Djani v North Sydney Council

[2007] NSWLEC 725

Land and Environment Court

of New South Wales

CITATION:	Djani v North Sydney Council [2007] NSWLEC 725
PARTIES:	APPLICANT Ray Djani RESPONDENT North Sydney Council
FILE NUMBER(S):	10811 of 2007
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification to approval for alterations and additions to dwelling - balcony extension - amenity issues - acoustic and visual privacy
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	24/10/07
EX TEMPORE JUDGMENT DATE:	24 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates RESPONDENT Ms K Gerathy, solicitor SOLICITORS Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 October 2007

10811 of 2007 Ray Djani v North Sydney Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by North Sydney Council (the council) of an application to modify DA 604/04 for alterations and additions to an existing dwelling at 31 Darley Street, Neutral Bay (the site).

2 The proceedings were heard as an On Site Hearing on 24 October 2007 and the judgement reflects the contents of the Statement of Basic Facts and Contentions and the findings given on-site.

Background

3 An application to modify DA 604/04 was approved by the council on 11 December 2006 (DA 604/04/2). Following an inspection of the site regarding an extension to the approved rear first level balcony, a further modification application was submitted to the council (DA 604/04/3) that included the extension of the rear first level balcony and other modifications to the approved plans. The council approved the modification application on 16 July 2007 however Conditions A4 and C13 state that no approval is given to the balcony extension. These conditions are the subject of the appeal.

The development on the site

4 The alterations and additions to the existing dwelling approved by DA 604/04 and DA 604/04/2 have been largely carried out although the dwelling is vacant and construction work is still being undertaken on the dwelling. The rear balcony, as approved, has dimensions of 2.44 m x 7.5 m giving an area of some 18.3 sq m and has been constructed. The proposed balcony extension has dimensions of 1.8 m x 5.2 m giving an area of some 9.36 sq m and a total balcony area of 27.56 sq m. The proposed balcony extension is located on brick piers and has been formed up, including reinforcing mesh but the concrete slab has not been poured.

Relevant planning controls

5 Section 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides requirements for the modification of a development consent. There was no issue raised over compliance with s 96(2).

6 The site is within Residential A 2 zone under North Sydney Local Environmental Plan 2001 (LEP 2001). Clause 2 provides General Aims of the Plan, cl 3 provides Specific Aims of the Plan, cl 14(2) provides that consent must not be granted if the development is inconsistent with a specific aims of the plan, the objectives of the zone or the objectives of controls, cl 16 provides zone objectives and cl 20 provides requirements landscaped area.

7 North Sydney Development Control Plan 2002 (DCP 2002) applies. Section 5.1 provides requirements on site analysis and Section 7.2 provides requirements for environmental criteria including, views (s 7.2 e), acoustic privacy (s 7.2 h) and visual privacy (s 7.2 i).

The issues

8 The following issues were raised in relation to the modification application:

1) the balcony extension further exacerbates the non compliance with the landscape area requirements, and
2) the balcony extension creates amenity impacts for the dwelling at 19 Darley Street owned by Dr Timothy and Dr Alison Gattorna through the loss of views and a reduction in acoustic and visual privacy.
Landscaped area

9 Clause 20(2) of LEP 2001 provides that 50% of the site is to be landscaped area. Prior to the approval of DA 604/04 the existing dwelling had a landscaped area around 31%. The approval of DA 604/04 resulted in an increased landscaped area to around 41% largely through the removal of an existing garage in the rear yard. The extension of the rear first level balcony will result in a reduction in the landscaped area by around 2.3% to 38.7%.

10 In considering the landscaped area objectives in cl 20 (as a State Environmental Planning Policy No 1 objection is not required for an application under s 96), I am satisfied that the difference in landscaped area between DA 604/04 and the extension of the rear first level balcony is not so significant as to be a reason to refuse the application. I am also satisfied that the small reduction in landscaped area is not inconsistent with the objectives in cl 20.

11 Also, and even though the proposal moves further away from the 50% requirement in cl 20, it would be unreasonable not to give some weight to the significant increase in landscaped area with the approval of DA 604/04.

Amenity impacts on 19 Darley Street

12 Section 7.2 e of DCP 2002, in relation to views, requires existing views to be maintained and the outlook from dwellings are not to the compromised. Buildings are to be designed so as to minimise loss of views from surrounding properties and to maintain or create views from other buildings or public places. An outlook onto trees and sky is to provided.

13 Section 7.2 h of DCP 2002, in relation to the acoustic privacy, relevantly requires buildings to designed to reduce noise within and between dwellings.

Section 7.2 i of DCP 2002, in relation to visual privacy, requires windows to be located to avoid direct or close views into the windows, balconies or private open space of adjoining dwellings. Privacy devices can be used to windows where there is a direct outlook to windows of an adjacent dwelling. The width and depth of deck to the first floor of a detached house or duplex should be limited where privacy or loss of views is an issue. The section also provides numerical requirements for habitable buildings separation. In this case, the appropriate separation is 12 m.

14 The dwelling at 19 Darley Street was inspected on the site view and the relationship with the extension of the rear first level balcony viewed from different locations in the dwelling. The approved balcony is located 2 m from the common boundary with 19 Darley Street with a full height privacy screen. The dwelling is located is located 1 m from the common boundary. The proposed 1.795 m extension of the rear first level balcony will continue the 2 m setback but will not provide any privacy screen.

15 With the benefit of the site view, and as preliminary findings on the amenity issues, the parties were advised that I was not satisfied that the proposal was acceptable in the form presented to the Court. The windows in the adjoining dwelling at 19 Darley Street all face the site due to the design of the dwelling. With the balcony extension having a 2 m setback, a privacy screen would be required (consistent with the approved balcony). This would effectively create a loss of views and an unacceptable sense of enclosure for the adjoining dwelling through the extension of the dwelling and the existing landscaping provided along the common boundary, as well as providing the opportunity for overlooking.

16 The opportunity was given to the applicant to address the preliminary findings though an increase in the setback and a reduction in area so that there was a more satisfactory outcome in terms of outlook and amenity for 19 Darley Street.

17 The applicant proposed a setback of 1.8 m (in addition to the 2 m setback to the boundary) for the proposed balcony extension. While I accept that this setback is an improvement on the original proposal, in my view a setback of 2.1 m provides is appropriate. This provides for a reduction in area of 3.8 sq m, a greater separation to the adjoining property and a similar setback for the balcony extension to the opposite side of the dwelling. This setback also achieves a separation of some 11m between the balcony extension and the bedroom at the rear of the adjoining dwelling and while not satisfying the 12 m requirement in s 7.2 i ii of DCP is acceptable.

18 A 4.1 m setback from the boundary will not require the construction of a privacy screen on the balcony extension and with the use of a clear glass balustrade, the views from the adjoining property will be predominantly maintained. Similarly, I am satisfied that the use of the balcony extension is unlikely to create any noticeable additional acoustical privacy impacts. I am also mindful that there are no specific requirements that relate to the size of a balcony or a rear building line.

Orders

19 The Orders of the Court are:

1. The appeal is upheld.
2. The application lodged by the Applicant with the council on 17 May 2007 pursuant to section 96 of the Environmental Planning and Assessment Act 1979 for modification of development consent 604/04 in respect of the property at 31 Darley Street Neutral Bay is approved subject to Conditions in Annexure A.
3. The exhibits are returned.
____________
G T Brown
Commissioner of the Court