Rosen v Waverley Council

[2008] NSWLEC 1163

Land and Environment Court

of New South Wales

CITATION:

Rosen and Anor v Waverley Council [2008] NSWLEC 1163

PARTIES:

APPLICANT
Michael Rosen and Noelleen Rosen

RESPONDENT
Waverley Council

FILE NUMBER(S):

11136 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Section 121B Order :- demolition of a partial enclosure of a balcony, views, appearance in streetscape and from the beach front.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 71- Coastal Protection
Waverley Local Environmental Plan 1993
Waverley Development Control Plan 2006

DATES OF HEARING:

16/04/2008

EX TEMPORE JUDGMENT DATE:

16 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Hill, solicitor
of Susan Hill & Associates Lawyers

RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

16 April 2008

11136 of 2007 Michael Rosen and Noelleen Rosen v Waverley Council

JUDGMENT

1 This is Appeal No. 11136 of 2007 between Rosen, Michael and Noelleen v Waverley Council in regard to section 121B notice issued for demolition of a partial enclosure of a balcony in Unit No. 29, No.s 2-4 Notts Avenue, Bondi Beach.

2 The notice requires removal of all works associated with enclosing the subject balcony and reinstate the balcony external wall to the condition it was before the work were carried out.

3 In terms of the statutory context State Environmental Planning Policy No. 71 - Coastal Protection applies as does Waverley Local Environmental Plan 1993 and the Residential Development Control Plan 2006. Consideration for the matter comes under those statutes and the Environmental Planning and Assessment Act 1979.

4 The site is a 3-storey building containing 30 apartments above a basement carpark with direct access to Notts Avenue. The Avenue is in the nature of a terrace along the cliff face from Campbell Parade in a south easterly direction and runs behind the back of the Icebergs building.

5 The subject building is elevated high above the beach at its southern end. Behind it is another apartment building higher up on the topography but very close to the subject building. To the east there are more apartments above the terrace. Below the terrace is the Icebergs building and the ocean baths. The property is about on the alignment of high water mark on the beach such that its major aspect is across the bay to North Bondi.

6 The land is zoned Residential 2(c)(ii) under Waverley Local Environmental Plan 1996 and the subject land is within the beach front scenic protection area.

7 Attending for the Respondent was Mr Patterson, solicitor and Mr Faruqi manager of planning at the Council. Attending for the Applicant was Ms Hill, solicitor, Mr Rosen for the applicant and Mr Moody, a town planner.

8 In regard to the issues the council said that Issue 1 was visual impact from adjoining properties and the public domain including Bondi Beach. The council quoted clauses 3(7), (d) and (f) and clause 30 in regard to ensuring compatibility with surrounding development, improving amenity of the residential areas and the aesthetic appearance of the development.

9 The Council said the east facing balcony on Unit 29 has been partially enclosed without prior development consent of the council in a case where development consent is required. The parties agree that the enclosure is permissible with consent. The council said there are no other balconies on this section of the building with balcony enclosures. The parties agree that the council has approved many balcony full enclosures at the rear of the building and there are some clear glass weather protection enclosures on some of the front balconies approved by council. However, the council says that this balcony enclosure varies the style and design of the subject building such as to make it incompatible as an addition to the building.

10 Whilst an earlier development control plan that has now been repealed discouraged the enclosure of balconies, the currently applicable Development Control Plan 2006 amendment No. 2 actually has provisions that provide for enclosure under certain circumstances. The council evidence said that the balcony enclosure significantly compromises the aesthetic appearance of streetscape elements of the building and is in direct contradiction to the plan aims. The balcony enclosure is said to be an ad-hock development that is in stark contrast to the building. The council evidence also notes that Unit 30 directly above the subject proposal has had refusal of a similar enclosure to the subject of this appeal. The council feared that any approval for upholding of this appeal could lead to a precedent effect in the building and other enclosures may be applied for.

