Gilkes v Sutherland Shire Council [2008] NSWLEC 1256

Gilkes v Sutherland Shire Council [2008] NSWLEC 1256

The agreed alternative privacy screen would sufficiently protect the privacy of the lower bedrooms and rear yard of No. 26, would not block water views, and would have little visual impact. Given the locality already involved mutual overlooking and the additional conditions were appropriate to protect visual and acoustic privacy, the modification application should be granted with the agreed screen, the existing balustrade, the applicant's no-servery condition, and the respondent's conditions requiring the existing windows and fly-screens to remain and prohibiting tables and chairs on the small rear deck extension.

Jurisdiction
Australia
Judgment Date
24 June 2008
Procedural Posture
Class 1 Appeal Concerning a Condition of Development Consent and Modification Application Ma07/0354 in Relation to Da03/1823 / On Site Hearing Following a Section 34 Conciliation Conference; Ex Tempore Judgment
Outcome
Appeal upheld; modification application MA07/0354 granted in regard to DA03/1823 subject to amended and additional conditions.
Legal Topics
['modification Application' 'variation of Consent Condition' 'privacy' 'overshadowing and Daylight Access' 'bulk and Visual Impact' 'residential Amenity']
['planning and Environment' 'development Consent Modification'] ['modification Application' 'variation of Consent Condition' 'privacy' 'overshadowing and Daylight Access' 'bulk and Visual Impact' 'residential Amenity']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning a Condition of Development Consent and Modification Application Ma07/0354 in Relation to Da03/1823 / On Site Hearing Following a Section 34 Conciliation Conference; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the condition requiring a 2 m high masonry and translucent glass privacy screen on the southern edge of the elevated terrace should be deleted and replaced with an alternative privacy screen adjacent to the boundary.' 'Whether conditions should be imposed requiring the existing kitchen windows and fly-screens to remain and prohibiting tables and chairs on the small rear deck extension.' 'Whether the proposed alternative privacy screen adequately addressed visual privacy, acoustic privacy, daylight access, bulk and visual intrusion concerns affecting No. 26 North East Crescent.']

Ratio Decidendi

The agreed alternative privacy screen would sufficiently protect the privacy of the lower bedrooms and rear yard of No. 26, would not block water views, and would have little visual impact. Given the locality already involved mutual overlooking and the additional conditions were appropriate to protect visual and acoustic privacy, the modification application should be granted with the agreed screen, the existing balustrade, the applicant's no-servery condition, and the respondent's conditions requiring the existing windows and fly-screens to remain and prohibiting tables and chairs on the small rear deck extension.

Court Disposition

Appeal upheld; modification application MA07/0354 granted in regard to DA03/1823 subject to amended and additional conditions.

Orders

  • ['The appeal is upheld.' "Modification application MA07/0354 is granted in regard to DA03/1823 for premises at 22-24 North East Crescent, Lilli Pilli subject to Condition 1, having inserted the agreed condition in Exhibit A plus the conditions contained in Exhibit 1 as set out in Annexure 'A'." 'The exhibits be...