Gurr v Waverley Council [2019] NSWLEC 1548

Gurr v Waverley Council [2019] NSWLEC 1548

The modification appeal was dismissed because the proposal was a roof top terrace discouraged by Section C2.18 of Waverley Development Control Plan 2012 (Amendment No. 5), roof terraces did not predominate in the vicinity, the terrace would directly overlook rooms and private landscaped areas of adjoining properties, the proposal exceeded the 15m² control, and any view loss, although minor in the context of the panorama, was not insignificant when considered from the affected living areas. The proposal was also not reasonable or necessary because Apartment 3 already had a substantial connected terrace with the relevant panorama. The development application appeal was dismissed because the...

Jurisdiction
Australia
Judgment Date
13 November 2019
Procedural Posture
Class 1 Development Appeals Concerning a Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979 And, in the Alternative, a Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Final Hearing and Orders After Deemed Refusals
Outcome
Both appeals dismissed; development consent refused for the modification application and for Development Application DA-448/2018.
Legal Topics
['modification of Development Consent' 'development Application Refusal' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'roof Top Terrace' 'privacy Impacts' 'acoustic Impacts' 'view Sharing' 'amenity Impacts']
['environmental Planning and Development Law' 'land and Environment Court Proceedings'] ['modification of Development Consent' 'development Application Refusal' 'clause 4.6 Written Request' 'height of Buildings Development Standard' 'roof Top Terrace' 'privacy Impacts' 'acoustic Impacts' 'view Sharing' 'amenity Impacts']

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Procedural Posture

Class 1 Development Appeals Concerning a Modification Application Under S 4.55 of the Environmental Planning and Assessment Act 1979 And, in the Alternative, a Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Final Hearing and Orders After Deemed Refusals

Legal Issues

  1. 1 ['Whether the modification application seeking to modify conditions of Development Consent No. LD12/1999 should be approved to permit a trafficable roof terrace and balustrading.' 'Whether the proposed roof top terrace would have unacceptable visual privacy, acoustic privacy and view sharing impacts on neighbouring properties.' 'Whether roof top terraces predominate in the vicinity and whether the proposal satisfies Section C2.18(g) of Waverley Development Control Plan 2012 (Amendment No. 5).' 'Whether the written request under cl 4.6 of Waverley Local Environmental Plan 2012 adequately justified contravention of the height of buildings development standard in cl 4.3.' 'Whether the Court had jurisdiction to grant consent to Development Application DA-448/2018 despite the height exceedance.']

Ratio Decidendi

The modification appeal was dismissed because the proposal was a roof top terrace discouraged by Section C2.18 of Waverley Development Control Plan 2012 (Amendment No. 5), roof terraces did not predominate in the vicinity, the terrace would directly overlook rooms and private landscaped areas of adjoining properties, the proposal exceeded the 15m² control, and any view loss, although minor in the context of the panorama, was not insignificant when considered from the affected living areas. The proposal was also not reasonable or necessary because Apartment 3 already had a substantial connected terrace with the relevant panorama. The development application appeal was dismissed because the...

Court Disposition

Both appeals dismissed; development consent refused for the modification application and for Development Application DA-448/2018.

Orders

  • ['In relation to Proceedings 2018/352509, being Appeal 1: The appeal is dismissed.' 'In relation to Proceedings 2018/352509, being Appeal 1: Development consent for modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999 is refused.' 'In relation to Proceedings...