Mirams v North Sydney Council
[2011] NSWLEC 1348
•20 October 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Mirams v North Sydney Council [2011] NSWLEC 1348 Hearing dates: 19 October 2011 Decision date: 20 October 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld.
(2)The development consent no 534/07 is modified to amend condition C3 of development consent 594/07 to delete the words "and the dinning room " from condition C3 (a).
(3)The exhibits are returned.
Catchwords: Development Appeal - modification of condition of consent, privacy and amenity impacts on adjoining dwelling Legislation Cited: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002Category: Principal judgment Parties: Paul Mirams (Applicant)
North Sydney Council (Respondent)Representation: Mr P Mirams (Applicant in person)
Ms Gerathy solicitor (Respondent)
HWL Ebsworth Lawyers
File Number(s): 10813 of 2011
Judgment
This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the EP and A Act ) in relation to the refusal of a modification application for a residential dwelling at 45 Ryries Parade, Cremorne. The applicant seeks consent to amend a condition of the approval to delete the words "and the dining room" in condition 3C(a).
The applicant wants consent to install a clear glass louvre window in the northeastern elevation of the approved dwelling. The current condition (unamended) required fixed and obscured glazing to the window. Relevantly, the council has asked the Court to approve this application by consent orders.
The appeal was heard on site and this allowed the Court the opportunity to inspect the applicant's partly constructed dwelling and the home of the main objector to the application, the owners of the adjoining property at 47 Ryries Parade. Those parties also orally addressed the Court.
It was explained to the objectors during the hearing that the council has not raised any planning concern in respect of the proposed amendment. The council's evidence is that the window, if installed with clear glass louvre, will not interfere with the amenity, privacy (visual or aural) enjoyed by owner of the adjoining property at 47 Ryries Parade.
Despite that, the objectors invited the Court to consider their concerns. They believe this amendment will result in a loss of privacy to their bedroom and balcony and their front entry entertaining area. They also were concerned about the impact of light at night on their amenity and unacceptable noise emanating from the interior of the dwelling when the windows are opened. They do not accept that the 7 to 8 m separation between the bedroom, balcony and the window is sufficient to ensure their already substantially diminished amenity.
Both properties enjoy magnificent views of the water and their main living areas and open space, because of the topography, are at the street frontage. Given the fall of the land the objectors' property at the bedroom level looks down at the window at issue. The objectors believe that a person standing in the applicant's dining room will be able to see up into their bedroom and balcony. Having stood in that area of the applicant's home at the view I do not accept their evidence. Given the angle I do not believe there would be unreasonable overlooking from the living area of the applicant's home through the window. The planning evidence of council does not accept their evidence in respect of an unacceptable impact on privacy or visual or acoustic amenity (p 7 council's PDS report 28/3/2011).
It is a fact that the council has approved a large dwelling on the applicant's land which sits forward of the objector's home. Despite that however, there is no planning ground to refuse the modification of condition 3C based on the evidence before me. The amendment does not compromise the objectives in cl 14 of the North Sydney Local Environmental Plan 2001 or council's North Sydney Development Control Plan 2002 (DCP). The window is providing natural light; solar access and ventilation to a main living area in the applicant's open plan dining and kitchen area. It is commonplace to have a window on a side boundary and in this case the window at 1.6 m above the floor is more than compliant with the council's controls.
At the request of the objectors I inspected the existing vegetation on their boundary with the applicant's dwelling near the window at issue. The objectors contend that works carried out by that applicant under the subject approval have adversely compromised their vegetation and inturn their amenity and privacy. They believe it the vegetation will not survive the construction works on the boundary . While I appreciate their concern to maintain that vegetation at that location because it offers mutual privacy to both property I have no jurisdiction to entertain any complaint in this appeal.
As I explained to the objectors at the hearing onsite, the applicant's dwelling is approved and there is nothing the Court can do to change that fact. Furthermore, the council's planning officers support the modification proposed in this appeal and in the council's PDS report of 4 March 2011 state at p 2:" The proposed window will have no material impact on the privacy currently enjoyed at 47 Ryries Parade, and, furthermore, the location and size of the window ensures that no casual views, which impact on the privacy, would occur ".
Based on the above, and following the site inspection and a consideration of the relevant LEP and DCP I find that the application is acceptable on a merit assessment under s 79C of the Act. Accordingly, the Court accepts the parties agreed position and makes the following orders by consent:
(1) The appeal is upheld.
(2) The development consent no 534/07 is modified to amend condition C3 of development consent 594/07 to delete the words " and the dining room " from condition C3 (a).
(3) The exhibits are returned.
Susan Dixon
Commissioner of the Court
Decision last updated: 01 December 2011
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