Nikolaidis v Pittwater Council

[2007] NSWLEC 678

Land and Environment Court

of New South Wales

CITATION:	Nikolaidis v Pittwater Council [2007] NSWLEC 678
PARTIES:	APPLICANT Leon and Brigitte Nikolaidis RESPONDENT Pittwater Council
FILE NUMBER(S):	10425 of 2007
CORAM:	Tuor C
KEY ISSUES:	Section 96 Application :- to amend development consent for a new dwelling by addition of a parapet Impact of height and bulk
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	28/09/2007
EX TEMPORE JUDGMENT DATE:	28 September 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr M Seymour, barrister SOLICITORS M D Nikolaidis & Co RESPONDENT Ms D Townsend, solicitor SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

28 September 2007

10425 of 2007 Leon & Brigitte Nikolaidis v Pittwater Council

JUDGMENT

1 This is an appeal against the refusal by Pittwater Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (N0135/02) to construct a new dwelling at 4 Princes Street Newport (the site). The dwelling is currently under construction and the application seeks to amend the approved plans to increase the height of the dwelling by adding a parapet, which is also partly constructed.

2 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions.

3 The appeal was initially held on site on 10 August 2007. The Court heard evidence from a number of adjoining residents as well as expert planning evidence from Mr Chris Wilson, on behalf of the council, and Mr Scott Barwick, on behalf of the applicant.

4 The main concern of the residents was that the proposed parapet would increase the height and bulk of the dwelling which they considered was already excessive. The applicant submits that the parapet is required to screen an air conditioning unit. The rationale for providing it around almost the full extent of the house was to achieve architectural consistency. The residents also considered the extent of the parapet was not necessary to screen the air conditioning unit which could be placed in another location.

5 Mr D Letts, of 6 Princes Street, was concerned that the existing building had been built to his boundary and resulted in an unacceptable bulk which would be exacerbated by the proposal.

6 At the hearing on 10 August, I handed down preliminary findings which required that the parapet be limited to the area required to screen the air conditioning unit and that the parapet proposed for the rest of the building be deleted. I accepted the residents’ concerns and those of Mr Wilson that the parapet would increase the height and bulk of the dwelling. While the proposal complies with the height controls in Pittwater Development Control Plan 21 (DCP 21) it does not comply with the setback and envelope controls and appears a bulky building in the context of the site.

7 The experts recommended that the planter box on the northern elevation be amended to provide planting that would soften the impact of the development from Mr Lett’s property. The applicant has agreed to this amendment.

8 Directions were issued on 10 August 2007. The parties come before me today with plans and amended conditions, which implement those directions. I am satisfied that the plans and conditions reduce the impact of the proposed amendments to an acceptable level.

9 The Orders of the Court are:

(1) The appeal is upheld.
(2) The section 96 application for modification to Development Application N0135/02 which comprises alterations to the northern, eastern and southern parapets, and changes to the planter box on the northern elevation, in relation to Lot 1 in Deposited Plan 1085241, known as 4 Princes St, Newport, is approved subject to the conditions in Annexure “A”.
(3) The exhibits, except exhibits A and 1, may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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