Tom Engel and Ann H Kocek v Blue Mountains City Council [2003] NSWLEC 402

Tom Engel and Ann H Kocek v Blue Mountains City Council [2003] NSWLEC 402

The s 96 application was approved because the Court accepted the planning evidence that the height exceedance from the lantern cupola was minor and acceptable in terms of bulk and streetscape, and because the considerable separation distances, existing patterns of overlooking and proposed conditions meant the revised windows would not cause unacceptable privacy or amenity impacts. The unusual window shapes were compatible with the already approved geodesic dome design, and concerns about FG1, W11 and W12 could be addressed by fixed obscured glass and screen planting.

Jurisdiction
Australia
Judgment Date
12 December 2003
Procedural Posture
Class 1 Appeal Concerning Refusal of a S 96 Application to Amend Development Consent for a Twin Geodesic Domed House / Ex Tempore Judgment After Hearing
Outcome
Appeal upheld; s 96 application granted to amend the development consent subject to conditions.
Legal Topics
['s 96 Modification Application' 'height Limit Exceedance' 'state Environmental Planning Policy No. 1 Objection' 'visual Impact' 'privacy and Overlooking' 'residential Amenity']
['planning and Environment' 'development Consent Modification'] ['s 96 Modification Application' 'height Limit Exceedance' 'state Environmental Planning Policy No. 1 Objection' 'visual Impact' 'privacy and Overlooking' 'residential Amenity']

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Procedural Posture

Class 1 Appeal Concerning Refusal of a S 96 Application to Amend Development Consent for a Twin Geodesic Domed House / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the prior amended consent should be treated as ultra vires because the applicant had not agreed to the changes imposed by conditions' 'Whether the proposed lantern cupola on the large dome should be permitted despite exceeding the height restriction in cl 10.6 of the Blue Mountains Local Environmental Plan (1991)' 'Whether the proposed windows and internal reorientation would cause unacceptable privacy, light spill, glare, visual amenity or residential character impacts' 'Whether the s 96 application should be approved with conditions requiring accurate plans, fixed frosted glass and screen planting']

Ratio Decidendi

The s 96 application was approved because the Court accepted the planning evidence that the height exceedance from the lantern cupola was minor and acceptable in terms of bulk and streetscape, and because the considerable separation distances, existing patterns of overlooking and proposed conditions meant the revised windows would not cause unacceptable privacy or amenity impacts. The unusual window shapes were compatible with the already approved geodesic dome design, and concerns about FG1, W11 and W12 could be addressed by fixed obscured glass and screen planting.

Court Disposition

Appeal upheld; s 96 application granted to amend the development consent subject to conditions.

Orders

  • ['The appeal is upheld.' 'The s96 application is granted to amend Consent No. X00/0995 2000 issued by Blue Mountains City Council on 30 August 2000 for a house on No. 37 Kingfisher Crescent, Bullaburra. The amendments to the plan shall be as contained in exhibit D drawings Nos. 618/1, 2, 3 and 4 dated September 2003...