Schiano v Randwick City Council [2005] NSWLEC 81

Schiano v Randwick City Council [2005] NSWLEC 81

The council's requirement to reduce the balcony projection to 1 m would not necessarily improve privacy for the adjoining southern neighbours because a shorter privacy screen could allow viewing to important private areas. A 2 m balcony with a southern privacy screen constructed of 1.8 m high solid overlapping timber slats and cantilevered 450 mm beyond the balcony projection would better reduce overlooking while allowing reasonable amenity for the applicants. The appeal was therefore upheld and the development consent conditions were amended.

Jurisdiction
Australia
Judgment Date
01 March 2005
Procedural Posture
Appeal Under S 97 of Environmental Planning and Assessment Act 1979 Concerning Development Consent Conditions for Alterations and Additions to a Dwelling House / Binding Determination Under S 34 of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development consent granted with amended conditions.
Legal Topics
['development Application' 'residential Alterations and Additions' 'balcony Privacy Impacts' 'development Consent Conditions' 'visual and Acoustic Privacy']
['planning and Environment' 'development Consent'] ['development Application' 'residential Alterations and Additions' 'balcony Privacy Impacts' 'development Consent Conditions' 'visual and Acoustic Privacy']

Case Brief

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Procedural Posture

Appeal Under S 97 of Environmental Planning and Assessment Act 1979 Concerning Development Consent Conditions for Alterations and Additions to a Dwelling House / Binding Determination Under S 34 of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the condition reducing the proposed rear first-floor balcony depth from 2 m to 1 m was necessary or appropriate to maintain privacy to adjoining properties.' 'Whether a 2 m balcony with an extended southern privacy screen would provide reasonable privacy protection while preserving amenity for the applicants.' 'Whether other disputed development consent conditions should be amended by agreement between the applicants and the council.']

Ratio Decidendi

The council's requirement to reduce the balcony projection to 1 m would not necessarily improve privacy for the adjoining southern neighbours because a shorter privacy screen could allow viewing to important private areas. A 2 m balcony with a southern privacy screen constructed of 1.8 m high solid overlapping timber slats and cantilevered 450 mm beyond the balcony projection would better reduce overlooking while allowing reasonable amenity for the applicants. The appeal was therefore upheld and the development consent conditions were amended.

Court Disposition

Appeal upheld; development consent granted with amended conditions.

Orders

  • ['The appeal is upheld.' "Development consent is granted in accordance with the council's development consent dated 29 July 2004 with amendments to conditions 2, 3 and 6." 'In condition 2, replace "400 mm" with "200 mm" and replace "5.9 m" with "6.1 m."' 'Delete condition 3 and insert instead: "3. The proposed...