Poch v Waverley Council

[2006] NSWLEC 378

Land and Environment Court

of New South Wales

CITATION:

Poch v Waverley Council [2006] NSWLEC 378

PARTIES:

APPLICANT
Rithy Poch

RESPONDENT
Waverley Council

FILE NUMBER(S):

11564 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Development Consent :- Alterations and additions, s 96 amendment, construction to side boundary, light and ventilation to neighbour, maintenance of building on the boundary.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

27/03/2006

EX TEMPORE JUDGMENT DATE:

03/27/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr G Hartley, solicitor
SOLICITORS
Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

27 March 2006

11564 of 2005 Rithy Poch v Waverley Council

JUDGMENT

1 This is a class 1 appeal No. 11564/2005 between Rithy Poch and Waverley Council in regard to conditions of consent No. DA-715/2004 for alterations and additions to a 2-storey terrace house at 84 Rawson Avenue, Queens Park.

2 The additions sought to extend the ground and first floors of the terrace towards its northern boundary. Part of those extensions provided for a ground floor laundry and a bedroom above it to have zero side setback. The neighbour on the northern boundary, Ms Steele-Park, objected to the extensions coming to the boundary and council’s urban planner, Mr Ball, agreed.

3 The consent required a 900 mm setback at both ground and first floor. After a neutral evaluation procedure the parties agreed that the amended plans in Exhibit A were acceptable. They allowed the laundry to be built to the northern boundary but not the upper storey bedroom. It has to maintain a 900 mm setback.

4 Also I am advised the reduction in the second storey bedroom means the proposal does not exceed the floor space ratio permissible.

5 Ms Steele-Park was advised of the consent orders and maintains an objection as written in Exhibit 2. Living in Mudgee she could not attend this hearing. The proposal is on the south side of Ms Steele-Park’s house so that there is no overshadowing. The location of the windows in the proposal will not cause any privacy loss as they are located in such a way and conditioned to have frosted glass that would prevent such overlooking. Ms Steele-Park was concerned that the frosted glass may be replaced at some time. However, the drawings confirm and as a result create an explicit condition that frosted glass must be maintained in the windows. Ms Steele-Park has only one window on her southern side adjacent to the extensions and that window already faces a 2-storey section of the existing terrace house.

6 I do not believe that there will be any loss of light to that window as a result of the proposal. There will still be a 900 mm setback of the proposal from its side boundary adjacent the window in Ms Steele-Park’s. Reflected light of the painted northern wall of the proposal should give considerable illumination.

7 Her other concerns are the maintenance of the painted weatherboards of the extensions are not sufficient for refusal. The weatherboards have the normal 900 mm setback for maintenance and one must presume a responsible owner will maintain their building in good condition.

8 The single storey laundry is proposed in masonry walls on the boundary with a painted render finish. Only a small portion of it would be seen above the fence line as the boundary wall is only 2.4 m high and it faces a blank brick wall of Ms Steele-Park’s. I also have no evidence about loss of summer cooling breezes. It seems to me a single storey laundry that adds only about one and a half metres to the width of an existing 2-storey house, and projects only about 600 mm above a boundary fence, could not cause such obstruction of breezes when there are no windows directly adjacent in Ms Steele-Park’s house.

9 I agree with Mr Ball’s further assessment of the amended drawings in Exhibit 3 that the proposal as it is now put forward is acceptable.

10 Therefore the orders of the Court by consent of the parties is that:

1. The appeal is upheld.

2. Development consent No. DA-715/2004 granted on 22 July 2005 for alterations and additions including an addition to the second storey to the existing dwelling at 84 Rawson Avenue, Queens Park, (“Consent”) be modified pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (NSW) in accordance with Annexure “A” hereto.

3. The Exhibits are retained on the Court’s file except for Exhibit 1.

4. It is noted the parties have agreed that there be no order as to costs.

___________________

K G Hoffman
Commissioner of the Court
Gbv/rjs