Habib v Kogarah City Council [2012] NSWLEC 1240

Habib v Kogarah City Council [2012] NSWLEC 1240

The modification application was approved because glass louvre bi-fold aluminium panels using the specified Viridian ComfortSave Neutral 6mm glass would function as an effective sun-shading device, reduce significant western heat gain, remain sufficiently transparent, have acceptable external reflectivity, and not present as an unacceptable curtain glass wall when viewed from Kogarah Bay. The Court also found that the proposed southern wall position for bedroom 1 would not affect the amenity of 59 Vista Street, would not adversely affect the dwelling’s appearance from Kogarah Bay, and was compatible with the scale and proportions of neighbouring dwellings.

Jurisdiction
Australia
Judgment Date
29 August 2012
Procedural Posture
Class 1 Appeal Pursuant to S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Final Judgment After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Appeal upheld; modification application approved subject to conditions.
Legal Topics
['modification Application' 'glass Louvre Sun Shading' 'foreshore Scenic Protection' 'gross Floor Area and Floor Space Ratio' 'ecologically Sustainable Development' 'residential Amenity and Visual Impact']
['planning and Environment' 'development Consent Modification' 'residential Development'] ['modification Application' 'glass Louvre Sun Shading' 'foreshore Scenic Protection' 'gross Floor Area and Floor Space Ratio' 'ecologically Sustainable Development' 'residential Amenity and Visual Impact']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application / Final Judgment After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether the proposed glass louvre system would create excessive unrelieved glazing or an unacceptable curtain wall presentation to the foreshore.' 'Whether the proposed glass louvre system should be treated as a sun-shading device and whether the balconies should be included in gross floor area for floor space ratio purposes.' 'Whether approval of the glass louvres would create an unacceptable planning precedent for waterfront properties.' 'Whether realigning the southern wall of bedroom 1 with the southern elevation would create an unarticulated elevation inconsistent in scale with adjoining dwellings or affect neighbouring amenity.']

Ratio Decidendi

The modification application was approved because glass louvre bi-fold aluminium panels using the specified Viridian ComfortSave Neutral 6mm glass would function as an effective sun-shading device, reduce significant western heat gain, remain sufficiently transparent, have acceptable external reflectivity, and not present as an unacceptable curtain glass wall when viewed from Kogarah Bay. The Court also found that the proposed southern wall position for bedroom 1 would not affect the amenity of 59 Vista Street, would not adversely affect the dwelling’s appearance from Kogarah Bay, and was compatible with the scale and proportions of neighbouring dwellings.

Court Disposition

Appeal upheld; modification application approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Modification application no. 287/2011/2 for Viridian ComfortSave Neutral 6mm glass louvre bi-fold aluminium panels along the western elevation and return bays of the ground and first floor balconies and the first floor southern wall of bedroom 1, aligned with the southern elevation, is...