Inkson v Lane Cove Council [2008] NSWLEC 1518

Inkson v Lane Cove Council [2008] NSWLEC 1518

The Court upheld the s 96 application because the applicable controls did not prohibit roof terraces, the only real non-compliance was a limited excess in terrace width, the alleged third-storey issue was inconsequential or of little weight, and the evidence showed that visual and acoustic amenity impacts on neighbours would be minimal and acceptable, particularly given separation distances, existing overlooking, roof design and absence of neighbour objections. Precedent was not a proper basis to refuse the modification because each application must be assessed on its own merits and this was not the first roof terrace in Greenwich.

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Class 1 Appeal Concerning Refusal of a S 96 Application / Ex Tempore Judgment
Outcome
The Class 1 appeal was upheld and the s 96 application was upheld.
Legal Topics
['section 96 Application' 'alterations and Additions to a Dwelling House' 'roof Top Terrace' 'visual Privacy' 'acoustic Privacy' 'development Controls' 'number of Storeys' 'precedent']
['environmental Planning and Assessment' 'development Consent Modification' 'residential Amenity'] ['section 96 Application' 'alterations and Additions to a Dwelling House' 'roof Top Terrace' 'visual Privacy' 'acoustic Privacy' 'development Controls' 'number of Storeys' 'precedent']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of a S 96 Application / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether conditions 3, 4 and 5 of DA302/2007 requiring deletion of a roof top terrace and staircase should be deleted.' 'Whether the proposed roof top terrace would unacceptably affect visual privacy of adjoining properties.' 'Whether the proposed roof top terrace would unacceptably affect acoustic privacy of adjoining properties.' 'Whether the proposal failed to comply with Council controls concerning elevated deck width, ceiling height and number of storeys.' 'Whether approval would create an undesirable precedent for roof top terraces.']

Ratio Decidendi

The Court upheld the s 96 application because the applicable controls did not prohibit roof terraces, the only real non-compliance was a limited excess in terrace width, the alleged third-storey issue was inconsequential or of little weight, and the evidence showed that visual and acoustic amenity impacts on neighbours would be minimal and acceptable, particularly given separation distances, existing overlooking, roof design and absence of neighbour objections. Precedent was not a proper basis to refuse the modification because each application must be assessed on its own merits and this was not the first roof terrace in Greenwich.

Court Disposition

The Class 1 appeal was upheld and the s 96 application was upheld.

Orders

  • ['The s 96 application is upheld.' 'Conditions 3, 4 and 5 of DA302/2007 for No 12 Chisholm Street, Greenwich are deleted.' 'The exhibits are returned to the parties except exhibits 1, 6, A and E.']