Scoufis v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scoufis v Sutherland Shire Council [2012] NSWLEC 1163

Hearing dates:

13 June 2012

Decision date:

15 June 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is allowed.

(2)The s 96 application to modify development consent MA11/0205 for a dwelling house at 36 Sylvania Road Sylvania is approved subject to the conditions in Annexure A.

(3)The exhibits may be returned except 3, 4, A and B.

Catchwords:

Development modification - Dwelling house, extent of upper level terrace, privacy, amenity impacts.

Legislation Cited:

Sutherland Shire Local Environmental Plan 2006

Cases Cited:

Pafburn v North Sydney Council [2005] NSWLEC 444
Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55
Super Studio v Waverley Council [2004] NSWLEC 91

Category:

Principal judgment

Parties:

William and Christine Scoufis (Applicants)

Sutherland Shire Council (Respondent)

Representation:

Mr R O'Gorman Hughes (Applicant)

Ms J Amy (Respondent)

File Number(s):

10211 of 2012

Judgment

Background

1. This appeal was lodged against council's refusal of a s 96 application to modify a development consent granted for a large 2/3 storey dwelling house located at 36 Sylvania Road, Sylvania.

1. The appeal was set for a s 34AA hearing and during the conciliation phase, the parties reached agreement on many detailing issues. However, as no agreement was reached on the substantive issue of the rooftop terrace, the s 34 conference was terminated and the matter proceeded for determination.

1. Since the original consent was granted in April 2004, a number of modifications have been approved and the dwelling house substantially completed. However, the construction of several aspects has led to the subject s96 application to regularise some unapproved works.

1. According to the statement of facts, the scope of this s 96 application is summarised as follows:

• Delete conditions relating to windows on the first floor family room, additional vehicle manoeuvring area, non-trafficable ground floor roof and restriction on the use of the eastern part of the basement garage for accommodation of vehicles and not for any entertainment or habitable use.
• Re-allocate the lift motor and plant rooms to a gym and laundry respectively (works as executed and in-situ). Therefore increasing the gross floor area by 26 sq m;
• Replacing motorised louvres to the lift and plant room (now proposed as a gymnasium and laundry) with clear glazing (works as executed and in-situ);
• Increase the height of privacy screen to the southern side of the ground floor verandah at the rear of the dwelling with full height clear glass to function as privacy screen (works as executed and in-situ);
• Reduced width of stair well to form powder room on ground floor and storeroom on first floor (works as executed and in-situ);
• Sky-light deleted from above first floor storage room (works as executed).
• Increasing the internal length of the building by 1 m and 1.51 m on the northern and southern halves of the dwelling respectively (works as executed and in-situ). Therefore increasing the gross floor area by 23.78 sq m as…