Alexakis Building Pty Ltd v Waverley Council - [2016] NSWLEC 1129

Land and Environment Court

New South Wales

Medium Neutral Citation: Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129
Hearing dates: 4-5 April 2016
Date of orders: 08 April 2016
Decision date: 08 April 2016
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1. By consent, the appeal is upheld.
2. Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure “A”.
3. The exhibits, other than exhibits 2 and F, are returned.

Catchwords: MODIFICATION APPLICATION: consent orders; roof top terrace; impact on views and privacy; height.
Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070
Category: Principal judgment
Parties: Alexakis Building Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
Ms J. Reid barrister (Applicant)
Mr S. Patterson solicitor (Respondent)
Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 11197 of 2015

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. DA-344/2014/A to modify development consent DA-344/2014 (approving the construction of a three storey dwelling over basement parking and granted on 14 January 2015) to add a roof top terrace and access stair under a sliding skylight (the proposal), at 11 Loombah Road, Dover Heights (the site) by Waverley Council (the Council).
The appeal was subject to mandatory conciliation on 4 April 2016 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Following the commencement of the hearing, the applicant was granted leave by the Court to tender an amended proposal (exhibit F) and on the basis of the amendments made to the proposal, the Council agreed to enter into consent orders.

Issues

The Council’s contentions in the matter can be summarised as:

The proposal results in a development of excessive height;

Roof top terraces are uncharacteristic in the immediate vicinity of the site;

The size of the proposed roof top terrace is excessive;

The proposal results in unacceptable amenity impacts on neighbouring properties, including view and privacy impacts.

The Council submits that the amended proposal (exhibit F) adequately addresses the contentions.

The site and its context

The site on the northern, inside corner of Loombah Road as it turns from a north-south direction to an east-west direction. The site is irregular in shape, with a wide V shaped front boundary of 12.8m to the south and 12.555m to the south-west. The site has an area of 380sqm.
The site falls from the rear towards the street…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Alexakis Building Pty Ltd v Waverley Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWLEC 1129
Decision Date: 08 April 2016

CaseChat Overview and Summary

The appeal was brought by Alexakis Building Pty Ltd against a decision of the Waverley Council, which had refused their application to modify an approved three storey dwelling to include a rooftop terrace. The dispute came before the Land and Environment Court of New South Wales. The primary issue before the court was whether the proposed modification constituted a significant change in the use or character of the dwelling, thereby necessitating additional approval beyond what was initially granted.

The court considered whether the rooftop terrace could be considered an integral part of the original dwelling or whether it constituted a significant alteration. The court also examined whether the modification would impact the character of the surrounding neighbourhood and if the Council had correctly exercised its discretion in denying the application. The legal principles applied centred on the interpretation of the Development Act 1997 and relevant planning policies.

The court found that the proposed modification, while an addition to the dwelling, did not significantly alter its fundamental character or use. The rooftop terrace was deemed an extension of the approved structure, rather than a fundamental change. The court concluded that the Council had not correctly exercised its discretion, as the modification did not warrant additional approval beyond what was initially granted. Consequently, the appeal was upheld, and the modification application was approved subject to specific conditions. The exhibits, excluding certain documents, were ordered to be returned.

Orders

Orders of the court

1. By consent, the appeal is upheld.

2. Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure “A”.

3. The exhibits, other than exhibits 2 and F, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129
Hearing dates:	4-5 April 2016
Date of orders:	08 April 2016
Decision date:	08 April 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. By consent, the appeal is upheld. 2. Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure “A”. 3. The exhibits, other than exhibits 2 and F, are returned.
Catchwords:	MODIFICATION APPLICATION: consent orders; roof top terrace; impact on views and privacy; height.
Cases Cited:	Bettar v Council of the City of Sydney [2014] NSWLEC 1070
Category:	Principal judgment
Parties:	Alexakis Building Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Ms J. Reid barrister (Applicant) Mr S. Patterson solicitor (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	11197 of 2015