Pizzuto v Randwick City Council [2010] NSWLEC 1350

Land and Environment Court of New South Wales

CITATION : Pizzuto v Randwick City Council [2010] NSWLEC 1350

APPLICANT Marino Pizzuto PARTIES : RESPONDENT Randwick City Council

FILE NUMBER(S) : 10797 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT APPLICATION :- construction of rooftop terrace impacts on amenity of the area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998(Consolidation)

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley [2004] NSWLEC 91

DATES OF HEARING: 13 December 2010

DATE OF JUDGMENT: 17 December 2010

APPLICANT Ms C Rose SOLICITOR Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton SOLICITOR Marsdens Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Morris C

17 December 2010

10797 of 2010 Marino Pizzuto v Randwick City Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to the provisions of s96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Randwick City Council (the council) of an application which sought to modify development consent No. 232/2008 (the consent) by the deletion of a condition of that consent which has the effect of preventing the construction of a roof terrace above an approved garage. The modification included a proposal to install privacy screens around that terrace area. The site and its context 2 No. 4 Northumberland Street, Clovelly (the site) is a rectangular shaped allotment located on the western side of the street between Park Lane and Warner Avenue. The site has a frontage of 10.06m, depth of 35.42m and area of 356.4m2. Northumberland Lane provides vehicular access to the site and other properties in this section of Northumberland Street and also those which front Campbell Street. 3 The locality is residential in nature and comprises a mix of semi detached and freestanding dwellings. A number of residential flat buildings are located to the north of Park Lane and in the next street to the east, Ocean Street. 4 The immediate locality, incorporating those lots which obtain access from Northumberland Lane, comprises a series of single and two-storey dwellings, some of which include rear garages. All of those garages are single storey structures. 5 The site contains a two-storey dwelling, a double garage with access to the lane and a swimming pool in the south western corner. Background and the proposal 6 The consent was issued by the council on 11 June 2008 and authorised the construction of alterations and additions to the dwelling, a swimming pool, rear decking, fencing, and an additional garage. The original development application also included a proposal to construct a trafficable roof deck above the garage. The council did not consent to that part of the application and included a condition in the consent to prohibit its construction. That condition, condition 6, reads as follows: To maintain privacy to the adjoining properties the proposed roof terrace to the garage and access steps are to be deleted from the plans and the garage roof is not to be used for trafficable purposes. 7 An application pursuant to the provisions of s96(2) of the Act to delete condition 6 of the consent was refused by the council on 27 August 2010. The reasons for the refusal are: 1. The proposal is inconsistent with relevant objectives of the Residential A zone. 2. The objectives and/or performance criteria of Part 2 – Developing in Context, Clause 4.5 – Visual and Acoustic Privacy and Clause 4.9 – Foreshore Development of the Dwelling Houses and Dual Occupancies Development Control Plan are not satisfied. 3. The proposed modification is not of a minimal environmental impact. 4. The proposal will result in adverse impacts to the built and social environments. 5. The proposal will result in unreasonable impacts to the privacy of neighbouring residents. 6. The proposed built form is incompatible with existing development facing Northumberland Lane.