Benjamin v Sydney City Council No. 2 [2016] NSWLEC 1027

Land and Environment Court New South Wales

Medium Neutral Citation: Benjamin v Sydney City Council No. 2 [2016] NSWLEC 1027 Hearing dates: 26 November 2015 with final submissions filed on 27 January 2016 Date of orders: 02 February 2016 Decision date: 02 February 2016 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: rooftop terrace, height of retractable awning Cases Cited: Benjamin v Sydney City Council NSWLEC 1568; R v Lowe (1954) 19 LGR 348 Category: Principal judgment Parties: Anthony Benjamin (Applicant)

Sydney City Council (Respondent) Representation: Solicitors: A Whealy, Gadens (Applicant) A Simpson, Sydney City Council (Respondent) File Number(s): 10760 of 2015

Judgment 1. On 2 December 2015 judgement was delivered on the substantive matter, an appeal against Sydney City Council's refusal of a development application for a new roof terrace to the roof and new stairs to connect the existing living room of an apartment at 15 Billyard Avenue Elizabeth Bay (see Benjamin v Sydney City Council NSWLEC 1568). 2. Directions for the applicant to prepare, file and serve amended plans that reflect the findings in [61-62] of that judgement within 14 days and for the council to prepare and file conditions of consent seven days after receipt of those plans were made. 3. The parties failed to meet the timeframe set however the plans and conditions have now been filed with the Court. Draft condition 4 (a) is in dispute. 4. That condition relates to the retractable awning discussed in the judgement and the council seeks to impose a restriction on the height of that awning. Proposed condition 4(a) is as follows: When extended, no part of the retractable awning or its associated structure shall exceed RL 38.280. 1. As there was a dispute between the parties, in accordance with a just cheap and quick resolution of the matter, written submissions were requested.