Gea Gea v Bankstown City Council [2009] NSWLEC 1405

Gea Gea v Bankstown City Council [2009] NSWLEC 1405

The balcony extension was acceptable because the upper floor dwelling reasonably required usable private open space directly accessible from its living area, the existing balcony width limited that use, and with conditions requiring privacy and acoustic screening the extension would limit overlooking and mitigate noise impacts to an acceptable level. The proposal met the relevant objectives and performance criteria for Visual and Acoustic Privacy and Open Space in Bankstown Development Control Plan 2005 and was not uncharacteristic of the area.

Jurisdiction
Australia
Judgment Date
02 December 2009
Procedural Posture
Appeal Against the Refusal by Bankstown City Council of Part of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent / Judgment After Hearing
Outcome
Appeal upheld; application under s 96 of the Environmental Planning and Assessment Act 1979 approved and consent modified.
Legal Topics
['modification of Development Consent' 'upper Floor Balcony Extension' 'private Open Space' 'visual and Acoustic Privacy' 'character of the Area' 'development Control Plan Objectives and Performance Criteria']
['planning and Environment Law' 'development Consent'] ['modification of Development Consent' 'upper Floor Balcony Extension' 'private Open Space' 'visual and Acoustic Privacy' 'character of the Area' 'development Control Plan Objectives and Performance Criteria']

Case Brief

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Procedural Posture

Appeal Against the Refusal by Bankstown City Council of Part of an Application Under S 96 of the Environmental Planning and Assessment Act 1979 to Modify Development Consent / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed balcony extension would result in adverse visual and acoustic privacy impacts on adjoining properties.' 'Whether the proposed balcony extension provided reasonable private open space for the upper floor dwelling.' 'Whether the upper level balcony extension was uncharacteristic of the area.' 'Whether the proposal met the objectives and performance criteria for Visual and Acoustic Privacy and Open Space in Bankstown Development Control Plan 2005.']

Ratio Decidendi

The balcony extension was acceptable because the upper floor dwelling reasonably required usable private open space directly accessible from its living area, the existing balcony width limited that use, and with conditions requiring privacy and acoustic screening the extension would limit overlooking and mitigate noise impacts to an acceptable level. The proposal met the relevant objectives and performance criteria for Visual and Acoustic Privacy and Open Space in Bankstown Development Control Plan 2005 and was not uncharacteristic of the area.

Court Disposition

Appeal upheld; application under s 96 of the Environmental Planning and Assessment Act 1979 approved and consent modified.

Orders

  • ['The appeal is upheld.' 'The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (DA/524-2006) for alterations and additions to a dual occupancy development at 119 Hillcrest Avenue, Greenacre, is approved. The consent is modified as set out in Annexure A.' 'The...