Gillett v Manly Council

[2006] NSWLEC 149

Land and Environment Court

of New South Wales

CITATION:	Gillett v Manly Council [2006] NSWLEC 149
PARTIES:	Applicant: Wesley Gillett Respondent: Manly Council
FILE NUMBER(S):	10044 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- impact on heritage-listed streetscape
DATES OF HEARING:	28/03/2006
EX TEMPORE JUDGMENT DATE:	03/28/2006
LEGAL REPRESENTATIVES:	Applicant: Mr S Kondilios, solicitor of Maddocks Respondent: Mr S Griffith, solicitor of Pikes Pikes & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

28 March 2006

10044 of 2006 Wesley Gillett v Manly Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Manly Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 to delete conditions ANS01 and ANS12 in consent DA 226/05, issued on 8 August 2005 in respect of alterations and additions to 13 Quinton Road, Manly.

2 Condition ANS01 states:

The first storey family room balcony at the northeast corner is to reduced in depth to a maximum of 2m as measured extending north from the northern window of the family room; and shall have a privacy screen of 1.6m height attached. This is required in order to reduce privacy impacts and view loss to the neighbouring properties. Amended plans to this effect are to be submitted prior to issue of a Construction Certificate.

3 Condition ANS12 states:

The original main roof form is to be retained and the proposed southeast-facing balcony is to be deleted.

4 The experts were Mr I Glendinning, a planning consultant and Mr G Brooks, a heritage consultant for the applicant; Mr P Christmas, a council planner and Mr R Moore, a heritage consultant for the council.

5 Quinton Road, between Raglan Street and Augusta Road is a heritage item in the Manly Local Environmental Plan 1988. The subject site is in the heritage section of the street. The building is in the Arts and Crafts style.

The northeast balcony

6 The applicant wants this balcony to be 3m wide, while the condition reduces it to 2m and requires the imposition of a privacy screen. It was common ground that the privacy screen was not needed for the 2m wide balcony, although Mr Christmas thought that it was necessary for the 3m wide balcony. The applicant was willing to provide it in either case, though it preferred not to provide it.

7 The proposed balcony would have an effect on the view corridor enjoyed from the first floor of 46 Birkley Road. It is true that the additional width of 1m (which is the only matter in dispute) would not have a major impact, but it would cause some additional obstruction.

8 The proposed balcony is to the south side of the adjoining building, 15 Quinton Road. Again, the impact arising out of the 1m-reduction in separation distance would not be major; however, it would nevertheless be an impact.

9 In Mr Moore’s opinion, the entire balcony, including the part already allowed, has a negative effect on the streetscape. Consequently an extension would make it worse. Mr Brooks says that the balcony is in line with managing change in heritage buildings and streetscapes. In my opinion, an extension of 1m to the balcony would be undesirable because of the aforementioned negative impacts, each of which is moderate by itself but, when considered together, the impacts become significant.

10 I have considered the applicant’s argument that a 2m wide balcony is not useable. Given the multifold doors (themselves an unsympathetic feature of the alterations, which have, however, been approved), this is incorrect. Furniture can be partly outside and partly inside.

The southeast balcony

11 This balcony would have no impact on neighbours and the debate therefore centred on the impact on the heritage-listed streetscape. According to Mr Moore, this would be negative, while Mr Brooks considers it to be sympathetic change. Mr Brooks brought numerous examples of balconies that break the line of gable roofs in Arts and Crafts buildings. Most of the balconies were smaller in relation to the roof that what is proposed here. Moreover, it is uncertain whether those examples are located in heritage-listed streetscapes.

12 In my opinion, the southeast balcony would have a moderate impact, much less than the balcony with the multifold doors that has been allowed. If the northeast balcony did not exist, on balance the southeast balcony should be approved. However, the approval of the northeast balcony exists and it fills the extent of change that this building and the streetscape are capable of absorbing.

13 On the basis that both parties agree to the deletion of the requirement for a privacy screen, the relevant part of ANS01 is amended accordingly. Otherwise ANS01 and ANS12 are retained.

Orders

1. The appeal is upheld in part.

2. Condition ANS01 of consent DA 226/05 is amended as follows:

The first storey family room balcony at the northeast corner is to be reduced in depth to a maximum of 2 metres, as measured extending from the north window of the family room. Amended plans to this effect are to be submitted before the issue of a Construction Certificate.

3. Condition ANS12 of consent DA 226/05 is retained.

4. Exhibit 1 is retained on the Court’s files.

___________________
Dr John Roseth
Senior Commissioner