Willis and Tosich v Sydney City Council

[2004] NSWLEC 495

Land and Environment Court

of New South Wales

CITATION:

Willis & Tosich v Sydney City Council [2004] NSWLEC 495

PARTIES:

APPLICANTS
Gregory Willis & Melanie Tosich

RESPONDENT
Sydney City Council

FILE NUMBER(S):

10452 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Consent :- Section 121B order - demolish carport/deck/pergola - unsatisfactory visual amenity

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan

CASES CITED:

DATES OF HEARING:

01/09/2004

EX TEMPORE
JUDGMENT DATE :

09/01/2004

LEGAL REPRESENTATIVES:

APPLICANTS
Mr R Ash, solicitor

RESPONDENT
Ms J Jagot, barrister

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

1 September 2004

10452 of 2004 Gregory Willis and Melanie Tosich v
Sydney City Council

JUDGMENT

1 This appeal is against a s 121B Order No. 2 requiring the demolition of a rear deck/pergola on a two storey residence at 1 Upper Road, Forest Lodge. The matter was listed for hearing today and following a site inspection, the parties agreed that the matter be completed by way of an on-site hearing (osh).

2 Whilst the property is not a listed heritage item, it is however, situated in the Glebe Conservation Area. According to the applicant’s evidence, the deck and the additional pergola were necessary as a replacement for a pre-existing deck, over a carport that was structurally unsound. This reconstruction work practically involved and covered the same building footprint, except for the pergola which has been attached to the residence. This has been done apparently to achieve a reasonable level of privacy for the property owners.

3 The reconstruction work is considered unauthorised work by council, but the applicant’s witness submits that it is covered by the exempt work provisions of the LEP and other controls.

4 Notwithstanding this, the council’s main concern is with the visual impact of the existing terrace/pergola from the public domain. This involves the extent of the floor area, the height of the pergola and the enclosing lattice structure. Council’s heritage adviser, Mr Poulton pointed out that an important feature of the existing building, which was originally a corner shop, is its cantilevered balconies. However, the constructed pergola unsatisfactorily blocks views of the rear cantilevered balconies because of its height. He also says that the enclosing lattice screen is unsatisfactory and not an appropriate material specification in this Glebe Conservation Area. Instead he suggested that a more appropriate specification would be simple vertical timber handrails, which should ideally be attached to a reduced size balcony.

5 Following discussions between the parties, the applicant has agreed to amend the proposal and this agreement covers the removal of the pergola and reconstruction of the balustrade to a maximum height of 1.6 m above the finished floor level of the terrace and the top handrail to be designed and constructed in timber and painted black. There is also a re-specification for the timber balustrade vertical slats. Regarding the other renovations, the lattice and framing above the 1.05 mm is to be removed and it is agreed that this work to be completed by 1 October 2004. The Court is informed that these amendments are now acceptable to council, who agree to consent orders with the work being completed by 1 October 2004.

6 In my assessment of the appeal issues, I accept that some form of rear balcony/carport is permissible with consent. In this case it seems that the extent of the carport reasonably matches the existing opening in the stone wall of the Creek Street and it maintains the existing roller door and pedestrian door which Mr Poulton says is acceptable, in the streetscape.

7 Therefore in my assessment, I consider the footprint area of the balcony is acceptable and it will not create undue disamenity to any of the neighbours or to persons in the street domain.

8 I also accept the evidence of the heritage expert Mr Poulton, that the enclosed pergola does unreasonably impact on the existing residence by blocking views of the cantilever balcony and the amended proposal to remove the pergola overcomes this concern to a reasonable extent. I consider that the revised balustrade of 1.6 m high, with its flat, black painted timber specification results in a reasonable balance between the private interest for privacy on the balcony and the public interest of the visual impact of this proposal, in this situation.

9 Therefore I consider that consent orders are reasonable in this case and the Court orders by consent are:

1. The appeal is upheld.
2. Under s 121K of the Environmental Planning and Assessment Act 1979 , the Court substitutes the order under s 121 served by the council on 22 March 2004 the following order:
(a) On the Creek Street elevation a balustrade to a maximum height of 1600 mm above the finished floor level of the terrace including the top rail shall be designed and constructed of timber and painted in a black colour. The timber balustrade is to be simply detailed and is to be in the form of 55 mm wide vertical slats with a 20 mm wide space in between them.
(b) On the other elevations all lattice and all framing above 1050 mm is to be removed. The existing 1050 mm balustrade is to remain in its current form.
(c) All existing structures and lattice above the agreed balustrade details to be removed.
3. All work to be completed by Friday 1 October 2004.
4. No order as to costs.
___________________
R Hussey
Commissioner of the Court
rjs