Messina v Randwick City Council [2005] NSWLEC 116

Messina v Randwick City Council [2005] NSWLEC 116

The Court found that, while the roof deck and parapet as constructed exceeded approved heights, privacy concerns could be addressed by alternative measures, such as fixed planter boxes. As a result, it was not reasonable to require full demolition but appropriate to modify and lower elements of the construction to mitigate impacts. Conditions 17 and 18 are to be replaced and an additional condition imposed, as agreed by the parties, with a substituted order under s 121B. Costs are awarded to the respondent for on-site attendances and proceedings related to the Order.

Parties
Applicant: D & F Messina; Respondent: Randwick City Council
Jurisdiction
Australia
Judgment Date
16 March 2005
Procedural Posture
Appeal / Judgment After Hearing
Outcome
Appeals allowed by consent with varied and substituted orders.
Legal Topics
Development Consent, Modification Application, Order for Demolition, Deletion and Alteration of Conditions of Consent, Streetscape and Privacy Impacts, Building Compliance
Planning and Environment Law Development Consent Modification Application Order for Demolition Deletion and Alteration of Conditions of Consent Streetscape and Privacy Impacts Building Compliance

Case Brief

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Parties

D & F Messina

Applicant

Randwick City Council

Respondent

Procedural Posture

Appeal / Judgment After Hearing

Legal Issues

  1. 1 Whether Conditions 17 and 18 of Consent 01/80136/GA/A should be deleted or replaced
  2. 2 Whether s 121B Order for demolition should be maintained or varied
  3. 3 Whether the constructed development breaches planning controls regarding height, privacy, and streetscape

Ratio Decidendi

The Court found that, while the roof deck and parapet as constructed exceeded approved heights, privacy concerns could be addressed by alternative measures, such as fixed planter boxes. As a result, it was not reasonable to require full demolition but appropriate to modify and lower elements of the construction to mitigate impacts. Conditions 17 and 18 are to be replaced and an additional condition imposed, as agreed by the parties, with a substituted order under s 121B. Costs are awarded to the respondent for on-site attendances and proceedings related to the Order.

Court Disposition

Appeals allowed by consent with varied and substituted orders.

Orders

  • Appeal No. 11408 of 2004 upheld subject to replacement of Condition 17 (per Exhibit H), replacement of Condition 18 (per Exhibit F), and imposition of Additional Condition 19 (per Exhibit G).
  • Exhibits 4, 5, 6, A, F, G, and H to be retained by the Court.