Dive v Hunters Hill Council [2012] NSWLEC 1045

Dive v Hunters Hill Council [2012] NSWLEC 1045

The proposed development, with minor changes to the roof form, was acceptable because it complied with numerical planning controls, did not monopolise or unduly obstruct existing views, minimised view loss to adjoining properties when the three viewing locations at 5 Elgin Street were considered collectively, achieved a reasonable level of privacy with separation distances of at least 9 m, and would sit comfortably with nearby residential development without adverse heritage or foreshore scenic impacts.

Jurisdiction
Australia
Judgment Date
29 February 2012
Procedural Posture
Class 1 Appeal Against Refusal of Development Application 2010/1070 / Final Judgment After Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated With No Agreement
Outcome
Appeal upheld; Development Application 2010/1070 approved subject to conditions in Annexure A.
Legal Topics
['alterations and Additions to Existing Dwelling House' 'view Loss and View Sharing' 'residential Privacy' 'streetscape, Character and Roof Form' 'foreshore Scenic Protection Area' 'heritage Conservation Area']
['planning and Environment' 'development Consent' 'heritage and Conservation'] ['alterations and Additions to Existing Dwelling House' 'view Loss and View Sharing' 'residential Privacy' 'streetscape, Character and Roof Form' 'foreshore Scenic Protection Area' 'heritage Conservation Area']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application 2010/1070 / Final Judgment After Mandatory Conciliation and Arbitration Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated With No Agreement

Legal Issues

  1. 1 ['Whether the proposed alterations and additions provided acceptable view sharing with 5 Elgin Street under Tenacity Consulting v Waringah [2004] NSWLEC 140 and cl 7.6 of Hunters Hill Development Control Plan No. 15 - Residential Development.' 'Whether the proposed deck and first floor works would cause unacceptable loss of privacy to 5 Elgin Street.' 'Whether the roof form and design were acceptable having regard to streetscape, character, the Foreshore Scenic Protection Area and the Heritage Conservation Area.']

Ratio Decidendi

The proposed development, with minor changes to the roof form, was acceptable because it complied with numerical planning controls, did not monopolise or unduly obstruct existing views, minimised view loss to adjoining properties when the three viewing locations at 5 Elgin Street were considered collectively, achieved a reasonable level of privacy with separation distances of at least 9 m, and would sit comfortably with nearby residential development without adverse heritage or foreshore scenic impacts.

Court Disposition

Appeal upheld; Development Application 2010/1070 approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application 2010/1070 for alterations and additions to an existing dwelling house at 7 Elgin Street, Woolwich is approved subject to the conditions in Annexure A.' 'The exhibits are returned with the exception of exhibit A.']