Buckett v Waverley Council [2008] NSWLEC 95

Buckett v Waverley Council [2008] NSWLEC 95

Condition 2(b) could be deleted because, on the approved plans, the adjoining bedroom at 21 Bulga Road was at a relatively acute angle from the subject window, around 2 m below it and around 13 to 15 m away, and the private open space was even more difficult to view; the requirements of cl 5.6 of DCP 2006 were satisfactorily addressed. Condition 2(d) could be deleted because the bridge was only an access walkway, not a deck or balcony where people would congregate, and an obscure screen there would also deny limited Pacific Ocean views from 17 Bulga Road.

Jurisdiction
Australia
Judgment Date
28 February 2008
Procedural Posture
Appeal Against Refusal of an Application to Modify Development Consent / S 34 Preliminary Conference; Parties Did Not Reach Agreement Under S 34(3)(a) But Consented to the Commissioner Disposing of the Proceedings Without Further Hearing Under S 34(3)(b)(ii)
Outcome
Appeal upheld
Legal Topics
['modification of Development Consent' 'residential Alterations and Additions' 'visual Privacy' 'acoustic Privacy' 'development Control Plan Controls']
['planning and Environment Law'] ['modification of Development Consent' 'residential Alterations and Additions' 'visual Privacy' 'acoustic Privacy' 'development Control Plan Controls']

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Procedural Posture

Appeal Against Refusal of an Application to Modify Development Consent / S 34 Preliminary Conference; Parties Did Not Reach Agreement Under S 34(3)(a) But Consented to the Commissioner Disposing of the Proceedings Without Further Hearing Under S 34(3)(b)(ii)

Legal Issues

  1. 1 ['Whether condition 2(b), requiring a minimum sill height of 1.5 m for the attic-level eastern elevation window, should be deleted from the development consent.' 'Whether condition 2(d), requiring an obscure glass privacy screen to the bridge in lieu of the planter, should be deleted from the development consent.' 'Whether deletion of the conditions would cause unacceptable visual or acoustic privacy impacts for 21 Bulga Road.']

Ratio Decidendi

Condition 2(b) could be deleted because, on the approved plans, the adjoining bedroom at 21 Bulga Road was at a relatively acute angle from the subject window, around 2 m below it and around 13 to 15 m away, and the private open space was even more difficult to view; the requirements of cl 5.6 of DCP 2006 were satisfactorily addressed. Condition 2(d) could be deleted because the bridge was only an access walkway, not a deck or balcony where people would congregate, and an obscure screen there would also deny limited Pacific Ocean views from 17 Bulga Road.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'The application to modify the approval of Development Application No 546/06 for alterations and additions to an existing detached dwelling house at 19 Bulga Road Dover Heights is approved by the deletion of condition 2(b) and condition 2(d).' 'The exhibits are returned.']