Scoufis v Sutherland Shire Council [2012] NSWLEC 1163

Scoufis v Sutherland Shire Council [2012] NSWLEC 1163

The proposed large rooftop terrace would provide private benefits and views but, given the dwelling's other outdoor areas, the terrace's secondary location, the planning history requiring the area to be non-trafficable, and likely privacy and visual amenity impacts on neighbouring properties, the proposed terrace was excessive and not justified. A smaller terrace with an effective paved area 6 m wide and 2.5 m deep, with planter boxes, screening plants and watering system, would strike an acceptable balance and could be approved by modified conditions.

Jurisdiction
Australia
Judgment Date
15 June 2012
Procedural Posture
Class 1 Appeal Against Refusal of a S 96 Application to Modify Development Consent / Determination After S 34 Conference Was Terminated When Agreement Was Not Reached on the Rooftop Terrace Issue
Outcome
Appeal allowed; s 96 modification application approved subject to conditions in Annexure A.
Legal Topics
['dwelling House Modification' 'rooftop Terrace' 'privacy and Amenity Impacts' 'floor Space Ratio' 'landscaped Area' 'urban Design Controls']
['planning and Environment Law' 'development Consent Modification'] ['dwelling House Modification' 'rooftop Terrace' 'privacy and Amenity Impacts' 'floor Space Ratio' 'landscaped Area' 'urban Design Controls']

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Procedural Posture

Class 1 Appeal Against Refusal of a S 96 Application to Modify Development Consent / Determination After S 34 Conference Was Terminated When Agreement Was Not Reached on the Rooftop Terrace Issue

Legal Issues

  1. 1 ['Whether the s 96 modification application for works to a dwelling house should be approved' 'Whether the proposed rooftop terrace would cause unacceptable privacy, overlooking, visual intrusion or acoustic amenity impacts on adjoining properties' 'Whether reliance on planter box landscaping and screening adequately minimised privacy impacts' 'Whether the size and necessity of the proposed rooftop terrace were reasonable given other outdoor areas and the planning history of the consent']

Ratio Decidendi

The proposed large rooftop terrace would provide private benefits and views but, given the dwelling's other outdoor areas, the terrace's secondary location, the planning history requiring the area to be non-trafficable, and likely privacy and visual amenity impacts on neighbouring properties, the proposed terrace was excessive and not justified. A smaller terrace with an effective paved area 6 m wide and 2.5 m deep, with planter boxes, screening plants and watering system, would strike an acceptable balance and could be approved by modified conditions.

Court Disposition

Appeal allowed; s 96 modification application approved subject to conditions in Annexure A.

Orders

  • ['The appeal is allowed.' 'The s 96 application to modify development consent MA11/0205 for a dwelling house at 36 Sylvania Road Sylvania is approved subject to the conditions in Annexure A.' 'The exhibits may be returned except 3, 4, A and B.']