Schiano v Randwick City Council

[2005] NSWLEC 81

Land and Environment Court

of New South Wales

CITATION:

Schiano v Randwick City Council [2005] NSWLEC 81

PARTIES:

APPLICANT
Ralph and Angela Schiano

RESPONDENT
Randwick City Council

FILE NUMBER(S):

11490 of 2004

CORAM:

Nott C

KEY ISSUES:

Development Application :- First-floor addition to a house - size of proposed balcony - privacy of adjoining neighbours

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 97

DATES OF HEARING:

01/03/2005

EX TEMPORE JUDGMENT DATE:

03/01/2005

LEGAL REPRESENTATIVES:

APPLICANTS
Mr & Mrs Schiano - in person

RESPONDENT
Mr M Pearce, solicitor
SOLICITORS
Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

1 March 2005

11490 of 2004: Ralph and Angela Schiano v Randwick City Council

JUDGMENT

1 This is an appeal under s 97 of Environmental Planning and AssessmentAct 1979 in respect of certain alterations to a dwelling house at 19 Balfour Road, Kensington. The main issue relates to a proposed first-floor balcony at the rear of the dwelling.

2 The parties agreed that the Court should make a binding determination under s 34 of the Land and Environment Court Act 1979. I met with the parties and witnesses at the site and have viewed the applicants’ dwelling house as well as the neighbours’ property at No. 17 Balfour Road owned by Mr and Mrs Hatsatouris. I heard evidence from the council from Mr I Burke, co-ordinator fast track, and from Mr Hatsatouris. The applicants represented themselves and gave evidence, and I heard brief evidence from Mr P Banfield who prepared the development application plans.

3 The subject site is zoned 2A under the Randwick Local Environmental Plan 1998. There are a number of development control plans that were referred to during the hearing, perhaps the most important being Development Control Plan—Dwelling Houses and Attached Dual Occupancies. In respect this DCP, I refer in particular to Pt 4.5 dealing with visual and acoustic privacy.

4 The council granted consent for the applicants’ proposed balcony together with other alterations and additions to the dwelling house but imposed certain conditions that were objected to by the applicants. The council’s consent is dated 29 July 2004. In respect of the proposed balcony, condition 6 states:

The size of the proposed rear first-floor balcony is to be reduced in depth from 2 m to 1 m to maintain reasonable levels of privacy to the adjoining properties. Details of compliance are to be provided in the construction certificate plans.

5 Originally, neighbours on both sides of the subject site objected. However, after the proposal was explained to the neighbours on the northern side, they withdrew their objection. Mr & Mrs Hatsatouris live on the southern side and were particularly concerned about overlooking from the balcony into their rear yard and towards three bedrooms that face towards the common boundary with the subject land. These bedrooms are in an extension at the rear of the original dwelling house on that property. They were also concerned about persons gathering on the proposed balcony and causing noise.

6 The proposed balcony has access from a bedroom but it also has access from a sitting room at the upper level. The main family room of the applicants’ home is at the ground-floor level. At the upper level, apart from the sitting room, there are three bedrooms proposed and a shower room. The proposed balcony (as shown on the development plans) was intended to extend out by 2 m from the rear wall of the existing house. The length of the balcony shown on the plans is 4 m. There is a setback of the sides of the balcony from each side boundary by a reasonable distance, which will assist in reducing the impact on the privacy of the adjoining neighbours. The southern side of the balcony will be approximately 4.5 m from the common boundary of the Hatsatouris property.

7 It seems to me that the council’s condition would not necessarily improve the privacy for the adjoining neighbours to the south, because the smaller projection of the privacy screen on a truncated balcony (that is, on a balcony projecting 1 m from the rear wall) would allow viewing from other parts of the balcony towards what would probably be the more important private area of the adjoining property immediately adjoining the rear wall of the original building (or of the extension of it) and would allow viewing towards a BBQ area and an area where there is seating. It is true that there would be less opportunity for persons to gather on a balcony, but if a party was occurring in the sitting room (which on the face of it would not necessarily be a regular occurrence because the sitting room is surrounded by bedrooms), but anyway if there was a party, there would still be noise from the sitting room through the doors that would presumably be open.

8 Having viewed the proposed balcony and noted its height by reference to a pole that had been erected, it seemed to me that the applicants could have what they originally proposed, that is, a balcony extending out 2 m, provided that the privacy screen on the southern side of the balcony was cantilevered out by 450 mm beyond the 2 m extension of the balcony. Having a privacy screen then extending out 2.45 m from the upper proposed wall would reduce the overlooking possibilities to the adjoining property. At the same time, reasonable amenity could be provided for the occupants of the subject property if they wished to have a small table and chair and to sit on the balcony. There would be no cross-viewing to the occupants of the subject land from the adjoining property and likewise unless someone came towards the balcony edge, there would be a reasonable protection of privacy for most of the adjoining property. Insofar as there could still be overlooking of the adjoining property, the overlooking in opinion will be less now with the privacy screen which will be required by the Court than would have been the case if the council’s condition had been imposed. I appreciate that the adjoining neighbours have other concerns but they have been looked at and a two-storey extension at the rear in this location, even though it is a heritage conservation area, would not appear to be unreasonable.

9 There were certain other conditions that were in issue. But the applicants and the council have come to agreement as regards the amendments that would be required for the other conditions, and I will endorse the agreement reached.

10 Accordingly, the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted in accordance with the council’s development consent dated 29 July 2004 with the following amendments to the conditions of that consent:
(1) In condition 2, replace “400 mm” with “200 mm” and replace “5.9 m” with “6.1 m.”
(2) Delete condition 3 and insert instead:
“3. The proposed structure is to be set back from the northern side boundary sufficiently to ensure the retention of the existing dividing fence between Nos. 19 and 21 Balfour Road.”
(3) Delete condition 6 and instead:
“6. The balcony at the proposed rear first floor shall be in accordance with drawing 31/04 dated 9 April 2004 sheet 1 with the following modification. The southern privacy screen shall be constructed of 1.8 m high horizontal solid overlapping timber slats (no openings) cantilevered 450 mm beyond the 2 m projection of the balcony. Details of compliance are to be provided in the construction certificate plans.”

3. The exhibits, other than exhibits A, B and 2, may be returned.
_______ _____
A J Nott
Commissioner of the Court