McDonald v Marrickville Council [2016] NSWLEC 1194

McDonald v Marrickville Council [2016] NSWLEC 1194

The skylight and timber landing platform could be approved because, as amended and limited to maintenance access, they would not have an adverse impact on the heritage significance of the Heritage Conservation Area and would not create the privacy impacts associated with private open space. However, the glass balustrade was unnecessary, was not required by the Building Code of Australia or for safe maintenance access, and detracted from the heritage significance of the building within the Heritage Conservation Area, so approval was confined to amended plans deleting the balustrade and providing appropriate security and safety doors or gates.

Jurisdiction
Australia
Judgment Date
05 May 2016
Procedural Posture
Class 1 Appeal Against Marrickville Council's Refusal of a Request to Review Development Application 201400681 / Judgment With Addendum; Appeal Upheld and Development Application Approved Subject to Conditions
Outcome
Appeal upheld; Development Application 201400681 approved subject to conditions in Annexure A.
Legal Topics
['skylight and Roof Access' 'heritage Conservation Area' 'development Application Review' 'consent Orders' 'building Code of Australia Compliance' 'privacy and Overlooking']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['skylight and Roof Access' 'heritage Conservation Area' 'development Application Review' 'consent Orders' 'building Code of Australia Compliance' 'privacy and Overlooking']

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Procedural Posture

Class 1 Appeal Against Marrickville Council's Refusal of a Request to Review Development Application 201400681 / Judgment With Addendum; Appeal Upheld and Development Application Approved Subject to Conditions

Legal Issues

  1. 1 ['Whether the enlarged roof skylight and timber landing platform for roof access should be approved.' 'Whether the proposal would adversely affect the heritage significance of the Annandale Farm HCA C6.' 'Whether the roof access was for maintenance purposes only or could operate as private open space causing overlooking impacts.' 'Whether the proposed glass balustrade was necessary or should be approved.']

Ratio Decidendi

The skylight and timber landing platform could be approved because, as amended and limited to maintenance access, they would not have an adverse impact on the heritage significance of the Heritage Conservation Area and would not create the privacy impacts associated with private open space. However, the glass balustrade was unnecessary, was not required by the Building Code of Australia or for safe maintenance access, and detracted from the heritage significance of the building within the Heritage Conservation Area, so approval was confined to amended plans deleting the balustrade and providing appropriate security and safety doors or gates.

Court Disposition

Appeal upheld; Development Application 201400681 approved subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development Application 201400681 for demolition of part of the premises, ground and first floor alterations and additions to a dwelling house, construction of a basement laundry and powder room and enlargement of a roof skylight and a timber landing platform to access the roof for...