James Bale v Inner West Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

James Bale v Inner West Council [2017] NSWLEC 1515

Hearing dates:

18, 19 September 2017

Date of orders:

22 September 2017

Decision date:

22 September 2017

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court Directs that:
1. The applicant is to file an updated BASIX certificate for the development by 9am 28 September 2017

 

On filing of these documents, the Court will make the
following orders:

 (1) The appeal is upheld;
(2) Consent is granted to Development Application No. 201600408 for demolition of part of the premises and ground and first floor alterations and additions at 16 Jarvie Avenue, Petersham (Lot 6, DP 14518) subject to conditions in Annexure A, incorporating the following additional operational condition:
Windows W6, W5, as shown on the architectural floor plan for Level 1, are to have fixed blade louvres to a height of 1800mm above the floor with downward inflection, and adjustable above that. The bathroom window (W4) is to be fitted with translucent film.
Reason:   To ensure appropriate visual privacy for adjoining properties.
(3) The exhibits are returned with the exception of A, B, D and 1.

Catchwords:

DEVELOPMENT APPEAL: against the refusal of alterations and additions to an existing dwelling – impacts on the significance of the heritage conservation area – amenity impacts on adjoining properties – compatibility of development with current and desired future character – impacts not sufficient to warrant refusal of application.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Cases Cited:

BGP Properties v Lake Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399
Davies v Penrith City Council [2013] NSWLEC 1141

Texts Cited:

Nil

Category:

Principal judgment

Parties:

James Bale (Applicant)
Inner West Council (Respondent)

Representation:

S Turner, Inner West Council (Respondent)
V Conomos, Conomos Legal (Applicant)

File Number(s):

2017/00133768

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal was lodged following the refusal by Inner West Council of development application number 201600408. The application sought approval for demolition of part of the existing dwelling as well as ground and first floor alterations and additions. The proposal is located at 16 Jarvie Avenue, Petersham (the Site). The main issue in the refusal was the works sought at the first floor.

2. The appeal was subject to mandatory conciliation on 18 September 2016 (34AA of the Land and Environment Court Act 1979 (Court Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) Court Act).

3. The Council maintains that the development application should be refused for the following reasons:

1. The proposed development would have an unacceptable, adverse impact on the significance of the streetscape and the relevant heritage conservation area (HCA); and

2. The proposed development will set an undesirable precedent for future development within the…