Owners Strata Plan 76767 v Waverley Council

[2007] NSWLEC 144

Land and Environment Court

of New South Wales

CITATION:

Owners Strata Plan 76767 v Waverley Council [2007] NSWLEC 144

PARTIES:

Applicant
Owners Strata Plan 76767

Respondent
Waverley Council

FILE NUMBER(S):

10750 of 2006 and 10161 of 2007

CORAM:

Hussey C

KEY ISSUES:

Development Application :- s96 modification to balconies, s121ZK order

LEGISLATION CITED:

Environment Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996

DATES OF HEARING:

26 February 2007 and 19 March 2007

EX TEMPORE JUDGMENT DATE:

19 March 2007

LEGAL REPRESENTATIVES:

Applicant
Mr G Rees (Solicitor)
Slater Gordon

Respondent
Mr M Staunton (Solicitor)
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

19 March 2007

10750 of 2006 & Owners Strata Plan 76767 -v- Waverley
10161 of 2007 Council

JUDGMENT

1 The proceedings initially involved an appeal against a s121ZK Order to Comply with modified conditions of consent concerning a new 6 unit residential flat building at 7 Sir Thomas Mitchell Road, Bondi. The parties agreed that the matter be heard by way of a s34 Conference.

2 The Order concerned the provision of planter boxes and privacy screens on the rear balconies and the approved s 96 Modification required:

2. That condition 3 of consent DA 301/03 dated November 25, 2003, be replaced with the following condition:-
Planter boxes, 1000mm wide and 600mm in height, are to be provided on either side of proposed balconies for unit No. 4 & No. 6 and balustrade provided on the inside edge of the planter box in accordance with the provisions of the BCA. Light weight privacy screens with a minimum height of 1.8m from finished balcony level are to be constructed on each side of the balconies (eastern and western elevations), which should also return back (1000mm) to the building façade.

3. CONDITIONS DELETED

That Condition No. 2 of consent DA301/03 dated November 25, 2003 be deleted.

3 In response to this Order, the applicant submitted structural engineering advice to the effect that the nonconforming, cantilevered balconies were unable to carry the additional weight of the designated planters and contents.

4 The council's main concern with these nonconforming properties was loss of privacy to surrounding properties. Consequently at the view, a number of amelioration options were considered and it was generally agreed by the parties that the provision of additional recessed balustrading, with a raked screen (Drawing No 7STMR.SK.001), would reasonably satisfy the privacy issues.

5 Having considered the evidence and undertaken the view, I am satisfied that this revised balustrading restricts overlooking opportunities to a reasonable level and allows the existing balconies to remain, which are otherwise unobjectionable, in this locational context.

6 In order to satisfactorily complete the matter, the applicant was granted leave to have an appeal out of time in respect of Waverley Councils Notice of Determination dated 17 November 2005 to be heard with the original proceedings in Appeal 10750 of 2006.

7 Findings. Accordingly, I am satisfied that the appeal in respect of the s96 modifications to the balcony should be allowed, subject to conditions requiring the construction of light weight privacy screens and new balustrading.

8 Also, that the appeal in respect of the s121ZK Order be allowed in part and is varied as follows.

9 Court orders:

Appeal No 10161 of 2007.

1. The appeal in respect of the property known as 7 Sir Thomas Mitchell Road, Bondi, is upheld.

2. Development application No. DA-301/2003 is modified as set in annexure “A”.

Appeal No 10750 of 2006

1. The appeal pursuant to section 121ZK in respect of the order issued by the respondent on 31 July 2006 in respect of the property known as 7 Sir Thomas Mitchell Road, Bondi, is upheld in part.

2. The order issued by the respondent to the applicant on 31 July 2006 is varied to read as follows:

(a) The wording under the heading “Circumstances” is deleted and replaced with the following wording:

“Development Consent no. DA 301/2003 requires works to be undertaken to the balconies to Units 4 & 6.”

(b) The wording under the heading “The Terms of the Proposed Orders” is deleted and replaced with the following wording:

“Comply with condition 3 of development consent no. 301/2003 dated 17 November 2005 as modified by the Land and Environment Court of NSW on 19 March 2007.”

(c) Numbered paragraph 2 under the heading “Reasons for Council issuing an Order” is deleted.

(d) The wording under the first heading “Period of Compliance” is deleted and replaced with the following wording:

“The period of time allowed to comply with this Order is 90 days from 19 March 2007.”

(e) The Second heading “Period for Compliance” and the words under that heading are deleted.

___________________

R Hussey
Commissioner of the Court
as /ljr