O'Neill v Greater Taree City Council [2012] NSWLEC 1206

Land and Environment Court New South Wales

Medium Neutral Citation: O'Neill v Greater Taree City Council [2012] NSWLEC 1206 Hearing dates: 9 July 2012 Decision date: 10 July 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. DA No. 85/2012/DA for alterations and additions to an existing dwelling at 343 Saltwater Road, Wallabi Point is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, 6 and A. Catchwords: DEVELOPMENT APPLICATION; alterations and additions to an existing dwelling for a garage and pergola - non compliance with side setback - impact on streetscape - bulk/scale - loss of daylight Legislation Cited: Environmental Planning and Assessment Act 1979 Greater Taree Local Environmental Plan 2010. Land and Environment Court Act 1979 Category: Principal judgment Parties: Chris O'Neill (Applicant) Greater Taree City Council (Respondent) Representation: Ms L-M Saw, barrister (Applicant) Mr S Seton, solicitor (Respondent) - (Applicant) Marsdens Law Group (Respondent) File Number(s): 10336 of 2012

Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Greater Taree City Council (the council) of DA No. 85/2012/DA for alterations and additions to an existing dwelling at 343 Saltwater Road, Wallabi Point (the site). 2The alterations and additions involve; 1. the construction of a garage measuring 3.25 m by 3.35 m, within the northern side setback, and, 2. the construction of a pergola roof in the rear yard, measuring 4.8 m by 5.39 m. 3The contentions raised by the council relate only to the proposed garage and relate to; 1. the breach of the 900 mm side setback requirement 2. the impact on the established streetscape by the breach of the side setback requirement. 3. the unacceptable bulk and scale on the amenity of the adjoining residential property at 341 Saltwater Road. 4. the undesirable precedent. 4The appeal was subject to mandatory conciliation and arbitration under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with forthwith pursuant to 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii).