Hitchen v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hitchen v Waverley Council [2011] NSWLEC 1229

Hearing dates:

21 July 2011

Decision date:

21 July 2011

Jurisdiction:

Class 1

Before:

Smithson AC

Decision:

(1)The appeal is upheld.

(2)The application under s 96 of the Environmental Planning and Assessment Act is approved and the deferred commencement conditions are therefore removed from the consent.

(3)The exhibits are returned to the parties with the exception of exhibits 6 and A.

Catchwords:

DEVELOPMENT MODIFICATION, s96 modification, deferred commencement conditions, setback and bulk, preservation of amenity, preservation of views, loss of light, neighbour's objection

Legislation Cited:

Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2010

Cases Cited:

Pafburn v North Sydney Council [2005] NSWLEC 444 (16 August 2005)
Tenacity Consulting v Warringah Council [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Ross and Yelny Hitchen (Applicants)

Waverley Council (Respondent)

Representation:

Ms M Taylor
Bartier Perry (Applicants)

Ms C Morton
Sparke Helmore Lawyers (Respondent)

File Number(s):

10383 of 2011

EX TEMPORE Judgment

1. This is an appeal against a refusal by Waverley Council (the Council) to modify development consent 250/2010 under s 96 of the Environmental Planning and Assessment Act 1979 for alterations and additions to an existing detached dwelling at 283 Military Road Dover Heights including the addition of a second storey.

1. The proposal is to delete two deferred commencement conditions of the approval, which require respectively increased rear setbacks and deletion of an upper floor privacy screen to the dwelling's southern balcony.

1. The grounds raised by the council are that the conditions are required as, without the increased setback to the rear eastern external walls at both levels, the rear setback would contribute unnecessary bulk and scale to an adjoining dwelling to the south and that the deletion of the privacy screen is required to preserve the amenity of that same residence.

1. In terms of the site, the subject site (the site), lot 75 DP 837, is located on the eastern side of Military Road on the corner of Eastern Avenue in Dover Heights. It contains an existing single storey detached dwelling with a basement level set back 350 mm on the southern boundary and 170 mm from the northern boundary of the site.

1. A 5 m wide vegetative nature strip adjoins the northern boundary and access to the site is via a driveway from the rear. The building is situated predominantly below the level of Military Road. The site is not heritage listed nor located in a conservation area or residential character study area. It is surrounded by residential development predominantly comprising dwelling houses of up to two to three storeys and some residential flat buildings.

1. By way of background, in September 2010, Waverley Council granted consent to alterations and additions to the existing dwelling subject to two deferred commencement conditions which read as follows:

1.   The rear setback of the alterations and additional storey contribute unnecessary bulk and scale to the detached dwelling. In this regard…