Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129

Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129

The amended proposal in exhibit F addressed the Council's contentions. The Court accepted that existing roof top terraces were in the vicinity of the site, accepted the planning experts' agreement that amended design measures addressed view and privacy impacts, and found the proposal consistent with the LEP 2012 height development standard because the overall height at the highest point was 8.55m when assessed by reference to existing ground levels derived from the development application site survey contours. Consent could therefore be granted subject to conditions.

Jurisdiction
Australia
Judgment Date
08 April 2016
Procedural Posture
Class 1 Appeal Pursuant to S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Hearing Held Forthwith After Mandatory Conciliation Was Terminated; Consent Orders Made
Outcome
Appeal upheld by consent; modification application approved subject to conditions.
Legal Topics
['roof Top Terrace' 'view Impacts' 'privacy Impacts' 'building Height' 'consent Orders' 'development Control Plans']
['planning and Environment' 'development Consent Modification'] ['roof Top Terrace' 'view Impacts' 'privacy Impacts' 'building Height' 'consent Orders' 'development Control Plans']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Pursuant to S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Hearing Held Forthwith After Mandatory Conciliation Was Terminated; Consent Orders Made

Legal Issues

  1. 1 ['Whether Modification Application No. DA-344/2014/A to add a roof top terrace and access stair should be approved.' 'Whether the amended proposal resulted in excessive height or breached the height development standard.' 'Whether roof top terraces were characteristic in the vicinity or adjacent to the site.' 'Whether the proposed roof top terrace would cause unacceptable view, visual privacy or acoustic privacy impacts on neighbouring properties.' 'Whether the size of the proposed roof top terrace was excessive.']

Ratio Decidendi

The amended proposal in exhibit F addressed the Council's contentions. The Court accepted that existing roof top terraces were in the vicinity of the site, accepted the planning experts' agreement that amended design measures addressed view and privacy impacts, and found the proposal consistent with the LEP 2012 height development standard because the overall height at the highest point was 8.55m when assessed by reference to existing ground levels derived from the development application site survey contours. Consent could therefore be granted subject to conditions.

Court Disposition

Appeal upheld by consent; modification application approved subject to conditions.

Orders

  • ['By consent, the appeal is upheld.' 'Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure "A".' 'The exhibits, other than exhibits 2 and F, are returned.']