McGowan v Willoughby City Council [2006] NSWLEC 596

McGowan v Willoughby City Council [2006] NSWLEC 596

The Court was satisfied that, instead of requiring reinstatement of the internal dividing wall, the amended s 96 works comprising glass screens, landscaping, planter boxes and reinstatement of missing fencing would provide an appropriate buffer, protect oral and visual privacy and amenity of the adjoining property, and keep persons away from the edge of the verandah. The s 96 appeal was therefore upheld and the council's s 121B order was substituted with an order requiring those works to be completed within 90 days.

Jurisdiction
Australia
Judgment Date
11 September 2006
Procedural Posture
Appeals Concerning an Order Under S 121 B and a S 96 Modification Application Under the Environmental Planning and Assessment Act / Extempore Judgment After a Binding S 34 Conference
Outcome
Appeal No. 10506 of 2006 was upheld and the modification application was approved as amended; Appeal No. 10505 of 2006 resulted in the council order being substituted.
Legal Topics
['development Consent Modification' 'council Order' 're Erection of Dividing Wall' 'noise, Privacy and Amenity' 'trafficable Verandah on Boundary']
['environmental Planning and Assessment' 'development Control' 'heritage Conservation'] ['development Consent Modification' 'council Order' 're Erection of Dividing Wall' 'noise, Privacy and Amenity' 'trafficable Verandah on Boundary']

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Procedural Posture

Appeals Concerning an Order Under S 121 B and a S 96 Modification Application Under the Environmental Planning and Assessment Act / Extempore Judgment After a Binding S 34 Conference

Legal Issues

  1. 1 ['Whether the council order requiring re-erection of a dividing wall between the living room and dining room should stand' 'Whether the s 96 modification application should be approved as amended' 'Whether removal of the wall and use of the space as a dining room would adversely affect noise, privacy and amenity of the adjoining premises' "Whether screens, landscaping, planter boxes and reinstatement of fencing would sufficiently protect the adjoining neighbour's amenity"]

Ratio Decidendi

The Court was satisfied that, instead of requiring reinstatement of the internal dividing wall, the amended s 96 works comprising glass screens, landscaping, planter boxes and reinstatement of missing fencing would provide an appropriate buffer, protect oral and visual privacy and amenity of the adjoining property, and keep persons away from the edge of the verandah. The s 96 appeal was therefore upheld and the council's s 121B order was substituted with an order requiring those works to be completed within 90 days.

Court Disposition

Appeal No. 10506 of 2006 was upheld and the modification application was approved as amended; Appeal No. 10505 of 2006 resulted in the council order being substituted.

Orders

  • ['The appeal in respect of the property known as 17 Cameron Avenue, Artarmon, is upheld.' 'The modification application submitted to Willoughby Council and as amended and shown in Exhibit F, is approved subject to the consolidated set of conditions in Annexure A.' 'The order for the property known as No. 17 Cameron...