11 In regard to Issue 2: Amenity Impacts on Adjoining Properties and the Public Domain it was noted that the body corporate of the strata plan had indicated it had no objection to the enclosure remaining. Nevertheless once again the council was concerned about the visual impacts previously mentioned and the precedent effect.

12 In turning to the Applicant’s evidence I was taken to the currently applicable Development Control Plan which provides in Section 5.10.3 for balcony additions where it provides the balcony addition should occur within the building envelope. They should be designed to relate to the character of the existing building and where the balcony addition forms the principal private open space for a dwelling a balcony must comply with Section 5.3 Private Open Space Controls.

13 The parties agreed that this particular enclosure is within the building envelope and therefore the disputed provision is the compatibilities with the appearance of the building. In Section 5.3.3 on balconies it requires that:

• upper level apartments must have access to one primary balcony and this would be the balcony of the subject apartment.
• It also requires that balconies have minimum dimensions of 10 square metres in area and minimum depth of 2.5 metres.
• Also they should be oriented to maximise solar access.
• The balcony should oriented towards the street and common courtyards rather than towards adjacent buildings and
• sunscreens, pergolas and shutters can be used to increase amenity and privacy for the occupants and the neighbours.
• The balustrades should be designed to allow views and causal surveillance of the street

14 The applicants position is that the enclosure complies with all of these requirements.

15 In looking at the merit matters Mr Moody said that:

• It is permissible development under the current zoning and Development Control Plan.
• It has been constructed of materials consistent with the other balcony enclosures on the building approved by council.
• Whilst it is visible from the public domain and parts of Bondi Beach and the ocean they are quite some distance away and far below.
• The balcony enclosure is significantly setback from the street being on a side elevation of the building. It is perhaps 20 metres back from the front alignment.
• The size of the balcony enclosure is very small. It is 2.6 square metres is on a 1 metre wide by 2 metre long section of the large balcony only.
• It does not increase any overshadowing.
• It does not increase acoustic impact on adjoining properties.
• It is unlikely to increase any overlooking because overlooking was already present through the original windows set 1 metre in from the side of the balcony.
• There was no loss of views for any other person as a result of the balcony enclosure.

16 Mr Moody took a different aesthetic opinion to Mr Faruqi and considered that the visual quality of the enclosure is very compatible with the existing development and would not have any adverse impact of the South Pacific ocean and Bondi Beach.

17 In coming to a conclusion to this matter I had regard to the fact that the area of balcony remaining is some 20 square metres or double the minimum area required by the council control. That remaining portion is approximately 4 metres by 4 metres in area and provides quite an adequate private open space for apartment No. 29.

18 Enclosure as I have mentioned before is of a wing of the balcony which projects along the side of the living room and encloses an area of approximately 2 metres by 1 metre. It is entirely within the envelope of the building being set in from the edges of the balcony slab both at the floor level and the ceiling level. In my opinion the materials used are similar to the window framing materials elsewhere in the building and achieve a level of consistency that is acceptable. The articulation on that particular side elevation of the building is due to the size of these cantilever private open space balconies at each floor level. As I have mentioned before they are 4 metres by 4 metres approximately standing out from the side of the building and creating deep recesses visually in that elevation. The small enclosure of part of the balcony at this floor level emphasises the articulation.

19 In regard to apartment 30 above, the applicant took me to the council file on that matter, which indicated that there were objections to it due to the view loss from persons nearby. Being on the top floor, if an area the same as Unit 29 were to be enclosed it would stand out against the skyline at the roof of the building. At street level one is so far lower down that the building is in high contrast against the skyline. Any enclosure would change the envelope of the building and is obviously quite a different proposition with different impacts to the subject of this appeal.

20 Taking these matters into account I have formed the opinion that:

1. The appeal is upheld.

2. The s 121B Orders issued by Waverley Council on 17 October 2007 for Unit 29, No.s 2-4 Notts Avenue, Bondi Beach is hereby revoked..

3. The exhibits are returned to the parties except Exhibits 2.

___________________

K G Hoffman
Commissioner of the Court
ljr