Leah Gail McKenzie v Manly Council

[2004] NSWLEC 41

Land and Environment Court

of New South Wales

CITATION:

Leah Gail McKenzie v Manly Council [2004] NSWLEC 41

PARTIES:

APPLICANT
Leah Gail McKenzie

RESPONDENT
Manly Council

FILE NUMBER(S):

11261 of 2003

CORAM:

Hussey C

KEY ISSUES:

Development Application :- for an elevated privacy screen

LEGISLATION CITED:

Environment Operations Act 1997
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

30/014/04

DATE OF JUDGMENT:

01/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Bonnell, solicitor
for Bonnell Rountree Solicitors

RESPONDENT
Mr S. N. Griffiths, solicitor and
Ms N. M. Lowe, solicitor
for Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11261 of 2003

Hussey C

30 January 2004

Leah Gail McKenzie
Applicant
v

Manly Council
Respondent

Judgment

1 . The appeal is against council’s refusal of a Development Application for an elevated privacy screen along the common boundary at 99 Stuart Street, Manly with No. 97 Stuart Street.

2 . The applicant requires the screen to give privacy to the spa, which is situated on the northern side of the front terrace. The privacy screen is initially proposed to be vertical timber slats with a maximum height of 2.4m above the terrace level and approximately 3.6m long.

3 . In refusing the application council has identified a number of issues, which can be summarised as unsatisfactory impacts due to view loss from Mr Simmons neighbouring house, (No. 99) and unsatisfactory streetscape impact in the context of the heritage collection of houses in Stuart Street.

4 . Having heard the various objections the applicant has revised the proposal to provide a lower stepped privacy screen, which is identified in exhibit 11. It is to be in three modules each about 600mm x 1.8m. This revision, has been considered by Mr Simmons and Mr Armstrong councils manager of planning.

5 . The resolution of the outstanding issues for the appeal requires some balancing of the competing interest between the private interests of the applicant for privacy and the public interest of loss of views and streetscape impact.

6 . It appears that an appropriate privacy screen can be permitted under the prevailing controls and I note the Development Control Plan calls for privacy screens in cl. 3.10, in certain circumstances. In terms then of the amended proposal, which Mr Armstrong and Mr Simmons have considered, it seems that in respect of the first issue it doesn’t cause unreasonable view loss. There is a marginal loss of foreshore view area, but I consider with the proposed amended screen, No. 97 still retains magnificent harbour views, so I don’t consider the loss of minimal harbour views is sufficient to warrant rejection of the application. Furthermore I do not consider that the view sharing principles are offended in this case, by the minor loss.

7 . The other issue concerns the streetscape impacts. It appears to me that viewing the property from street and hearing the evidence, there’s little concern about the two proposal modules adjoining the house. The main concern is the front module and taking into consideration that it is of a lower height, it is to be coloured so as to match the surrounding buildings and materials, and it won’t be permanently closed, I consider that it’s approval still represents a reasonable balance between the privacy requirements for the spa and streetscape impacts. In my assessment, the 1.8m height covers the entry into the spa but the additional module at the front adds reasonable level of privacy when people use the spa and I do not consider that the degree of visual intrusion in to the heritage streetscape is sufficient to warrant it’s rejection.

8 . I rely on Mr Wheeler, the designing architects evidence that it will maintain the integrity of the house design and it continues the balance with rectangular modules in this attractive design of the house.

9 . The Court orders are:

1. The appeal is upheld.
2. Development Consent is granted to DA253/03 for the erection of a privacy screen along the side of the front terrace of 99 Stuart Street, Manly subject to conditions in Annexure ‘A’.
3. The exhibits, other than exhibits 1 and 11 may be returned.
___________
R Hussey
Commissioner of the Court
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Conditions of development consent

Annexure A

Leah Gail McKenzie -v- Manly Council

That Development Application No. DA 253/03 be approved pursuant to Section 80(1)(a) of the Environmental Planning and Assessment Act, 1979, subject to the following conditions:

1. This approval relates to drawings Nos:

232.01 – 6 May 2003
232.02A – 29 January 2004
232.03A – 30 January 2004 (Attachment AA)
prepared by Environa Studio.

2. Pursuant to Section 97 of the Local Government Act, 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $200.00. The Deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site.

Note : Should Council property adjoining the site be defective e.g., cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site.

3. No obstruction shall be caused to pedestrian use of Council's footpath or vehicular use of any public roadway during construction.

4. Details of the builder's name and licence number contracted to undertake the works shall be provided to Council prior to issue of the Construction Certificate.

5. Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary.

6. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

7. No building materials may be stored on the road reserve without separate approval from Council.

8. All materials on site or being delivered to the site shall generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 shall be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses.

9. A Construction Certificate Application is required to be submitted to and issued by the Principal Certifying Authority prior to any building works being carried out on site.

10. The works require the following inspection/certification during the course of construction:-

Final inspection

The cost of these inspections by Council is $181.00 (being $70.00 per inspection and $113.00 for Final inspection inclusive of GST) . Should you require Council to undertake the inspection/certification, then payment is required prior to the first inspection. Inspection appointments can be made by contacting the Development Assessment on 9976 1500.

At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $80.00.

11. Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, magnesite flooring, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays.

Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.

________________________
R Hussey
Commissioner of the Court
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