Turner v Camden C - [2006] NSWLEC 560

Land and Environment Court

of New South Wales

CITATION: Turner v Camden C [2006] NSWLEC 560

PARTIES:
APPLICANT
Maryann Turner
RESPONDENT
Camden Council

FILE NUMBER(S): 10210 of 2006

CORAM: Murrell C

KEY ISSUES: Appeal :- s 96 modification application, privacy and overlooking, adjoining properties, drainage.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Development Control Plan No. 58

CASES CITED: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240

DATES OF HEARING: 08/08/2006 and 11/08/2006

EX TEMPORE JUDGMENT DATE: 08/11/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr P. Tomasetti, barrister
RESPONDENT
Mr A. J. J. Thompson, barrister
Instructed by
Ritchie and Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

11 August 2006

10210 of 2006 Maryann Turner v Camden Council
JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 This is an extempore judgment for the matter that has come before me to modify a consent issued by the council. The appeal is under s 96(6) of the Environmental Planning and Assessment Act (the Act) against Camden Council’s partial refusal of an application to modify a consent issued by the council in April 2004.

2 The history of the matter is that there was a dwelling house was approved on the subject site known as 26 River Road, Elderslie, and it transpired that the building was erected some 460 mm above the approved level. As such, a stop work notice was issued and the applicant submitted a s 96 modification application containing a number of matters.

3 The council approved various amendments however, it did not approve of matters that are currently the subject of this appeal, in particular, that relate to conditions 9 and 10. Condition 9 requires the western boundary fence to be erected on a 460 mm masonry base with a 1.8 m fence above, to protect the privacy of adjoining properties to the west. Condition 10 imposed by the council is the requirement to reduce the floor to ceiling height of the upper floor to 2.4 m, whereas the proposal provides for a 2.7 m floor to ceiling height.

4 The Court met on site initially some months ago and heard the evidence of the experts and also the resident objectors. As a 96 application it could not be considered as an on-site hearing and the council did not give delegation for a binding s 34 conference. As such, the Court then proceeded to have a second site inspection because of matters that were discussed at the first site view and then proceeded to Campbelltown Court this week to complete the hearing.

5 The parties had the benefit of provided experts in respect of their cases. For the respondent, Mr Cary McIntyre, who is the development manager at Camden Council, provided evidence for the council in the capacity of an engineer and a town planner. For the applicant Mr Laurie Winacott, town planner, Mr Turner, engineer, Mrs Turner, landscape architect all provided evidence to the Court, as…

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

Case: [2006] NSWLEC 560
Decision Date: 11/08/2006

CaseChat Overview and Summary

In this case, Maryann Turner appeals against Camden Council’s refusal to modify a consent issued under the Environmental Planning and Assessment Act 1979. The appeal relates to the height of the western boundary fence and the floor-to-ceiling height of the upper floor of a dwelling house at 26 River Road, Elderslie. The council had approved various amendments to the original consent but had not approved the modifications proposed by the applicant. The applicant sought to modify the consent to allow for a lower western boundary fence and a higher upper floor ceiling. The council argued that these modifications would adversely affect the privacy and amenity of adjoining properties. The Court undertook two site inspections and heard evidence from experts and residents of adjoining properties.

The Court found that the cumulative impacts of the proposed modifications must be considered in assessing the merits of the s 96 application. The Court held that the Development Control Plan No. 58, which contains provisions relating to the height of residential dwellings, does not automatically grant approval if the proposed development falls within the guidelines. Each application must be assessed on its merits, taking into account the likely impact on adjoining properties, including sunlight access and privacy. The Court found that the proposed modifications would not unreasonably impact the privacy of adjoining properties and granted the appeal in part. The Court ordered that the application to modify the consent be approved with certain conditions, including the erection of a 1.8 m lapped and capped fence between the subject property and the property at No. 28, the lowering of the deck level that adjoins the rear of the dwelling house, and the installation of lattice screens on the water tanks to maintain reasonable privacy and amenity for adjoining properties.

The Court orders that the appeal under s96(6) of the Environmental Planning and Assessment Act for the property known as 26 River Road Elderslie is upheld in part and that the application to modify the consent granted by Camden Council on 27 April 2004 is approved in accordance with the consolidated conditions contained at annexure ‘A’.

Orders