Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129

Land and Environment Court New South Wales

Medium Neutral Citation: Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129 Hearing dates: 4-5 April 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Modification Application No. DA 344/2014/A to add a roof top terrace to an approved three storey dwelling is approved, subject to the consolidated conditions of consent at Annexure "A". 3. The exhibits, other than exhibits 2 and F, are returned. Catchwords: MODIFICATION APPLICATION: consent orders; roof top terrace; impact on views and privacy; height. Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Category: Principal judgment Parties: Alexakis Building Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: Ms J. Reid barrister (Applicant) Mr S. Patterson solicitor (Respondent)

Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 11197 of 2015

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. DA-344/2014/A to modify development consent DA-344/2014 (approving the construction of a three storey dwelling over basement parking and granted on 14 January 2015) to add a roof top terrace and access stair under a sliding skylight (the proposal), at 11 Loombah Road, Dover Heights (the site) by Waverley Council (the Council). 2. The appeal was subject to mandatory conciliation on 4 April 2016 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Following the commencement of the hearing, the applicant was granted leave by the Court to tender an amended proposal (exhibit F) and on the basis of the amendments made to the proposal, the Council agreed to enter into consent orders.