Arttech Design v Woollahra Municipal Council

[2006] NSWLEC 314

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Arttech Design v Woollahra Municipal Council [2006]  NSWLEC 314

PARTIES:
Applicant:
Arttech Design

Respondent:
Woollahra Municipal Council

CASE NUMBER:      10289  of       2006

CATCH WORDS:      Development Application

LEGISLATION CITED:

CORAM:       Roseth SC

DATES OF HEARING:       07/06/2006

EX TEMPORE DATE:         07/06/2006

LEGAL REPRESENTATIVES

Applicant:
Ms T Spiegel, solicitor of Spiegel and Associates Pty Ltd
Respondent:
Mr M Connell, solicitor `of Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

7 June 2006

10289 of 2006     Arttech Design v Woollahra Muncipal Council

JUDGMENT

1. Senior Commissioner:  This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application to convert part of the roof of 229 O’Sullivan Road, Bellevue Hill to a two roof terraces.  The council has refused the application, though the council’s officers consider that a reduced roof terrace would be acceptable.  They suggest that the balustrade be moved in line with the eastern edge of the lift overrun. 

2. There are four properties adjoining the subject site to the west, whose rear yards could be overlooked from the roof terrace.  Mr R Sobel owns 1 Boronia Road, which is one of those properties.  However, 7 Boronia Road is more vulnerable and has a swimming pool in the rear.  If the privacy of that property is protected, then Mr Sobel is also protected. 

3. If the sight line from the proposed roof terraces is such that a 2m high person standing at the face of the house at 7 Boronia Road cannot be seen from the roof terraces, then the privacy of that property is protected to the extent that is reasonable in an urban situation.  This requirement is achieved when the western balustrade is 2.2m from the western face of the lift overrun.  

4. Both the applicant and the council’s officers have agreed to this determination.  The council’s position is that no roof terrace is appropriate.  I have taken this into account; however, in this case the proposed roof terraces have such minor impact that it is appropriate to approve them in their reduced form. 

5. I note that a small section of the glass balustrade exceeds the maximum height of 9.5m by about 200mm.  The applicant has tendered an objection under State Environmental Planning Policy 1.  The council’s officers have raised no issue with it. 

   Orders

6. The appeal is upheld. 

1. Development application to convert part of the roof of 229 O’Sullivan Road to two roof terraces is determined by the frant of consent subject to the conditions in Annexure A. 

1. Exhibits 1 and A are retained on the Court’s files. 

   _______________
   Dr John Roseth

Senior Commissioner