Engelenmoore v Willoughby City Council

[2004] NSWLEC 514

Land and Environment Court

of New South Wales

CITATION:

Engelenmoore v Willoughby City Council [2004] NSWLEC 514

PARTIES:

APPLICANT
Engelenmoore

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10605 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Consent :- alterations and additions to dwelling
impact on adjoining properties

LEGISLATION CITED:

Development Control Plan
Willoughby LEP

CASES CITED:

DATES OF HEARING:

07/09/2004

EX TEMPORE
JUDGMENT DATE :

09/07/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms F. D'Agostino, solicitor
Mrs M.-L. Taylor, solicitor
of Norman Watrhouse Lawyers

RESPONDENT
Ms G. Duenow, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 September 2004

10605 of 2004 Engelenmoore v Willoughby City Council

JUDGMENT

This is an extempore judgment for an On-site Hearing

1 The matter has come before the Court today as consent orders. Prior to the proceedings today there were amended plans, that resolved many of council’s issues and today there were consent orders that were agreed to between the parties.

2 The issues raised that the residents had concerns about are with respect to the light spill proposed from the upper windows louvre windows to the dwelling house facing north. The two properties where objections were from are No. 40 and 42 Linden Way, Castlecrag.

3 The subject property is 36 Linden Way. It is proposed that there be alterations and additions but in effect this is a new dwelling house built at the subject property. The dwelling house has been architecturally designed and it is also accompanied by a landscape plan, which is to council’s satisfaction.

4 It is noted that the floor space ratio of the dwelling is one that exceeds council’s controls but no issue has been made in this regard. The council has come here today with the residents and their concerns have been comprehensively addressed.

5 The objections also raised concerns about the location of the television aerial. It is noted that council’s exempt and complying developments DCP provide for television aerial’s to be exempt if they satisfy certain provisions which are set out on page 6:

aerial and antenna and not including satellite dishes and microwave antenna are dealt with separate provisions below. Antenna and aerials must be related to the main building and must have a maximum height when mounted on the roof at 6 m above the highest level of the building and located behind the facade of the building. Single mast only and only one per site with a maximum width of 1.5 m.

6 There are provisions relating to satellite dishes and microwave antenna such that the dishes can only be a maximum height from the top of the dish of 1.8 m above ground level in this particular zone which, is 2a(2) and there are other requirements as well within the satellite dishes provisions. They are however, ones that could not be mounted on the roof-top of the dwellings as such and the only antenna are a single mast antenna television aerial.

7 It is not a matter that often comes within the provisions of conditions but given the development as a total in terms of the integrated style of the development and the landscaping it is appropriate that this detail be attended to at this point in time given that there are many details provided within the plans that were received today and the re-development is for a substantial dwelling.

8 The applicant has agreed at the end of the day to locate the aerial at the eastern end of the dwelling. It is noted that this is in a location that my not normally be approved by the council from a streetscape point of view. However, having regards to the views from both No. 40 and 42 it is important to ensure there is appropriate view sharing in an area such as Castlecrag where there are detailed controls in the Development Control Plan that consideration be given to this. This Court has the opportunity of viewing it from the streetscape and having regard to the landscaping proposed and having regard to the overall design of the building it is considered it would be appropriately located on the eastern end of the dwelling and the applicant has now agreed.

9 With respect to the issue of the glazing and the light spill and the form of lighting proposed I have the benefit of Mr Moore’s evidence the architect in terms of the rationale or purpose behind the style or form of lighting and also had the benefit a clear understanding of what the louvers would provide for. The louvers could not be tilted at a greater angle than 90o and that cannot be angled above the horizontal plains and when viewed from above one will not be able to see into the louvers but it will be seen as glass and it will be translucent glass. We have had great explanation as to the degree of transparency or the degree of translucency and it is a translucent glass that has white plastic between two glass panels and as such the visibility is not great.

10 I’ve also had regard to the fact that the properties at the rear are higher in terms of topography and having regard to the angling of the louvres and in my assessment while it will be visible to see lights on in the rooms this is not uncommon in any dwelling house and it is not a matter that would warrant refusal of this application or any further conditions on lighting. Lighting is something that once again does not normally come into the province of development assessment to this detail and the lighting as proposed is for the internal lighting for the room as apposed to external lighting and I’m satisfied that the design of the building will allow light to be seen at night but it is not of such an adverse impact or significant impact it would warrant refusal of the application or amendments to the application or special conditions. I understand that when people live in a locality such as this that there is always concern and fear about change and that is to be expected of human nature. However, the application is worthy of approval and it would seem unreasonable to attach further conditions.

11 The Court’s role is to assess whether a proposal is satisfactory and that the impacts are not unreasonable. This is not to say there will not be any impacts with new development but the purpose of the Court is to look at whether those impacts are reasonable and in my assessment and having the benefit of the council’s assessment officers report I’m satisfied that the consent orders as proposed and agreed to between the parties should be entered into.

12 Therefore, the formal orders of the Court in this matter are by consent:

1. The appeal in respect of the property known as 36 Linden Way, Castlecrag is upheld;

2. The development application for a dwelling house submitted to Willoughby City Council, and as amended and shown in plans prepared by Engelenmoore (Exhibit A), is approved subject to the conditions contained in Annexure A (Annexure A is the conditions council originally imposed on the development consent except for those that the parties agreed to be deleted and with the deferred commencement to be incorporated as a condition of consent requiring details to be submitted prior to the construction certificate being issued, and with an additional condition imposed that any aerial/antenna is only to be erected at the eastern end of the dwelling with no other structures on the roof and no approval is granted for a satellite dish or microwave antenna);

3. The exhibits are returned with the exception of A and 1 which are retained for the Court’s file; and

4. There is no order as to costs.

_________________________
J S Murrell
Commissioner of the Court
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