Johnson v North Sydney Council [2007] NSWLEC 604

Land and Environment Court of New South Wales

CITATION : Johnson v North Sydney Council [2007] NSWLEC 604

APPLICANT David Johnson PARTIES : RESPONDENT North Sydney Council

FILE NUMBER(S) : 11004 of 2006; 10143 of 2007

CORAM: Tuor C

Section 121B Order - Section 96 Application :- KEY ISSUES: Work constructed without consent impact on adjoining neighbours solar access

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 16 May 2007

EX TEMPORE JUDGMENT DATE : 16 May 2007

APPLICANT Mr J Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T To, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

16 May 2007

11004 of 2006 David Johnson v North Sydney Council 10143 of 2007

PRELIMINARY JUDGMENT 1 Appeal No. 10143 of 2007 is an appeal against the refusal by North Sydney Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent (DA1047/90) for an infill development at 562 Miller Street Cammeray. The application was approved by council on 12 July 1991. The s 96 application was lodged on 20 October 2006 and seeks approval for unauthorised work. The s 96 application was refused by council on 22 February 2007. 2 Appeal No. 11004 of 2006 is an appeal against an order No. 15 under s 121B of the Act to demolish unauthorised works and rectification in accordance with the approved plans. 3 The parties agreed that the appeals could be heard together. 4 The site, its context, the history of the application and the planning controls are in the Statement of Basic Facts for each appeal. 5 The Court visited the site and heard evidence from the adjoining neighbours, Mr and Mrs Carpenter of 18 Vale Street, Cammeray. The Court also heard evidence on site from Ms K Gordon, planner on behalf of the applicant, Ms G Nalder, planner on behalf of the council and Mr J Mills, council's expert on solar access. 6 Following advice from experts the parties agreed to amendments to the proposal which would involve demolition of some of the unauthorised work and which would reduce the impact on the adjoining neighbours. 7 The main concern of council and the residents was that the increased wall height along the southern boundary resulted in significant overshadowing of the open space at 18 Vale Street. Ms Gordon explained that the works had been undertaken as the approved drawings could not be constructed and provide satisfactory head height between the ground and first floor. The proposed amended plan would provide a solution, which would increase the wall height above that which was approved but not increase the overshadowing of the courtyard to 18 Vale Street in a material way beyond that which was approved. Mr Mills confirmed that this was correct. This largely addressed Mr and Mrs Carpenter's concern. However, they raised the issue that the increase in the boundary fence required to conceal the water tank would also reduce solar access in summer. 8 I do not consider this to be a determinative issue. The increase in the fence is minor and results in only a minor reduction in solar access to the patio which occurs only in summer. The impact is acceptable particularly when balanced against the benefits of providing a rainwater tank. 9 The proposed amendments to the terrace and the planter box were agreed to be satisfactory. The only other issue was the pergola at the rear of the property. Council raised concern that it would impact on the ability to provide soft landscaping and screening to the adjoining properties. The parties agreed that a landscape plan would be provided which demonstrated the interrelationship of the pergola and the landscaping. Provided adequate landscaping can be provided there is no reason why the pergola is not acceptable.