Jordan v North Sydney Council (No. 2)

[2006] NSWLEC 246

Land and Environment Court

of New South Wales

CITATION:	Jordan v North Sydney Council (No. 2) [2006] NSWLEC 246
PARTIES:	APPLICANT Joseph Jordan RESPONDENT North Sydney Council
FILE NUMBER(S):	10824 of 2003
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification of consent - roof design - overshadowing - bulk
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Jordan v North Sydney Council [2003] NSWLEC 438
DATES OF HEARING:	09/05/06
EX TEMPORE JUDGMENT DATE:	05/09/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike and Fenwick RESPONDENT Mr M Causer, solicitor SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

9 May 2006

10824 of 2003 Joseph Jordan v North Sydney Council

JUDGMENT

1 COMMISSIONER: This is an appeal against an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent granted by the Land and Environment Court (Jordan v North Sydney Council [2003] NSWLEC 438) for an extension to an existing garage and a new roof at 50 Hayberry Road, Crows Nest (the site).

2 The appeal was conducted as an On Site Hearing and the judgement reflects the details in the Statement of Basic Facts and the findings given on-site.

3 The issues in the appeal focused on Condition J1 of the development consent granted by the Land and Environment Court on 10 November 2003. The conditions states:

The southern part of the proposed roof is to be hipped so that the main ridge commences 3 metres from the southern wall.

4 Mr Green, for the applicant, submitted that at the time of the previous hearing certain discussions and concessions were made that Mr Jordan strongly feels he was not a party to and did not know or consent to the amendments that occurred in the course of the hearing. As I understand, these related to Condition J1.

5 At the hearing Mr Jordan stated that Condition J1 was unacceptable because it provided an unbalanced building form for the garage as the gable end was retained for the northern end of the garage. He further stated that he did not believe that the retention of the gable end at the southern end of the garage would create any unacceptable overshadowing and bulk impacts on the adjoining property at 48 Hayberry Road.

6 The council provided evidence from Mr Richard Smyth, a town planner. He provided details of the additional overshadowing created by the retention of the gable end at the southern end of the garage when compared to the hipped roof required by Condition J1. It was his opinion that a modification to the design of the approved hipped roof would have a detrimental impact on the amenity of the private open space of the adjoining neighbour.

7 Mr Anthony Gleave of 48 Hayberry Road also provided evidence to the Court and expressed concern that the modification would lead to an increase in bulk and scale and impacts on amenity and overshadowing.

8 With the benefit of view of the site and an indication of the location and extent of the southern gable end of the garage from Mr Gleaves rear yard and adjoining living-room, I find that Condition J1 should be retained.

9 In essence, the Court was asked to determine whether the additional impacts created by a southern gable end of the garage on Mr Gleaves’ amenity outweighed the design issues of having a garage with a gable land and a hipped end. In my view, the answer is clearly yes.

10 Mr Gleaves property is only 4 metres wide and has limited external open space. The undisputed evidence of Mr Smyth was that additional shadows would be cast on Mr Gleaves property to around 11.30. The additional areas were shown on a plan prepared by Mr Smyth. While the additional overshadowing could not be described as significant in numerical terms, it nonetheless reduces the area available for solar access. When considered against the limited area of Mr Gleave's property, the strength of his submission is understandable and supportable.

11 I also accept that the additional bulk created by the gable end would be noticeable from the Mr Gleave's property however, as an isolated issue would not be sufficient to warrant the refusal of the application.

12 Mr Jordans concern that Condition J1 would result in balanced building form is not without some merit however I do not accept it is a sufficient reason to justify the additional overshadowing created on the adjoining property. Mr Jordan was asked whether his concerns would be overcome if a similar hipped form was provided at the northern end of the garage (to match the form required by Condition J1) however he maintained that the gable end should be retained at the northern end of the garage.

13 For these reasons, the Orders of Court are:

1) The appeal is dismissed.

2) Condition J1 of the development consent granted by the Land and Environment Court ( Jordan v North Sydney Council [2003] NSWLEC 438) for an extension to an existing garage and a new roof at 50 Hayberry Road, Crows Nest on 10 November 2003 is retained.
_____________
G T Brown
Commissioner of the Court