Bown v Canada Bay City Council [2004] NSWLEC 739

Land and Environment Court of New South Wales

CITATION : Bown v Canada Bay City Council [2004] NSWLEC 739 PARTIES : APPLICANT Russell and Susan Bown v Canada Bay City Council FILE NUMBER(S) : 10797 and 10798 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- In Appeal 10797 of 2004 - appeal against a s 121B Order - in Appeal 10798 of 2004 - daylight and amenity impacts on neighbours - streetscape Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Drummoyne Local Environmental Plan 1986 Drummoyne Comprehensive Development Control Plan CASES CITED: DATES OF HEARING: 29/10/2004 EX TEMPORE 12/07/2004 JUDGMENT DATE :

APPLICANT Ms F Sinclair, solicitor SOLICITORS Williams & Company LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

7 December 2004

10797 & 10798 of 2004 Russell & Susan Bown v Canada Bay City Council

JUDGMENT

1 This judgment is in regard to two appeals heard simultaneously. 2 The first was appeal No. 10797 of 2004 between Russell Bown and Susan Bown v The City of Canada Bay Council. It was an appeal against conditions of approval of s 96(2) Development Application No. 409/00. 3 The second appeal was between the same parties and was appeal No. 10798 of 2004 against an Order to Demolish issued under s 121B of the Environmental Planning and Assessment Act 1979, the order being No. 15 thereto. 4 The property was 50 Russell Street, Russell Lea. It was a large two storey house that had been built as major extensions and alterations to an existing single storey house. 5 The details of the order to demolish were: (1) Remove the unauthorised storage mezzanine that has been added to the garage. (2) Remove the unauthorised extension to the garage. (3) Remove the unauthorised roof extending from the garage described as an awning. (4) Remove the unauthorised dark grey roof tiles that have been installed in lieu of terracotta tiles. 6 The conditions appealed against in the s 96 amendment consent were conditions (b) and (c). They stated: (b) The council does not approve the following illegal works and resolves to take all necessary legal action to have those works reinstated to be consistent with the development consent 409/00. and the condition then lists the items for demolition as already stated. (c) That council as the responsible authority resolve to modify development consent No. 409/00 on land at 50 Russell Street, Russell Lea, insofar as will provide for those matters identified in clause (b) above. 7 The respondent's issues in both appeals were: (1) Whether the extension to the garage including the extended roof or awning over the garage is unacceptable. Particulars : The unarticulated length of the garage wall is contrary to council's development control plan which provides a maximum unarticulated wall length of twelve metres, the wall length as constructed is 13.2 m, the extended garage is unacceptably bulky and too long, particularly having regard to its impact on the immediately adjoining neighbour and the extended garage gives rise to overshadowing to the immediately adjoining neighbour. (2) Whether the use of dark grey concrete roof tiles in lieu of terracotta tiles is unacceptable. Particulars : The dark grey roof tiles are uncharacteristic of roof tiles of dwelling houses in the immediate vicinity and have a detrimental impact upon the streetscape, particularly having regard to the size of the roof area and its high visibility within the street. (3) Matters of public interest and matters raised by objectors. Particulars : The extended garage and roof area together with the different tiles to the roof area are works which were undertaken not in accordance with the terms of development consent No. 409/00 of 16 April 2001. Such works have an unacceptable impact on the amenity of adjoining neighbours and the streetscape and accordingly is not in the public interest to allow such works to remain. 8 The applicant's issues in appeal 10798 of 2004 were: (1) Whether the extension to the garage has any adverse impacts on the amenity of the neighbouring property.