Jafari v Waverley Council - [2009] NSWLEC 1141

Land and Environment Court

of New South Wales

CITATION: Jafari v Waverley Council [2009] NSWLEC 1141

PARTIES: APPLICANT
Ahmai Jafari v Waverley Council

FILE NUMBER(S): 10141 of 2009

CORAM: Taylor C

KEY ISSUES: DEVELOPMENT APPLICATION :- The use of roof tops for plant pots, visual, impact

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan
Building Code of Australia

CASES CITED: Grdinic v Council of the City of Sydney [2006] NSWLEC 512
Meriton v Sydney City Council [2004] NSWLEC 313
Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 30/04/2009

DATE OF JUDGMENT:
6 May 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A. Jafari, litigant in person
RESPONDENT
Ms C. Morton, solicitor
of Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C

6 May 2009

10141 of 2009 Jafari, Ahmai v Waverley Council
JUDGMENT

1 This is an appeal against a refusal of an application to modify a development application (DA91/07/A) under s 96 of the Environmental and Planning Assessment Act, 1979. The application was to regularise the placing of pot plants upon a colourbond roof that is located over the ground floor. The location of the subject dwelling is at 6 Gowrie Avenue, Bondi Junction. The parties had agreed in advance to me making a binding decision under s 34 (4) (b) of the Land and Environment Court Act, 1979.

The site and proposal

2 I had the benefit of viewing the subject site and the surrounds at the on site hearing on 30th April 2009. The subject house is a double storey semi-detached dwelling of inter-war age. Single storey detached dwellings from a similar period dominate the streetscape, although some of the dwellings have been modified to provide a second storey and balcony structure.

3 The site is located on the northern side of Gowrie Avenue with the Applicant’s balcony and colourbond roof having a northerly aspect. The property is bounded at its rear on all three sides by other properties. The private open space at properties number 4 and 8 Gowrie Avenue are not overlooked from the Applicant’s balcony, while the property to the rear, 35 Waverley Crescent, experiences some minor visual intrusion from the rear of 6 Gowrie Avenue.

4 The essence of the proposal was for planter boxes to be placed at the edge of colourbond roof (approximately 3 metres above ground level) so as to provide the Applicant with additional privacy when using his balcony, which adjoins the living room of his property. The proposal also included a watering system and wooden platforms upon which the planter boxes were to be placed and gate in the balcony’s existing barrier to provide access to the roof and planter boxes.

5 The Applicant had not supplied the Council with a detailed plan of the proposal with his s 96 application. There was plan on the Court file showing the intended layout of the planter boxes. Importantly, the…

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.

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Details

Case: [2009] NSWLEC 1141
Decision Date: 6 May 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Jafari v Waverley Council revolved around an appeal against the refusal of a development application modification. The applicant, Ahmai Jafari, sought to regularise the placement of planter boxes on the roof of his semi-detached dwelling at 6 Gowrie Avenue, Bondi Junction. The application was to amend the existing development consent to allow for the installation of these boxes on the roof for privacy and greenery purposes. The Waverley Council opposed the application, citing concerns about safety, visual impact, and compliance with the Building Code of Australia and the Waverley Development Control Plan.

The court had to decide whether the proposed use of the roof for planter boxes complied with the relevant planning controls and did not adversely affect the neighbouring properties. The legal issues included assessing whether the proposed modification would contravene the safety requirements of the Building Code of Australia, the streetscape and visual impact objectives of the Waverley Development Control Plan, and whether the modification would provide adequate privacy without significantly impacting the neighbours.

The court, after an on-site inspection and considering the objections from neighbouring residents, concluded that the applicant's proposal lacked sufficient detail and did not address critical safety and privacy concerns adequately. The court found that the proposed planter boxes would have a detracting effect on the streetscape and would not achieve the desired privacy for the applicant without imposing significant inconvenience on the neighbours. The court relied on precedents that emphasised the importance of balancing privacy needs with the overall visual amenity of the area. Ultimately, the court refused the application for modification, stating that the proposed design was not in compliance with planning controls and would result in an unattractive and unsafe structure. The court ordered that the appeal be dismissed and the application for modification be refused.

In summary, the court's decision was based on the insufficiency of the proposed design details, the potential safety hazards, and the negative visual impact on the neighbouring properties. The court upheld the Waverley Council's decision to refuse the modification application, ensuring that the development complied with the relevant planning and safety standards.

Orders