Henry v Noth Sydney Council

[2005] NSWLEC 740

Land and Environment Court

of New South Wales

CITATION:

Henry v Noth Sydney Council [2005] NSWLEC 740

PARTIES:

APPLICANT
Rupert Henry

RESPONDENT
North Sydney Council

FILE NUMBER(S):

11206 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- s 96 modification for a multilevel dwelling.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

21/12/2005

EX TEMPORE JUDGMENT DATE:

12/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr T. Riley, solicitor

RESPONDENT
Ms R. Dixon, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

21 December 2005

11206 of 2005 Rupert Henry v North Sydney Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal arises from the conditions imposed by Council on a s 96 Modification application for multilevel dwelling at 18 Cowdroy Ave, Cammeray. The following conditions are the subject of the appeal:

· Condition 46, which deals with the provision of privacy screens along the eastern and western elevations of the northern terrace,
· Condition 51, which deals with the type of windows on the western elevation,
· Condition 52, which deals with the extent of the northern terrace.

2 The appeal was conducted by way of an on-site hearing (OSH), where the Court had the opportunity of viewing the development and hearing the objections of neighbours. These objections relate to the overlooking opportunities from the terrace onto the neighbouring pool area and terrace at 1/16 Cowdroy Ave and also into the neighbouring bedroom areas of 2/16 Cowdroy Ave.

3 After consideration of these objections, the applicant offered the provision of a 1.5 m high (from terrace level), to be attached to the outer wall of the planter box, which is also to incorporate screening vegetation.

4 Following the neighbours consideration of this proposal, they generally accepted it as satisfactory.

5 The other appeal conditions 51 and 52 were not pursued because the parties agreed to the modified conditions.

Findings.

6 Having considered the evidence and had the opportunity of viewing the development and adjoining properties, I am satisfied that the applicants proposal to provide the 1.5m (effective) screen, together with the landscaping will result in a reasonable balance between the neighbours privacy and the amenity of the subject development.

7 In determining this matter, I have taken into account that the overlooking opportunities towards the neighbouring, western properties is in a distinctly secondary viewing corridor and at an oblique angle. Otherwise, the primary viewing corridor is northerly towards the very attractive Long Bay and parkland. Also, the positions for overlooking are somewhat restricted along the relatively narrow passageway adjacent to the planter box, as compared to the other primary outdoor entertaining area, where overlooking opportunities are limited.

8 I have also considered the council's proposed condition 46, which is similar to the applicants except it proposes the extension of the privacy screen by a further 750mm (approx.). From my observations on the view, this extension is unnecessary to satisfy the overlooking concerns. Furthermore, it would marginally increase the bulk of the building, which is undesirable.

9 Therefore I consider the applicant's proposal for the provision of the screen to achieve a 1.5m height above terrace level represents a reasonable balance in this matter. I also accept the agreed conditions 51A and 52A are satisfactory for imposition. In determining these matters, I note the applicants notice of a possible costs application.

Court Orders.

1. The appeal is upheld.

2. The s 96 modifications at 18 Cowdroy Avenue, Cammeray are allowed subject to the following conditions:

46A (i) “lightweight privacy screens shall be provided on the eastern elevation of the north facing terraces at levels 2 and 3 generally in a form consistent with the sketch plan “B” 17/1/05 on the respondent’s file (the sketch plan) and such screens to extend to a point not less than 750mm back from the northern most edge of each terrace.
(ii) A lightweight privacy screen shall be provided to the western elevation of the north facing terrace at level 3 generally in a form consistent with sketch plan, such screen to be erected on the western edge of the planter box on level 3 and extend the length of the planter box at a height of 1.5 m above the floor level of the balcony on level 3.
(iii) Details demonstrating compliance with this requirement are to be submitted with the construction certificate”.
(iv) Appropriate landscaping shall be provided in the planter box. Such landscaping to incorporate taller species of approximately 1.8 m height in the southern 3 m section and all landscaping to be in accordance with a detailed landscape plan / specification approved by Council.
51A The proposed new windows in the western elevation shall be frosted glass.
52A The proposed modification squaring off the splayed corners to the balconies on level 1, 2, 3 is approved.

___________________

R Hussey
Commissioner of the Court
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