Palmer v City of Sydney Council [2011] NSWLEC 1315

Land and Environment Court New South Wales

Medium Neutral Citation: Palmer v City of Sydney Council [2011] NSWLEC 1315 Hearing dates: 26 October 2011 Decision date: 04 November 2011 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal dismissed Catchwords: Section 96 modification; is the proposed development substantially the same as that originally approved; compliance with open space provisions; impacts on the character and form of adjoining heritage items Legislation Cited: Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 South Sydney Local Environmental Plan 1998 Cases Cited: Yazbek v Council of the City of Sydney [2010] NSWLEC 1210 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244 Category: Principal judgment Parties: Andrew Bradley Palmer (Applicant) City of Sydney Council Representation: Applicant: Ms J Hewitt (Solicitor) Respondent: Mr A Singh (Solicitor) Applicant: HWL Ebsworth Lawyers Respondent: City of Sydney Council File Number(s): 10730 of 2011

Judgment 1COMMISSIONER: This is an appeal against the refusal by the City of Sydney Council (the council) of an application made under s 96(2) of the Environmental Planning & Assessment Act 1979 (the Act) to modify Development Consent D/2008/128/B. The applicant seeks modifications to several conditions of consent in order to allow alterations to the rear first floor of a new dwelling at 16 Little Napier Street Paddington (the site). 2The s 96 modification application seeks to amend Condition 1 (the list of approved plans) to include amended plans to allow a first floor rear deck and to delete conditions 1A and 2. 3Condition 1A ELEMENTS OF DESIGN NOT APPROVED states: The following elements of the design are not approved: (a)The first floor rear deck and associated balustrades; (b)The full height glass doors leading to the deck from bedroom 2; (c)Change in pitch of the rear ground floor roof. The modifications are to be made to the approved plans listed in Condition 1 and submitted and approved by Council within 30 days of the modified consent. 4Condition 2 ROOF OF GROUND FLOOR states: The roof of the ground floor to the rear is to be non-trafficable at all times. 5The proposal seeks approval for a 5m 2 first floor balcony off the rear of the second bedroom to be accessed by double fully glazed doors. The balcony is to be created by sectioning off part of the tiled parapet roof of the living room below with 1.5m high opaque glass balustrading on three sides. A planter box 500mm high by 500mm wide is proposed for the northern side of the balustrade. The planter boxes are to be planted with Lillypillies maintained at a height of 1.5m. [During the joint conference between the parties' planners, the option of reducing the area to about 3m 2 was discussed, with the glass balustrades to be set back 1.2m from the northern wall of the house.] 6The history of the application is detailed in the Respondent's Statement of Facts and Contentions.