Hawkin v Woollahra Municipal Council

[2007] NSWLEC 326

Land and Environment Court

of New South Wales

CITATION:

Hawken v Woollahra Municipal Council [2007] NSWLEC 326
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Matthew Gilbert Hawken

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10174 of 2007

CORAM:

Hussey C

KEY ISSUES:

Section 96 Application :- conditions, restricting balcony size, visual/aural impacts on neighbouring properties

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan

CASES CITED:

Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

DATES OF HEARING:

23/05/2007

EX TEMPORE JUDGMENT DATE:

23 May 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Goldsmith, agent

RESPONDENT
Mr J. Merlino, solicitor
of Home Wilkinson Lowry, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

Date: 23 May 2007

10174 of 2007 Matthew Gilbert Hawken v Woollahra Municipal Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal was lodged against conditions imposed by Council on a s 96 modification application for an existing 2/4 storey residential flat building, containing 5 units, located at 26 Latimer Road, Bellevue Hill. The conditions form part of the development consent granted for alterations and additions to the RFB, garage/storey structure and landscaping works. These alterations include the provision of rear balconies.

2 The full details of the proposal, the site and the planning controls are contained in the statement of basic facts on which I rely.

3 This subject site is zoned Residential 2(a) under the Woollahra Local Environmental Plan and the development is permissible with consent.

4 The original conditional development consent granted to DA771 2001/5 in June 2006 was for alterations and additions to this existing residential flat building, which has the benefit of ‘existing use rights’.

5 The main issues concern the alterations involving the construction of rear balconies, in terms of the visual and acoustic impacts on neighbouring properties, excessive bulk and scale and appropriateness of the design. Objections were lodged by a number of neighbours in respect of these issues.

6 The conditions that were sought to be modified related to:

• Condition 5; requiring the provision of a privacy screen to the northern side of the lower ground 1 level balcony;
• Condition 32; requiring the provision of fixed louvres to rear balconies; and
• Condition 33; requiring a reduction in the dimensions of the rear balconies to a width of 3 m and depth of 1.5 m.

7 The s 96 modification application, in terms of the acoustic impacts has been assessed by Acoustic Logic Consultancy. They have recommended that with the provision of side screens 1.7 m high (in a material of a predetermined noise attenuation specification), together with the front of the balcony screens of 1.3 m height, then reasonable levels of sound attenuation for the residential flats and neighbouring properties will be achieved.

8 Following the site inspection this morning, there has been further discussion of the matters raised by the objectors and now the Applicant offers additional amendments that are significant in further reducing the overlooking aspects. This includes the extension of the translucent side screens on the northern side balconies of the 2 upper level balconies by 300 mm, to restrict overlooking to Ms Hagon’s property to a reasonable level.

9 The amendments also include these 1.3 m translucent screens on the southern side to be 1m above the finished floor level, allowing the top 300mm section to be clear glass. The balconies are also to incorporate 500mm high planters to restrict overlooking.

10 I am satisfied that these amendments result in a reasonable balance between the amenity of these relatively small units and the privacy and amenity of the adjoining properties.

11 In coming to this conclusion, I take into account the overlooking opportunities in an oblique direction and privacy impact on No 24 Latimer Road will be addressed to a reasonable level by the screen extensions.

12 With regard to the O’Connors property in 131 O’Sullivan Road, there is a separation distance at ground level of about 25 m and there is intervening landscaping, which restricts overlooking to a reasonable degree in my opinion. I consider that this separation distance is the critical factor to ameliorate privacy and aural intrusions, but with the inclusion of the revised privacy/acoustic screens on the end of the balconies, that should be satisfactory and the landscape performs a complimentary role.

13 In terms of the acoustic treatment, the acoustic consultant has concluded that the designated specification will ameliorate noise from general usage of these balconies to a reasonable level.

14 With regard to Condition 33, I note that in the Council report (at Tab 10), the standards refer to outdoor floor spaces where the allowances are for a person standing to occupy 1.2 sq m of floor space, while a person sitting occupies 1.5 sq m of floor space. Applying these standards to the suggested size restrictions for the balconies to have maximum width of 1.5 m, this means that if the balconies are allowed to be extended to the proposed 2.3 m and making allowance of a 300 mm reduction for the width of the landscaping planter box, then the proposed balcony is effectively 0.5 m wider (i.e. 2 m wide). This calculates to be about 1.75 sq m of additional balcony space, which would allow 1 extra person to effectively use the balcony.

15 Taking into account the circumstances, such as site topography and primary view attractions away from the neighbouring properties and locational context, I assume that the residents of these units, which are in relatively close proximity will have a good neighbour approach and I consider the increased balcony width to 2.3 m (i.e. an effective increase of 500 mm over the 1.5 m allowed by Council) is reasonable in these circumstances. I also think that the 2.3 m offers better utility for placement of tables and chairs and if they are placed on the balconies, people will be inclined to sit, and lessen any potential over-use of the balcony area.

16 Accordingly, I am satisfied that the application relates to the approved development, the objectors concerns have been addressed and the amendments merit consent, subject to revised conditions.

1 The appeal is allowed.

2 The s96 modifications for alterations to the residential flat building at 26 Latimer Street, Bellevue Hill for enlarged balconies, privacy screens and planting are approved subject to the conditions in Annexure A and B.

3 The exhibits may be returned except for 2, B and D.

_________________________

R Hussey
Commissioner of the Court

Dlc/ljr

08/06/2007 - legal representatives recorded wrong and typographical error in name of the Applicant. - Paragraph(s) coversheet and page 1 of judgment