Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1084

Gergely & Pinter Architects Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1084

Although the proposed development complied with the LEP height control and view loss from internal living areas was minor, the addition would cause moderate view loss from important open space areas of 1 Fisher Avenue and 22 Wentworth Road, including loss of water and land-water interface views. The impact was unreasonable given the size of the 164.65sqm additional living area, the dwelling's non-compliance with the FSR control, the importance of views from the heritage item setting at 1 Fisher Avenue, and the absence of analysis showing that design changes could reduce view loss. The proposal therefore failed to encourage equitable view sharing and the development application was refused.

Jurisdiction
Australia
Judgment Date
17 May 2013
Procedural Posture
Class 1 Appeal Under S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing After S 34 AA Conciliation Conference Was Terminated
Outcome
Appeal dismissed and development application refused.
Legal Topics
['development Application for Alterations and Additions' 'view Sharing' 'visual Privacy' 'floor Space Ratio and Storey Controls' 'heritage Item Setting' 'woollahra Local Environmental Plan 1995 and Woollahra Residential Development Control Plan 2003']
['environmental Planning and Development Law' 'local Government Planning Controls'] ['development Application for Alterations and Additions' 'view Sharing' 'visual Privacy' 'floor Space Ratio and Storey Controls' 'heritage Item Setting' 'woollahra Local Environmental Plan 1995 and Woollahra Residential Development Control Plan 2003']

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Procedural Posture

Class 1 Appeal Under S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing After S 34 AA Conciliation Conference Was Terminated

Legal Issues

  1. 1 ['Whether the proposed additional storey would unreasonably impact views from nearby properties, particularly 1 Fisher Avenue and 22 Wentworth Road.' 'Whether the proposal achieved acceptable view sharing having regard to compliance with height controls and non-compliance with FSR and storey controls.' 'Whether privacy impacts on 6 Fisher Avenue justified refusal.']

Ratio Decidendi

Although the proposed development complied with the LEP height control and view loss from internal living areas was minor, the addition would cause moderate view loss from important open space areas of 1 Fisher Avenue and 22 Wentworth Road, including loss of water and land-water interface views. The impact was unreasonable given the size of the 164.65sqm additional living area, the dwelling's non-compliance with the FSR control, the importance of views from the heritage item setting at 1 Fisher Avenue, and the absence of analysis showing that design changes could reduce view loss. The proposal therefore failed to encourage equitable view sharing and the development application was refused.

Court Disposition

Appeal dismissed and development application refused.

Orders

  • ['The appeal is dismissed.' 'The development application (DA119/2012/1) for alterations and additions incorporating an additional storey to the flat roof of an existing dwelling house at 4 Fisher Avenue Vaucluse is refused.' 'The exhibits, except Exhibits 2, A and B may be returned.']