Development Application :- s96 application value of precedent
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
03/03/2004
DATE OF JUDGMENT:
03/16/2004
LEGAL REPRESENTATIVES:
Mr A Pickles, barrister Mr M Staunton, solicitor
JUDGMENT:
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IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10004 of 2004
Roseth SC
16 March 2004
Applicant
v
Respondent
Judgment
The application
1 This is an appeal against the deemed refusal by Waverley Council (the council) of an application under s96 of the Environmental Planning and Assessment Act 1979 to amend development consent 156/01 by varying certain windows and adding a new roof terrace, plunge pool and privacy screen. The council has no objection to the variation of windows and the plunge pool. It objects to the new roof terrace and privacy screen.
2 The address of the property is 441 Bronte Road, Bronte. It is the eastern half of a semi-detached pair of dwellings that have been designed and are being constructed in unison. However, the s96 application for the roof terrace is only for the eastern half. The terrace is on a flat section of the roof. There is a similar flat roof on the western half of the pair, though there is no proposal for a roof terrace on it. An external flight of stairs leads to the roof terrace. The terrace has a planting bed around the trafficable part, so as to reduce overlooking. Planting is proposed to 1m high.
3 The Court heard the evidence of six objectors. Mr D Maxwell, who lives at 43 Gardyne Street to the rear of the site, is concerned about noise and erosion. Mr E Ellison, who lives at 435 Bronte Road to the west of the site, is concerned about overlooking, noise and the precedent effect of an approval for a roof terrace. In his opinion, roof terraces are out of character with the area. Mr M McKenzie, who lives at 437 Bronte Road to the west of the site, is concerned about overlooking, noise and precedent. Mr P Craig, who lives at 443 Bronte Road to the east of the site, is concerned about overlooking of bedrooms, bathroom and rear yard. Mrs S Bruns, who lives at 445 Bronte Road to the east of the site, is concerned about overlooking. Mr S Vesper, who lives at 447 Bronte Road, is concerned about overlooking of his rear yard and bedrooms as well as about noise.
4 The applicant’s planning expert was Mr P Sarlos, an architect planner, while the council’s was Mr P Anzelotti, a planner with the council. Their reports were tendered, though they were not required to give oral evidence. The major difference between them was that Mr Anzelotti considered the objectors’ concern about privacy valid, while Mr Sarlos thought that the extent of overlooking due…
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.
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Details
AGLC
Super Studio v Waverley Council [2004] NSWLEC 91
Case
[2004] NSWLEC 91
Decision Date
CaseChat Overview and Summary
The case of Super Studio v Waverley Council before the Land and Environment Court of New South Wales involves an appeal by Super Studio, represented by Eva Marie Prineas, against the deemed refusal by Waverley Council of a development application under section 96 of the Environmental Planning and Assessment Act 1979. The application seeks to amend the development consent 156/01 to alter certain windows, add a new roof terrace, plunge pool, and privacy screen. The council has no objections to the variation of windows and the plunge pool but objects to the new roof terrace and privacy screen. The property in question is located at 441 Bronte Road, Bronte, which is the eastern half of a semi-detached pair of dwellings currently under construction.
The primary legal issues before the court were whether the proposed changes to the development consent should be approved, specifically the addition of a roof terrace and a privacy screen. The applicant argued that the proposed roof terrace would not significantly impact the surrounding properties or the character of the area. The council and several objectors argued that the roof terrace would cause significant overlooking and set an undesirable precedent for similar developments in the area. The court also considered the potential for increased noise due to the proposed terrace.
In delivering the judgment, the court found that while the addition of a roof terrace would introduce a new element to the area, its impact should be assessed with heightened sensitivity given the existing differences in the building's appearance and bulk compared to neighbouring properties. The court concluded that the potential for increased noise was not a sufficient reason to refuse the application. However, the primary concern was the additional overlooking from the proposed roof terrace, particularly for the property at 447 Bronte Road, where the rear yard and two bedroom windows were clearly visible from the terrace. The court held that compounding the approved impact by adding another disturbing element would not be reasonable, thus the roof terrace was excluded from the approved proposal. Additionally, the proposed privacy screen was also excluded due to objections from the council and the property owner.
The court allowed the appeal in part, granting the application with the exclusion of the roof terrace and privacy screen and subject to certain conditions. The exhibits were returned except for two specific ones. This decision balanced the applicant's rights to develop the property with the need to protect the interests of neighbouring properties and the character of the area.