Xiang v Kogarah City Council (No 2) [2014] NSWLEC 1028

Xiang v Kogarah City Council (No 2) [2014] NSWLEC 1028

Given the significant privacy impacts from the unauthorised slab overhang and construction, privacy can be achieved by requiring a 1.5m high opaque glass balustrade along the side boundary, set back 1m, and a 1m high opaque balustrade on the 3m inward return, thereby modifying the Council's original terms of order to address both privacy and amenity while recognising the applicant's use of the space.

Jurisdiction
Australia
Judgment Date
24 February 2014
Procedural Posture
Appeal (class 1, Land and Environment Court) / Judgment
Outcome
Appeal upheld in part
Legal Topics
['building Works' 'unauthorised Development' 'privacy Impacts' 'amenity Impacts' 'modification of Council Orders']
['planning and Environment Law'] ['building Works' 'unauthorised Development' 'privacy Impacts' 'amenity Impacts' 'modification of Council Orders']

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Procedural Posture

Appeal (class 1, Land and Environment Court) / Judgment

Legal Issues

  1. 1 ['Whether orders issued by Council under s 121B of the Environmental Planning and Assessment Act 1979 should be modified' 'Whether privacy and amenity impacts from unauthorised building works warrant specific alterations to conditions']

Ratio Decidendi

Given the significant privacy impacts from the unauthorised slab overhang and construction, privacy can be achieved by requiring a 1.5m high opaque glass balustrade along the side boundary, set back 1m, and a 1m high opaque balustrade on the 3m inward return, thereby modifying the Council's original terms of order to address both privacy and amenity while recognising the applicant's use of the space.

Court Disposition

Appeal upheld in part

Orders

  • ['The appeal is upheld in part.' 'The Order Nos 2 and 15 under s 121B of the Environmental Planning and Assessment Act 1979 dated 31 July 2013 issued by Kogarah City Council is modified by the substitution of amended terms and reasons as set out in the judgment.' 'The period for compliance is 60 days from the date...