McAuliffe v Sydney City Council

[2006] NSWLEC 27

Land and Environment Court

of New South Wales

CITATION:

McAuliffe v Sydney City Council [2006] NSWLEC 27

PARTIES:

APPLICANT
Chris McAuliffe

RESPONDENT
Sydney City Council

FILE NUMBER(S):

11089 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Terrace house alterations - privacy screen - size and scale

DATES OF HEARING:

20/01/2006

EX TEMPORE JUDGMENT DATE:

01/20/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKEES

RESPONDENT
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

20 January 2006

11089 of 2005 Chris McAuliffe v Sydney City Council

JUDGMENT

This decision was given extemporaneously.

It has been revised and edited prior to publication.

1 This appeal is against council’s deemed refusal of a development application for alterations comprising dormer windows and balcony privacy screen, to an approved dwelling application of 56 Telopea Street, Redfern. The approved building works are currently being undertaken and the appeal was lodged against the refusal of the dormer windows in both the street elevation and rear elevation of the roof. However, at the hearing, the application for the front dormers was abandoned by the applicant, with the remaining unresolved matter concerning the impact of the rear north facing dormer windows in the roof of the third bedroom.

2 The issues relate to the size and scale of the dormer, its relative location on the roof and the specification for the windows, in terms of the amenity impacts on neighbouring properties as raised by council and a number of objections from the neighbours.

3 The full details of the proposal and planning framework are contained in the Statement of Basic Facts on which I rely. From this I accept that there is discretion to allow the proposed rear dormer subject to satisfactory amenity impacts and council’s planner Ms Del Duca has accepted this concept.

4 The applicant’s architect Mr Wakeham explained the desirability for retaining the rear dormer, so as to achieve efficient air circulation for the terrace house. Accordingly the proposed width of 2.6 m wide is preferred to achieve this.

5 The main controls for the dormer are contained in the Heritage DCP, which provides:

Dormer windows should relate to the scale and symmetry of the building and should not adversely affect the building and should not adversely affect the unity and balance of the streetscape for the item.

6 With respect to the size, Ms Del Duca acknowledges that 2.6 m dormer width is acceptable in the scale of this building but considers it is not satisfactorily located, because it is not symmetrical along the 4.2 m roof-line. This asymmetry arises because of the proposed 900 mm setback to the common wall required under the BCA, leaves a 700 mm setback to the western wall.

7 Having undertaken a view, I am satisfied that in the circumstances of this case, where the building is on the end of a row of terraces and at the street corner and the significant, recently approved first floor extension substantially obscures the roof, then this asymmetry (in the order of 100 mm) is predominantly indiscernible. Accordingly, I am satisfied that the proposed location of this 2.6 m dormer satisfies the objectives of the DCP, in terms of acceptable streetscape impacts and its asymmetry is not such to warrant refusal.

8 The associated issue concerns the specification for the dormers, considering the applicant’s objective to obtain maximum solar access and air circulation relative to any adverse impacts on the neighbours. In the ultimate I accept the respondent’s revised specification for obscure glazing and fixing of the external dormer windows as per Sketch C, as representing a reasonable balance because in the first instance there is little impact on the eastern neighbouring properties.

9 Then, whilst there may be some overlooking opportunities onto the properties to the west, this will be limited and is in an oblique direction and there is an order of 20-25 m separation distance. Notwithstanding this, my observations on the view indicate that currently there are overlooking opportunities into the rear yards of these western properties, by the neighbouring terraces. In my assessment, the separation distances and proposed dormer window treatment will result in a higher standard of privacy than currently exists.

10 On balance then, I do not consider it reasonable to reject this application for the proposed rear dormer on the basis of undue overlooking or amenity impacts, considering surrounding context of this development.

11 Therefore the Court orders are:

1. The appeal is upheld.

2. Development consent is granted to DA No. D 2005/1241 for the construction of a rear dormer window at 56 Telopea Street, Redfern, subject to the conditions in Annexure ‘A’.

3. The exhibits be retained on the file.

___________________
R Hussey
Commissioner of the Court
rjs