Symons Goodyer Pty Ltd v Manly Council

[2004] NSWLEC 357

Land and Environment Court

of New South Wales

CITATION:	Symons Goodyer Pty Ltd v Manly Council [2004] NSWLEC 357
PARTIES:	APPLICANT Symons Goodyer Pty Ltd RESPONDENT Manly Council
FILE NUMBER(S):	10327 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Addition of a balcony and sliding doors to a dwelling house - streetscape - front setback
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1998 Development Control Plan 2001
CASES CITED:
DATES OF HEARING:	10/06/2004
EX TEMPORE JUDGMENT DATE :	06/10/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones, solicitor SOLICITORS Hones Lawyers RESPONDENT Mr R K Graham, solicitor SOLICITORS Abbout Tout

JUDGMENT:

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THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

10 June 2004

10327 of 2004 Symons Goodyer Pty Ltd v Manly Council

JUDGMENT

1 This was a class 1 appeal No. 10327 of 2004 between Symons Goodyer Pty Ltd and Manly Council in regard to an application to amend condition 2 of an existing consent DA 51/04 to permit a southern facing balcony at No. 38 Upper Clifford Street, Fairlight.

2 The proposal was for a 2-storey house at No. 38 Upper Clifford Street on the corner with an un-named laneway leading to a Sydney Water pump station. The house had magnificent views to the south over the Sydney Heads and the monastery at Manly, and to the west over Forty Baskets Beach although the latter was obscured partly by trees and houses on the southern side of the street.

3 The council had approved the application for the deck on the basis that it be reduced in width to maintain a 4.5 m setback to the front boundary in accordance with the council’s Development Control Plan 2001 for the Residential Zone. That same Control Plan did allow for exceptions for unenclosed balconies to project into the front setback, provided there was no adverse impact on the streetscape or adjoining properties.

4 The applicant’s case was that the original application was for a 3 m wide balcony and it had measured the width of a table and chairs outdoor setting and found that there was a minimum of 2.6 m width needed to give seats on each side of the table and access thereto. The applicant was prepared to reduce the width of the depth to 2.5 m which would give a street setback of 3.627 m. The council in coming to this appeal had amended its position to allow a site inspection to allow a 4.127 m setback. This gave a 2 m wide balcony.

5 The applicant while appreciating that was a better position than the council had originally approved, still pressed for the width of 2.5 m also conceding that the length of the balcony would be reduced so that it would be the same width as the existing three south facing windows on the southern elevation of the house. That would mean that the balcony on the applicant’s proposal was now 2.5 m wide x 5.7 m long instead of 7.2 m long and 3 m wide.

6 The hearing was attended by local residents and the Court was taken to two nearby homes which were Nos. 40 and 42 Upper Clifford, and then also observed from the front window of the ground floor of unit No. 36 which was the immediate neighbour to the east of the subject property. It was noted that the objector from that unit had recently sold the property and would be moving out. The concerns expressed in regard to that was loss of valuation which of course having sold was no longer applicable. Other concerns expressed were those of noise from entertainment on the proposed deck and possible over viewing.

7 The Court had regard to the juxtaposition of the two buildings and saw that from the proposed deck the reduced width would only enable a person to see very obliquely into the front window of the living room of that apartment such that it could not constitute a significant loss of privacy.

8 In regard to noise of entertainment on the deck, there would be occasional entertainment no doubt. The council had already approved the deck so that particular adverse impact would be no greater than already consented to. In any case, in a suburban situation, it would not be a regular occurrence. It would be something that would occur from time to time in favourable weather particularly since the balcony faced the south and would be in shadow most of the time. Being in shade could be an advantage in summer, but the worst weather came from south so that there would be times when the northern deck on the subject property would be favoured.

9 In regard to the impact on streetscape, the Court was shown the area near the subject site. It consisted of a number of buildings which appeared to date from the early 1920’s, some in the inter war period and then the apartment building at No. 36 would be about 1950 vintage three-storey. Nearly all of the buildings had alterations and additions. Some houses on the southern side of the street had been completely replaced such that there was an eclectic mix of styles and designs.

10 The council had approved, or there had been constructed on several of these properties, decks within one or two metres of the front boundary in order to facilitate use of the aspect looking towards the magnificent views over the harbour. Given this eclectic mix and the location of the subject property, the Court could see no adverse effect on the streetscape by the proposal as now put by the applicant. There would be no unacceptable adverse effect on the most immediate neighbour at No. 36.

11 The neighbours at Nos. 40 and 42, when observations were made from their first floor living room decks on the southern elevation, it could be seen that the proposed deck would not obstruct any significant part of their views. They would retain magnificent views over the harbour and to the old monastery on the hill at Manly. They would be able to see people standing on the proposed deck but at such separation distances that reasonable privacy would be maintained particularly when the neighbours could see each other at much closer distances. The proposal could not be considered to create adverse privacy affectation.

12 Therefore the Court found no reason sufficient to refuse the proposal and therefore the orders the Court are:

1. The appeal is upheld.
2. That the deck on the southern side of No. 38 Upper Clifford Street, Fairlight, be as annotated in Exhibit A on Drawing No. TS-MK28/2 dated 17 January 2004 by Calldart Pty Ltd so that it is 2.5 m wide by 5.7 m long with splayed corners on the outer sides.
3. That condition 2 of development consent DA5l/04 issued by Manly Council on 2 April 2004, be amended to read as follows: "The proposed deck is to maintain 3.627 m setback from the front boundary (Upper Clifford Street frontage), and be reduced in length to match the proposed window openings at first floor level to minimise impacts on the streetscape and adjoining property to the east, plans being suitably amended prior to the issue of the Construction Certificate".
4. The exhibits be returned to the parties except for plan No. TS-MK28/2 and Exhibit B.

_____________
K G HOFFMAN
Commissioner of the Court
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