Cominos v Newcastle City Council [2008] NSWLEC 1316

Cominos v Newcastle City Council [2008] NSWLEC 1316

The modification was acceptable because the bedroom extension complied with the relevant numerical requirements for site coverage, building envelope, setbacks and fences, remained within the building envelope contemplated by the planning controls, did not maximise that envelope, and created no unacceptable impacts on privacy, solar access, existing views or outlooks. Condition 40 should require three days notice, good and workmanlike rendering, and completion before the final Occupation Certificate or by 30 September 2008, but need not require a qualified tradesperson.

Jurisdiction
Australia
Judgment Date
20 June 2008
Procedural Posture
Appeal Against Refusal of an Application to Modify Development Consent No. 05/0776 for Construction of a Dwelling / Ex Tempore Judgment After a Terminated S 34 Conciliation Conference and Further on Site Hearing
Outcome
Appeal upheld; application to modify Development Consent No. 05/0776 approved subject to modifications to conditions 1.1 and 40.
Legal Topics
['residential Development' 'view Loss' 'bulk and Scale' 'overshadowing' 'privacy' 'development Control Plans' 'consent Conditions']
['planning and Environment' 'development Consent Modification'] ['residential Development' 'view Loss' 'bulk and Scale' 'overshadowing' 'privacy' 'development Control Plans' 'consent Conditions']

Case Brief

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Procedural Posture

Appeal Against Refusal of an Application to Modify Development Consent No. 05/0776 for Construction of a Dwelling / Ex Tempore Judgment After a Terminated S 34 Conciliation Conference and Further on Site Hearing

Legal Issues

  1. 1 ['Whether the proposed 3.5 m x 4.5 m first floor bedroom extension should be approved as a modification to Development Consent No. 05/0776.' 'Whether the bedroom extension caused unacceptable impacts by loss of outlook or view, bulk and scale, overshadowing, or loss of privacy.' 'Whether condition 40 should specify notice, workmanship requirements and a time limit for rendering exposed masonry retaining walls and fences.']

Ratio Decidendi

The modification was acceptable because the bedroom extension complied with the relevant numerical requirements for site coverage, building envelope, setbacks and fences, remained within the building envelope contemplated by the planning controls, did not maximise that envelope, and created no unacceptable impacts on privacy, solar access, existing views or outlooks. Condition 40 should require three days notice, good and workmanlike rendering, and completion before the final Occupation Certificate or by 30 September 2008, but need not require a qualified tradesperson.

Court Disposition

Appeal upheld; application to modify Development Consent No. 05/0776 approved subject to modifications to conditions 1.1 and 40.

Orders

  • ['The appeal is upheld.' 'The application to modify Development Consent No. 05/0776 for the construction of a dwelling at 7/230 Scenic Drive, Merewether Heights is approved by the specified modifications.' 'Condition 1.1 is deleted and replaced with a condition requiring the development to be carried out strictly in...