Hickey v Newcastle City Council [2016] NSWLEC 1060

Land and Environment Court New South Wales

Medium Neutral Citation: Hickey v Newcastle City Council [2016] NSWLEC 1060 Hearing dates: 3 February 2016 Date of orders: 19 February 2016 Decision date: 19 February 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1.The appeal is dismissed. 2. Development Application 2014/1481 for the construction of a roof and windows to enclose an existing first floor balcony at Unit A101/1 Moroney Avenue, Newcastle East is refused. 3. The exhibits are returned with the exception of exhibits 1 and B. Catchwords: DEVELOPMENT APPLICATION: enclosure of existing first floor balcony – view loss – whether breach of floor space ratio standard well founded Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Mark Hickey (Applicant) Newcastle city Council (Respondent) Representation: Counsel: Mr D Grey, solicitor (Applicant) Ms F Burgland, barrister (Respondent)

Solicitors: Sparke Helmore Lawyers (Applicant) Newcastle City Council (Respondent) File Number(s): 10954 of 2015 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application 2014/1481 by Newcastle City Council for the construction of a roof and windows to enclose an existing open first floor courtyard of Unit A101/1 Moroney Avenue, Newcastle East or Lot 1 in SP 75975 (the site). Unit A101 forms part of a larger residential flat building (the Moroney Avenue building). The external courtyard to be enclosed has dimensions of around 5m x 4m although the roof area has a greater area as it also covers the stairs from the ground level to the open courtyard. 2. The appeal was subject of a conciliation conference on 3 February 2016 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). 3. The council maintains that the application should be refused because of: the unacceptable view loss, and insufficient justification for an increase in the floor space ratio (FSR) for the overall development. 1. The council also raised concern over the potential loss of privacy although the council accepted that the inclusion of opaque glass in the windows overcame this concern but raised the additional issue of increased bulk because of the opaque nature of the glass.