Araghi v Mosman Municipal Council [2004] NSWLEC 478

Land and Environment Court of New South Wales

CITATION : Araghi v Mosman Municipal Council [2004] NSWLEC 478 APPLICANT Mehrodkht Araghi PARTIES : RESPONDENT Mosman Municipal Council

FILE NUMBER(S) : 10743 of 2004 CORAM: Hussey C KEY ISSUES: Appeal :- Section 96 Modification - roof height - view impacts

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Mosman LEP CASES CITED: DATES OF HEARING: 25 August 2004 EX TEMPORE 08/25/2004 JUDGMENT DATE :

APPLICANT Ms J Wauchope, solicitor

LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITOR Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey c

25 August 2004

10743 of 2004 Mehrodkht Araghi v Mosman Municipal Council

JUDGMENT 1 This appeal relates to a s 96 modification application for a dwelling located at 16 Illawarra Street, Mosman. 2 The main issue relates to the height of the replacement roof, this arises mainly because a different interpretation with the base levels. However, I accept that the survey details provided by surveyors Mr Theo Mossel and Mr Russell are based on AHD. Consequently they have considered the roof structural elements and confirm that the combination of these, together with the metal roof profile (of woodland grey colour), will comply with a maximum height of RL 43 based on the AHD. 3 Coincidently I note the neighbour Mr Burns reference to the height covenant but his general agreement that the RL 43.00 generally complies with the intent of that covenant. 4 Notwithstanding this I further note Ms McLachlan's dissatisfaction with the roof changes in height and profile primarily because of the intrusions into her view corridors. However, having observed this view impact from her balcony, I then accept the planner's opinions that the impact from the new roof at RL 43.00 results in an insignificant intrusion into her primary view corridor. Whilst there is a very minor intrusion into a secondary or probably a tertiary view directions, I do not consider it sufficient to warrant rejection of the application. 5 Following the detailed amendments that have been made to the s 96 modification application, which includes clarification of the roofing specification and the provision for the vents to be painted to match the colour roofing, I am satisfied that the s 96 modification application relates to the same development. I am also satisfied that the relevant s 79(c) matters have been considered and in that regard I have made reference to the Statement of Basic Facts, which contains a control sheet that show compliance with the relevant controls and this application demonstrates compliance with those. Thirdly, the public interest consideration; which mainly relates to view intrusion and for the reasons previously mentioned, I consider this modified roof does not unreasonably impact on the panoramic views that are available. 6 Therefore I consider the consent orders are reasonable in this case, particularly taking into consideration the agreed conditions that there be a works as executed plan prepared and submitted to council on finalisation of the roof, which confirms that it complies with the maximum height of RL 43.00. 7 The Court orders by consent then are: 1. That the applicant amend his Section 96 Application to include the following conditions: (i) The proposed 'woodland grey' roof will be constructed with non-reflective materials and finishes in accordance with Lysaght colour sample colorbond steel;

(ii) The proposed roof will not exceed RL 43.00 relative to Australian Height Datum (subject to confirmation as provided in Condition (iii) below); and

(iii) A survey certificate will be provided by the Applicant to the Council prior to the commencement of further building works. The survey certificate will be provided by Mr Theo Mossel of Theo Mossel & Associates Registered Consulting Surveyors, at the cost of the applicant, and will indicate: (a) what is the RL (AHD) of the improvements presently erected on the premises; and

(b) what is the RL (AHD) of the proposed roof. Theo Mossel shall be provided with the survey reports prepared by Rygate & Company Pty Limited dated 5 August 2004 and 6 August 2004. (iv) A further survey certificate by Theo Mossel will be provided by the Applicant to the Council (at the cost of the Applicant) at the completion of construction certifying that no part of the roof as constructed exceeds RL 43.00 (AHD).

(v) That the vents in the kitchen and bathrooms on the upper level be painted the same colour as the roof. 2. The amended application be approved and the appeal be upheld.

3. Each party pay their own costs.

________________________ R Hussey Commissioner of the Court Ljr/rjs

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