Abou-Anton v City of Ryde Council [2018] NSWLEC 1334

Abou-Anton v City of Ryde Council [2018] NSWLEC 1334

The Court held that BC1 should be dismissed by agreement and that BC2 should be upheld subject to conditions. Although the Court did not require removal of the third storey and accepted that some impacts would also arise from a compliant dwelling, the rear skillion roof was unnecessarily high, provided little utility, and caused tangible additional bulk and outlook impacts, so it should be lowered. Privacy screening and boundary landscaping were reasonable to address overlooking, and the southern portion of the front fence and driveway gate should be reduced because their height caused adverse streetscape and neighbour impacts. Requiring downstream drainage easements over other properties...

Jurisdiction
Australia
Judgment Date
04 July 2018
Procedural Posture
Class 1 Appeals Against Actual and Deemed Refusals of Building Certificate Applications / Final Judgment After Hearing
Outcome
Appeal 2017/165218 dismissed; Appeal 2017/252167 upheld subject to satisfaction of conditions before issue of a building information certificate.
Legal Topics
['unauthorised Building Works' 'notional Development Application Assessment' 'amenity Impacts' 'view Loss' 'overshadowing' 'privacy and Overlooking' 'front Fence and Driveway Gate Height' 'stormwater Drainage Easements' 'flooding and Overland Flow']
['planning and Environment' 'development Control' 'building Information Certificates'] ['unauthorised Building Works' 'notional Development Application Assessment' 'amenity Impacts' 'view Loss' 'overshadowing' 'privacy and Overlooking' 'front Fence and Driveway Gate Height' 'stormwater Drainage Easements' 'flooding and Overland Flow']

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Procedural Posture

Class 1 Appeals Against Actual and Deemed Refusals of Building Certificate Applications / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether a building information certificate should issue for unauthorised works to the dwelling house at 176 Princes Street, Putney.' 'Whether the height, bulk and scale of the dwelling, including the rear skillion roof and third storey elements, caused unacceptable amenity impacts on adjoining properties.' 'Whether overshadowing, view loss, outlook impacts and overlooking justified requiring modifications or refusing the certificate.' 'Whether the front fence and driveway gate height adversely affected the streetscape and neighbouring amenity.' 'Whether the applicants should be required to secure downstream stormwater drainage easements before issue of a building information certificate.' 'What conditions should be satisfied before the Council is directed to issue a building information certificate.']

Ratio Decidendi

The Court held that BC1 should be dismissed by agreement and that BC2 should be upheld subject to conditions. Although the Court did not require removal of the third storey and accepted that some impacts would also arise from a compliant dwelling, the rear skillion roof was unnecessarily high, provided little utility, and caused tangible additional bulk and outlook impacts, so it should be lowered. Privacy screening and boundary landscaping were reasonable to address overlooking, and the southern portion of the front fence and driveway gate should be reduced because their height caused adverse streetscape and neighbour impacts. Requiring downstream drainage easements over other properties...

Court Disposition

Appeal 2017/165218 dismissed; Appeal 2017/252167 upheld subject to satisfaction of conditions before issue of a building information certificate.

Orders

  • ['Appeal 2017/165218 for building certificate application number BC-2017/6 is dismissed.' 'Appeal 2017/252167 for building certificate application number BC-2017/26 is upheld, subject to the requirements of Order (3).' 'The Council is directed, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment...