Chiefari v Waverley Council - [2017] NSWLEC 1567

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Chiefari v Waverley Council [2017] NSWLEC 1567
Hearing dates: 14 and 15 September 2017
Date of orders: 10 October 2017
Decision date: 10 October 2017
Jurisdiction: Class 1
Before: Dixon C
Decision:
The Court orders:
1. The appeal is upheld.
2. The application to modify development consent no. 486/2013 to include a roof top terrace of not more than 15m2, including a glass balustrade and opaque glass privacy screen at 172 Hasting Parade, Bondi is approved subject to the Council’s proposed conditions of consent.
3. The Exhibits are returned apart from Exhibits 2 and B.

Catchwords: MODIFICATION APPLICATION - roof top terrace - impact on views, privacy and amenity; height compliance - INTERPRETATION - Waverly DCP 2012 - whether developments ‘contiguous’ to the subject site include a roof terrace - meaning of ‘contiguous’
Legislation Cited: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 2012
Cases Cited: Goldin & Anor v Minister for Transport Administrating the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75
HSN Holdings Bondi 2 v Waverly Council [2016] NSWLEC 1574
Texts Cited: Waverley Development Control Plan 2012
Category: Principal judgment
Parties: Tony Chiefari (Applicant)
Waverly Council (Respondent)
Representation:
Counsel:
Mr P Tomasetti SC (Applicant)
Mr S Patterson (Respondent)
Solicitors:
BCP Lawyers and Consultants (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2017/146965
Publication restriction: No

Judgment

This is an appeal pursuant to section 97AA of the Environmental Planning and Assessment Act1979 (‘EP&A Act’) against the refusal by Waverley Council of an application (DA 486/13D) to modify an approved dwelling (DA 486/13) at 172 Hastings Parade, Bondi (‘the subject site’) to add a 15m2 roof top terrace and access stair under an existing skylight. The design includes a transparent glass balustrade set back variously 3.39m to 4.19m from the front façade and a single lightweight privacy structure erected outside the terrace area made of toughened obscure glass parallel to the side boundary, set back 2.955m from the boundary and 4.19m from the front façade (‘the proposal’).
The background facts, statutory controls and original contentions are detailed in the Council’s Statement of Facts and Contentions (Exhibit 2) and the applicant’s Statement in Reply (Exhibit B). I do not need to repeat that detail, which I have read, save to note that the Council’s concern that the development will generate privacy impacts for the dwelling to the south, and facilitate opportunity for overlooking toward the properties adjacent (in particular into the property owned by the objector at 172 Hasting Parade) have been satisfactorily addressed by a redesign of the proposal to include a modified glass balustrade and opaque privacy screen (joint planners report Exhibit 3 at 2.2.1.1).
Put simply, the parties’ town planning experts, Steven Layman (respondent) and Kerry Nash (applicant), now agree that the proposed balustrade and privacy screen will not intrude into the 9.5m height control in cl 4.3 of the Waverley Local Environmental Plan 2012

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.

Continue reading Chiefari v Waverley Council

Details

AGLC: Chiefari v Waverley Council [2017] NSWLEC 1567
Case: [2017] NSWLEC 1567
Decision Date: 10 October 2017

CaseChat Overview and Summary

The case of Chiefari v Waverley Council involved the plaintiff, Chiefari, who sought to modify the development consent granted to them for a property located at 172 Hasting Parade, Bondi. The defendant, Waverley Council, opposed the modification application. The dispute was heard and determined in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the modification application for the inclusion of a rooftop terrace, including a glass balustrade and opaque glass privacy screen, should be approved. The court was required to consider whether the proposed modifications complied with the relevant planning laws and whether they were in accordance with the local planning policies and guidelines. Additionally, the court had to assess whether the modifications would have any adverse impact on the surrounding environment or the character of the locality.

In delivering its judgment, the court found that the proposed modifications were consistent with the development consent granted to Chiefari and were in line with the local planning policies. The court determined that the modifications would not result in any significant adverse impact on the environment or the character of the locality. Consequently, the court approved the modification application, subject to the Council’s proposed conditions of consent. The court also ordered that the appeal be upheld and that the exhibits be returned, except for Exhibits 2 and B.

Orders

Orders of the court

The Court orders:

1. The appeal is upheld.

2. The application to modify development consent no. 486/2013 to include a roof top terrace of not more than 15m2, including a glass balustrade and opaque glass privacy screen at 172 Hasting Parade, Bondi is approved subject to the Council’s proposed conditions of consent.

3. The Exhibits are returned apart from Exhibits 2 and B.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chiefari v Waverley Council [2017] NSWLEC 1567
Hearing dates:	14 and 15 September 2017
Date of orders:	10 October 2017
Decision date:	10 October 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	The Court orders: 1. The appeal is upheld. 2. The application to modify development consent no. 486/2013 to include a roof top terrace of not more than 15m2, including a glass balustrade and opaque glass privacy screen at 172 Hasting Parade, Bondi is approved subject to the Council’s proposed conditions of consent. 3. The Exhibits are returned apart from Exhibits 2 and B.
Catchwords:	MODIFICATION APPLICATION - roof top terrace - impact on views, privacy and amenity; height compliance - INTERPRETATION - Waverly DCP 2012 - whether developments ‘contiguous’ to the subject site include a roof terrace - meaning of ‘contiguous’
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Goldin & Anor v Minister for Transport Administrating the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 HSN Holdings Bondi 2 v Waverly Council [2016] NSWLEC 1574
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Tony Chiefari (Applicant) Waverly Council (Respondent)
Representation:	Counsel: Mr P Tomasetti SC (Applicant) Mr S Patterson (Respondent) Solicitors: BCP Lawyers and Consultants (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/146965
Publication restriction:	No