Pizzuto v Randwick City Council - [2010] NSWLEC 1350

Land and Environment Court

of New South Wales

CITATION: Pizzuto v Randwick City Council [2010] NSWLEC 1350

PARTIES:
APPLICANT
Marino Pizzuto
RESPONDENT
Randwick City Council

FILE NUMBER(S): 10797 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION :- construction of rooftop terrace
impacts on amenity of the area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998(Consolidation)

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444
Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 13 December 2010

DATE OF JUDGMENT:
17 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms C Rose
SOLICITOR
Maddocks Lawyers
RESPONDENT
Mr A Seton
SOLICITOR
Marsdens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Morris C

17 December 2010

10797 of 2010 Marino Pizzuto v Randwick City Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to the provisions of s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Randwick City Council (the council) of an application which sought to modify development consent No. 232/2008 (the consent) by the deletion of a condition of that consent which has the effect of preventing the construction of a roof terrace above an approved garage. The modification included a proposal to install privacy screens around that terrace area.

The site and its context

2 No. 4 Northumberland Street, Clovelly (the site) is a rectangular shaped allotment located on the western side of the street between Park Lane and Warner Avenue. The site has a frontage of 10.06m, depth of 35.42m and area of 356.4m². Northumberland Lane provides vehicular access to the site and other properties in this section of Northumberland Street and also those which front Campbell Street.

3 The locality is residential in nature and comprises a mix of semi detached and freestanding dwellings. A number of residential flat buildings are located to the north of Park Lane and in the next street to the east, Ocean Street.

4 The immediate locality, incorporating those lots which obtain access from Northumberland Lane, comprises a series of single and two-storey dwellings, some of which include rear garages. All of those garages are single storey structures.

5 The site contains a two-storey dwelling, a double garage with access to the lane and a swimming pool in the south western corner.

Background and the proposal

6 The consent was issued by the council on 11 June 2008 and authorised the construction of alterations and additions to the dwelling, a swimming pool, rear decking, fencing, and an additional garage. The original development application also included a proposal to construct a trafficable roof deck above the garage. The council did not consent to that part of the application and included a condition in the consent to prohibit its construction. That condition, condition 6, reads as follows:

To maintain privacy to the adjoining properties the proposed roof terrace to the garage and access steps are to be deleted from the plans and the garage roof is not to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pizzuto v Randwick City Council

Details

AGLC: Pizzuto v Randwick City Council [2010] NSWLEC 1350
Case: [2010] NSWLEC 1350
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the case of Pizzuto v Randwick City Council, the applicant, Marino Pizzuto, appealed against the council's refusal to modify the development consent issued for the construction of alterations and additions to a dwelling. The primary issue was whether the proposal to construct a rooftop terrace over the garage, including additional privacy screens and pool fencing, complied with relevant planning controls and did not adversely impact the surrounding area. The court considered the compatibility of the proposal with the residential zone objectives, the impact on privacy, and the character of the locality.

The court found that the proposal would have an unacceptable impact on the privacy of neighbouring properties and was inconsistent with the objectives of the Residential A zone and the Dwelling Houses and Dual Occupancies Development Control Plan. The court held that the proposed terrace would result in significant overlooking opportunities to properties to the south, adversely affecting their amenity. Additionally, the increased height of the boundary fence and the additional privacy screens would contribute to the perceived bulk of the development, which was out of character with the area. The court concluded that the proposal was inconsistent with the objectives of the zone and refused the application for modification.

The court's final orders were to dismiss the appeal and refuse the application to modify the development consent, ensuring the exhibits were returned.

Orders