Marika King v Woollahra Council

Land and Environment Court

of New South Wales

CITATION:	Marika King v Woollahra Council [2006] NSWLEC 654
PARTIES:	APPLICANT: Marika King RESPONDENT: Woollahra Council
FILE NUMBER(S):	10624 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Enclosure of balcony to attenuate noise and reduce pollution; urban design; integrity of the existing building design; building articulation and private open space; and negative streetscape impact.
LEGISLATION CITED:	Woollahra Local Environmental Plan 1995, (WLEP) State Environmental Planning Policy No 65 – Design of Residential Flat Buildings, (SEPP65) Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, (SREPSH) Rose Bay Centre Development Control Plan, (RBCDCP) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	12/10/2006
EX TEMPORE JUDGMENT DATE:	10/12/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr M E McMahon, solicitor SOLICITORS: Mr M E McMahon & Associates RESPONDENT: Mr P R Rigg, solicitor SOLICITORS :Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

12 October 2006

10624 of 2006 – Marika King v Woollahra Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Woollahra Council (the council) to refuse a development application to enclose a balcony at Lot 14 in SP 52896, ‘The Mariner’, being Lot No 14 at Nos 809 – 823 New South Head Road, Rose Bay.

2 An on-site hearing was held on 12 October 2006 and I inspected the balcony that is to be enclosed in company with the parties.

3 I am satisfied that acoustic attenuation might be achieved by double or secondary glazing of the windows facing onto the balcony rather than enclosing the balcony. I am satisfied that the public interest is best served by maintaining the architectural integrity of the building and the streetscape by leaving the balcony unenclosed.

‘The Mariner’

4 ‘The Mariner’ is a four-storey mixed-use development with retail on the ground floor and residential units above situated on the corner of Dover and New South Head Roads in the commercial area of Rose Bay. There is already one enclosed balcony at Unit No 7, that was approved by the Court and the applicant seeks to enclose another, at Unit 14.

5 ‘The Mariner’ is within the ‘Core Area’ of the Rose Bay Commercial Centre that is characterised by a mix of residential, commercial and retail buildings of varying height and design.

Relevant planning controls

Woollahra Local Environmental Plan 1995, (WLEP)

6 Under the provisions of the WLEP the land is zoned General Business 3(a) and the proposal is permissible with consent.

7 Clauses of the WLEP of relevance include cll 2(2)(k)(i-iii) - urban design; 11 – floor space ratio; 19 – Harbour Foreshore Scenic Protection Area; and 27 – Development in the vicinity of heritage items.

State Environmental Planning Policy No 65 – Design of Residential Flat Buildings, (SEPP65)

8 Under SEPP65 a ‘residential flat building’ is defined as being a building:

(a) 3 or more storeys (not including levels below ground…