Vostoganis v Hurstville City Council

[2004] NSWLEC 736

Land and Environment Court

of New South Wales

CITATION:	Vostoganis v Hurstville City Council [2004] NSWLEC 736
PARTIES:	APPLICANT J Vostoganis RESPONDENT Hurstville City Council
FILE NUMBER(S):	10790 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Application :-
LEGISLATION CITED:
CASES CITED:	Tenacity Consulting v Manly Council [2004] NSWLEC 140
DATES OF HEARING:	20 September 2004
EX TEMPORE JUDGMENT DATE :	09/20/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M Fraser, barrister RESPONDENT Mr P Rigg, solicitor Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

20 September 2004

10790 of 2004 J Vostoganis v Hurstville City Council

JUDGMENT

1 The matter that comes before me today is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Hurstville Council (the council) on 2 June 2004 of Development Application 2003/0881 by Mr J Vostoganis of 56 Moons Avenue, Lugarno to conduct extensive renovations and extensions to the property located at that site which is Lot B DP 411028.

2 I record that, in the resolution of this matter, I have had the assistance of a Court appointed town planning expert, Mr G Shiels, who provided a number of constructive suggestions in the body of his report to enable some modifications to the plans.

3 As a consequence of the view of the property and of the neighbouring properties to the south and to the south-east – whose residents had expressed concerns about a number of impacts on them of the proposal, I raised a number of further issues of concerns with the parties as it was my opinion that the proposal was capable of being given a consent with modifications that did not go to major substance but which would otherwise have significant ameliorative values for those neighbours.

4 As a consequence of those matters and further discussions relating to them between Mr Shiels and the representatives of the applicants and of the council, it is agreed that a far greater degree of acceptability, from the perspective of the resident objectors (whilst not entirely satisfying them), would be achieved if changes were made. I have considered the proposed changes that have been noted on exhibit B which embody responses to matters that Mr Shiels and I, in differing aspects, raised with the parties for their consideration.

5 All of those will have major ameliorative effects.

6 The pulling back to the south of the proposed leading edge of the carport roof at its most western point together with a cutting away of that edge towards the entrance foyer will have significant beneficial impacts on improving the views to the north over the development and to the north-west into areas that will otherwise be opened up as a consequence of the removal of the existing garage on the site.

7 I am satisfied the proposed development (as proposed to be amended reflecting Exhibit B - including the red line on exhibit B, that is a line of the proposed roof line running north-west south-east rather than a sawtooth line), is, in all relevant respects, a height and other control complying development. I adopt the view sharing tests set out in the decision of Roseth SC in Tenacity Consulting v Manly Council [2004] NSWLEC 140 and indicate that the revised roof line depicted in Exhibit B is satisfactory against those tests. That will satisfy the relevant test that, even for compliant designs, a better design could achieve a more acceptable outcome for those otherwise concerned with view sharing issues.

8 With respect to the issue of the eastern end of the roof area at the entrance level, I am satisfied that the additional proposed balustrading, which will effectively make the eastern end and portion of the north-eastern end of that balcony area, which would otherwise have been an open, useable, trafficable deck for both people and vehicles, non-trafficable to both vehicles and to pedestrians.

9 As a consequence I am satisfied that that will ameliorate significantly the concerns that were expressed by the neighbours of persons on that area using that area for looking up into their private open spaces and private living areas, and also obviate the possibility of that area being used as a future large-scale entertaining area.

10 The balustrading will now follow the line marked on exhibit B. As a consequence of that, I am of the opinion that the concerns of the neighbours - which otherwise had a degree of validity - can be appropriately resolved, particularly if there is incorporated in the conditions of consent, as agreed to by the applicants, a condition that there be no floodlighting of that area and that the area of lighting will be confined to under carport roof lighting or light spill out from the glassed areas of the foyer.

11 The incorporation of a modest privacy screen along the southern edge of the beginning of the pathway to the open steps down the southern boundary will provide a degree of additional protection for the neighbours immediately to the south and will remove any possible reliance for privacy on the vegetation that is currently growing on those neighbours' property.

12 I am satisfied that the suggestions which Mr Shiels has made concerning the lowering of roof lines and the lowering that consequently occurs in the ceiling heights of the living areas of the revised dwelling, together with the sloping of the foyer roof will also provide appropriate and significant degrees of amelioration of the concerns of the neighbours immediately to the south and to the south-east.

13 As a consequence, I am satisfied that there is no reason why amended plans, reflecting the matters that are contained in exhibit B with the addition of the privacy screen and conditions as to lighting as discussed, are not capable of being given consent.

14 I therefore direct the applicants to file and serve, after consultation with the council, revised plans. I direct that the matter be sent to call over on Tuesday 19 October 2004. I grant liberty to re-list before me on two days notice at 9am if required. Subject to the filing of revised plans, which are agreed by the council and are in accordance with the matters contained in exhibit B together with the incorporation of the privacy screen, and the electronic filing of acceptable conditions agreed to by the applicants and the council, I will make orders giving effect to the consent in chambers and I will vacate the call over date on 19 October.

Commissioner of the Court