Evanel Pty Ltd & Ors v Woollahra Municipal Council [2006] NSWLEC 712

Evanel Pty Ltd & Ors v Woollahra Municipal Council [2006] NSWLEC 712

The proposed modifications were reasonable because the 260 mm increase in landscaping height caused only minimal intrusion into otherwise maintained harbour, bridge and Opera House views and improved privacy; the two smaller umbrellas with specified dimensions and location were consistent with the relevant view corridors; the approximately 100 mm parapet increase had only a marginal effect on harbour views; and replacing metal cladding with gravel-type material and vegetation would keep the southern roof area non-trafficable while improving appearance and reducing nuisance.

Jurisdiction
Australia
Judgment Date
13 November 2006
Procedural Posture
Appeal Against Council's Refusal to Allow S 96 Modifications to a Development Consent for Alterations to a Dwelling / Judgment Following Section 34 Conference and Further Submissions
Outcome
Appeal upheld
Legal Topics
['s 96 Modification' 'development Consent Conditions' 'rooftop Terrace Landscaping' 'view Loss' 'privacy' 'shade Structures' 'non Trafficable Roof Terrace Area']
['planning and Environment' 'development Consent Modification'] ['s 96 Modification' 'development Consent Conditions' 'rooftop Terrace Landscaping' 'view Loss' 'privacy' 'shade Structures' 'non Trafficable Roof Terrace Area']

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Procedural Posture

Appeal Against Council's Refusal to Allow S 96 Modifications to a Development Consent for Alterations to a Dwelling / Judgment Following Section 34 Conference and Further Submissions

Legal Issues

  1. 1 ['Whether conditions 51, 52, 54, 55 and 57 of the development consent should be modified.' 'Whether increased rooftop terrace planting height would unreasonably affect neighbouring harbour, bridge and Opera House views.' 'Whether shade umbrellas on the rooftop terrace should be permitted with specified size, height and location restrictions.' 'Whether the southern part of the roof terrace could be treated with gravel-type material and vegetation rather than metal cladding while remaining non-trafficable.' 'Whether the increased parapet height and associated landscaping on the southern roof terrace should be maintained.']

Ratio Decidendi

The proposed modifications were reasonable because the 260 mm increase in landscaping height caused only minimal intrusion into otherwise maintained harbour, bridge and Opera House views and improved privacy; the two smaller umbrellas with specified dimensions and location were consistent with the relevant view corridors; the approximately 100 mm parapet increase had only a marginal effect on harbour views; and replacing metal cladding with gravel-type material and vegetation would keep the southern roof area non-trafficable while improving appearance and reducing nuisance.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' "The conditions of consent for DA 474/2003/2 are amended in accordance with Annexure 'A'."]