to Mr Lee’s concerns.

7 The first is the impact on his privacy that he perceives will arise from the construction of a large balcony which is to be accessed from the dining room of the property.

8 I am satisfied, having considered the degree of separation between the outer edge of that balcony and Mr Lee’s property, that the impact on his privacy is acceptable.

9 Although the balcony is somewhat elevated, there is a significant distance that would be acceptable under AMCORD considerations between the outer edge and balustrade of that balcony, and Mr Lee’s boundary and hence his house.

10 The second element is the proposal for the erection of a balcony off the master bedroom to the property.

11 I have been provided with plans of the building as it presently exists which show the existence of a balcony at the present time, which would be, in its width across the face of the bedroom, somewhat narrower (that is the existing balcony is somewhat narrower), but in its extent towards Mr Lee’s property is somewhat larger.

12 The photographs that I have seen of the property show that this balcony is also somewhat elevated.

13 It is well settled that what are described, in shorthand terms, as Juliette balconies from bedrooms are acceptable provided they are not sufficiently large to be used as regularly trafficable spaces or as entertaining areas.

14 I put to Mr Casey, the plan designer and agent on behalf of the applicant, that I was concerned that, without a view of the site, it was difficult for me to approve a balcony of the proposed dimensions of a width towards Mr Lee’s property of 1500 mm, and a length across the face of the room of 4.2 m.

15 The applicant has agreed to re-dimensioning of that balcony so that it is 3.6 m in width across the face of the building and that its internal dimension towards Mr Lee’s property - that is its usable area excluding the balustrade - will be 1200 mm, and that its total dimension, including the balustrade, will be 1300 mm.

16 I am satisfied that, as a consequence of that amendment, it is unnecessary for me to inspect the site and that there will be some modest additional protection to the privacy of Mr Lee’s property arising from that re-dimensioning.

17 As a consequence of that, I indicate that I am prepared to issue consent orders upholding the appeal and granting approval subject to the agreed conditions for the construction of the alterations and additions to the dwelling at 7 Duntroon Avenue, Epping.

18 As a consequence of that, the exhibits, other than Exhibits 3 and A, may be returned.

19 I will issue those orders when I am provided with a copy of the amended plans that will incorporate both the amendments to the bedroom balcony, as agreed to by the applicant in the course of these proceedings, together with the other amendments which have been agreed to as a consequence of Ms Gordon’s report.

20 I therefore give the following directions in order to ensure that the process remains within the control of the Court:

1. The matter is set down for callover before the Registrar on 10 August 2005.
2. The applicant is directed to file and serve a set of revised plans incorporating the amendments discussed in this decision, such plans to be filed and served within fourteen days of today’s date.
3. If the revised plans are filed and served within that time period, I will make orders giving effect to the consent and provide those orders to the parties. I will make those orders in Chambers and vacate the callover before the Registrar on 10 August 2005, thus obviating the necessity for the parties to attend on that date.

Tim Moore
Commissioner of the Court