Magro & Anor v City of Canada Bay [2012] NSWLEC 1082

Magro & Anor v City of Canada Bay [2012] NSWLEC 1082

The amended proposal produced an overall better planning outcome than the original approved development: deletion of the western balcony reduced bulk, scale and acoustic and visual privacy impacts to the west and southwest; the increased eastern setback achieved compliance with the height plane control; the additional visual impact of the eastern balcony was marginal compared with the approved dwelling; planter boxes, the extended side wall and setback adequately addressed visual privacy; and recommended acoustic treatments would reduce acoustic impacts of normal use. Although the eastern balcony exceeded the 1.8m DCP depth control, that non-compliance was not sufficient to warrant refusal.

Jurisdiction
Australia
Judgment Date
07 March 2012
Procedural Posture
Class 1 Development Application Appeal / Hearing After No Agreement Was Reached at a Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Development Application No. 405/2011 as amended on 5 March 2012 approved subject to revised plans and conditions.
Legal Topics
['development Application for First Floor Balcony' 'bulk, Scale and Visual Impact' 'building Height Plane' 'visual and Acoustic Privacy' 'development Control Plan Controls']
['planning and Environment Law' 'development Consent'] ['development Application for First Floor Balcony' 'bulk, Scale and Visual Impact' 'building Height Plane' 'visual and Acoustic Privacy' 'development Control Plan Controls']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Hearing After No Agreement Was Reached at a Mandatory Conciliation Conference Under S 34 AA of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the amended first floor balcony proposal created unacceptable bulk, scale and visual impact on adjoining properties.' 'Whether the proposal complied with the building height plane control.' 'Whether the proposal caused unacceptable visual and acoustic privacy impacts.' 'Whether non-compliance with the Development Control Plan control for upper storey balcony depth warranted refusal.']

Ratio Decidendi

The amended proposal produced an overall better planning outcome than the original approved development: deletion of the western balcony reduced bulk, scale and acoustic and visual privacy impacts to the west and southwest; the increased eastern setback achieved compliance with the height plane control; the additional visual impact of the eastern balcony was marginal compared with the approved dwelling; planter boxes, the extended side wall and setback adequately addressed visual privacy; and recommended acoustic treatments would reduce acoustic impacts of normal use. Although the eastern balcony exceeded the 1.8m DCP depth control, that non-compliance was not sufficient to warrant refusal.

Court Disposition

Appeal upheld; Development Application No. 405/2011 as amended on 5 March 2012 approved subject to revised plans and conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No. 405/2011 for a first floor balcony at the rear of their dwelling at 43 Rickard Street Five Dock as amended on 5 March 2012 is approved.' 'The applicants are to prepare detailed plans showing the changes to the first floor plan, eastern, western and southern...