Carnabuci v Waverley Council [2014] NSWLEC 1103

Land and Environment Court New South Wales

Medium Neutral Citation: Carnabuci v Waverley Council [2014] NSWLEC 1103 Hearing dates: 14 May 2014 Decision date: 15 May 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions; see paragraph [50] Catchwords: DEVELOPMENT APPLICATION: Additions and alterations; bulk and scale; impacts on solar access Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Ms Connie Carnabuci (Applicant) Waverley Council (Respondent) Representation: Applicant: Ms J McKelvey (Barrister) Respondent: Ms C Morton (Solicitor) Respondent: Sparke Helmore File Number(s): 10147 of 2014

Judgment 1COMMISSIONER: The applicant appeals Waverley Council's refusal of Development Application DA-469/2013 for alterations and additions to a recently approved but as yet unbuilt dwelling house at 4 Lola Road, Dover Heights. 2The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 3The applicant seeks consent for: * The extension of the southern timber-slatted privacy screen adjacent to the first floor level terrace adjoining the second study, from 1.6m to a height of 1.9m; and * The construction of a partial shading device and supporting structure for the first floor level terrace.

The proposal and relevant background 4A more detailed history is provided in council's Statement of Facts and Contentions. In summary: * In May 2012, council granted consent for the erection of a new dwelling on the site (DA-543/2011). * In April 2013, council's Development Control Committee granted conditional consent to a new application for the demolition of the existing dwelling and erection of a new 2-storey dwelling with associated pool, garage and driveway (DA-560/2012). * Conditions were imposed to delete and or reduce elements on the rear southern side of the proposed dwelling. These conditions included deletion of a proposed roof structure over the first floor terrace off the second study. The replacement condition required a privacy screen of fixed obscure glass 1.8m high on the southern side of the terrace to assist with light penetration to the property located to the south. * In May 2013 the applicant lodged a s96 application to modify the consent by deleting those conditions. The Waverley Development Assessment Panel (WDAP) determined the modification application by deleting the proposed roof and replacing the privacy screen with timber slats to 1.6m. * In October 2013, the applicant submitted DA-469/2013, the subject of this appeal, for the works described in [3]. WDAP considered the applicant and refused it on a number of grounds including excessive bulk and scale, and extent of overshadowing. * The applicant filed the Class 1 application on 11 March 2014. 5The relevant component of the development approved by the s 96 modification application is the rear of the southern wing of the approved dwelling. The approved plans illustrate a first floor open terrace above the roof slab of the breakfast room and accessed from the second study. The approved terrace is bounded by timber slats on its northern, eastern and southern sides; the screen on the southern side extends to 1.6m. Apart from the floor, there are no significant masonry elements comprising the approved terrace. 6The proposal involves increasing the height of the southern screen to 1.9m. The timber, slatted screen comprises the southern façade of the eastern projection of the southern wing. The shade structure involves extending the ground floor masonry columns (approximately 1000mm wide x 350mm thick) to the full height of the dwelling roof and topping the eastern and northern sides with masonry beams or spandrels 450mm deep. There is no spandrel proposed on the southern façade. The roof of the terrace comprises a timber pergola. 7The 2013 development consent is yet to be commenced.