Chiefari v Waverley Council [2017] NSWLEC 1567

Chiefari v Waverley Council [2017] NSWLEC 1567

The proposal satisfies the relevant objectives and controls of the DCP due to the absence of unacceptable amenity impacts and by proper construction of 'contiguous' in control (e)(i) to include near, not just directly adjoining or opposite properties. As such, the application to modify development consent is approved as it also meets the merit assessment under s 79C of the EP&A Act.

Parties
Applicant: Tony Chiefari; Respondent: Waverley Council
Jurisdiction
Australia
Judgment Date
10 October 2017
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal upheld; application approved with conditions.
Legal Topics
Modification of Development Consent, Roof Top Terraces, Interpretation of Planning Controls, Visual and Acoustic Privacy, Development Control Plan Compliance, Local Environmental Plan Compliance
Planning and Environment Modification of Development Consent Roof Top Terraces Interpretation of Planning Controls Visual and Acoustic Privacy Development Control Plan Compliance Local Environmental Plan Compliance

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Parties

Tony Chiefari

Applicant

Waverley Council

Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether the proposal complies with height and privacy controls in the Waverley DCP and LEP
  2. 2 Proper interpretation of 'contiguous' under DCP section 1.8(e)(i)
  3. 3 Whether the proposal results in unacceptable privacy, amenity or noise impacts

Ratio Decidendi

The proposal satisfies the relevant objectives and controls of the DCP due to the absence of unacceptable amenity impacts and by proper construction of 'contiguous' in control (e)(i) to include near, not just directly adjoining or opposite properties. As such, the application to modify development consent is approved as it also meets the merit assessment under s 79C of the EP&A Act.

Court Disposition

Appeal upheld; application approved with conditions.

Orders

  • The appeal is upheld.
  • The application to modify development consent no. 486/2013 to include a roof top terrace of not more than 15m2, including a glass balustrade and opaque glass privacy screen at 172 Hasting Parade, Bondi is approved subject to the Council's proposed conditions of consent.