Mendes H v Kogarah C [2005] NSWLEC 91

Mendes H v Kogarah C [2005] NSWLEC 91

The Court held that circumstances had changed sufficiently since the original approval to reassess the terrace impacts. The proposed roof terrace, with privacy screening and planter boxes extended to the southern boundary, would have minimal visual, aural, bulk, odour and overshadowing impacts on neighbouring properties, would be consistent with the Residential 2(a) zone objectives, and would provide useful outdoor space adjacent to the living areas of No. 20 without unreasonably affecting adjoining properties.

Jurisdiction
Australia
Judgment Date
15 February 2005
Procedural Posture
Appeal Against Kogarah Council's Refusal of a S96 Application to Amend Development Consent 163/97 / Ex Tempore Judgment After Hearing and Site Visit
Outcome
Appeal upheld; s96 application approved; development consent amended; no order as to costs.
Legal Topics
['modification of Development Consent' 'roof Terrace' 'residential Amenity' 'privacy Impacts' 'bulk Impacts' 'overshadowing']
['planning and Environment Law' 'development Consent'] ['modification of Development Consent' 'roof Terrace' 'residential Amenity' 'privacy Impacts' 'bulk Impacts' 'overshadowing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Against Kogarah Council's Refusal of a S96 Application to Amend Development Consent 163/97 / Ex Tempore Judgment After Hearing and Site Visit

Legal Issues

  1. 1 ['Whether condition 22 prohibiting access from the dwelling to the garage roof area should be deleted to allow use of the roof area of the northern dwelling as a terrace.' 'Whether the proposed roof terrace would be consistent with the objectives of the Residential 2(a) zone under Kogarah Local Environmental Plan 1998.' 'Whether the terrace would cause unacceptable visual privacy, aural privacy, bulk, odour, overshadowing or amenity impacts on adjoining residents.' 'Whether the approval would create an unacceptable precedent for use of the garage roof of the southern dwelling as a terrace.']

Ratio Decidendi

The Court held that circumstances had changed sufficiently since the original approval to reassess the terrace impacts. The proposed roof terrace, with privacy screening and planter boxes extended to the southern boundary, would have minimal visual, aural, bulk, odour and overshadowing impacts on neighbouring properties, would be consistent with the Residential 2(a) zone objectives, and would provide useful outdoor space adjacent to the living areas of No. 20 without unreasonably affecting adjoining properties.

Court Disposition

Appeal upheld; s96 application approved; development consent amended; no order as to costs.

Orders

  • ['The appeal is upheld.' 'The s96 application to modify development consent 163/97 for a dual occupancy development at 20 Myers Street, Sans Souci is approved and the consent is amended.' "Condition No 1 is replaced with a condition requiring the development to be carried out generally in accordance with Drawings No...