Cahill & Anor v Lane Cove Council [2016] NSWLEC 1148

Land and Environment Court New South Wales

Medium Neutral Citation: Cahill & Anor v Lane Cove Council [2016] NSWLEC 1148 Hearing dates: 4, 5 April 2016 Date of orders: 26 April 2016 Decision date: 26 April 2016 Jurisdiction: Class 1 Before: Hussey AC Decision: 1. The appeal be allowed. 2. The Section 96 modification to the development consent granted for DA 153/14 for the construction of a 2 – storey dwelling house, a swimming pool and landscaping works at No 2 Birriwa Place, Northwood is allowed in accordance with the conditions in Annexure A and B. 3. The exhibits may be returned except 1, 5, 6, A, C, D, E and F. Catchwords: Modification Application; Multi level dwelling, overlooking, privacy impacts from upper level terrace, solar and amenity impacts Legislation Cited: Lane Cove Local Environmental Plan 2009;

Lane Cove Development Control Plan_2010

State Environmental Planning Policy (Building Sustainability Index) 2004. Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Category: Principal judgment Parties: David Cahill (First Applicant) Louise Cahill (Second Applicant)

Lane Cove Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant)

Solicitors: Sparke Helmore Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 11170 of 2015

Judgment

Background 1. This appeal was lodged against council's refusal of a Section 96 modification application to five of the conditions of consent imposed on a new 2 storey house, over 3 levels with swimming pool and associated landscape works at 2 Birriwa Place, Northwood. 2. The original development application was lodged in September 2014. It was initially refused and then following two section 82A reviews it was conditionally approved on 29 July 2016. Notwithstanding a further section 82A review of the conditions, the disputed conditions together with the applicant's proposed modifications are set out as follows: Condition No. Consent Condition Proposed 1 'Deletion of south-western section of the deck as marked on the plans on the top floor (ground plan). The deck shall be marked on the plans as non-trafficable. Amended Condition: Provision of a 1.2m high balustrade as detailed on the plan and the remainder of the area being non-trafficable roof area. 2 Setback of bedroom 1 and stairwell by approximately 1 metre as marked on the plan to align with the southern wall of the double garage. Condition 2 to de deleted. 3 An external privacy screen is to be installed on the stairwell window on the top floor (ground plan) level on the southern elevation to mitigate privacy impacts. Condition 3 to be deleted. Plans show timber louvered privacy screens to master bedroom and stairwell. 4 The planter box shown on the top floor (ground plan) terrace is to be deleted as shown in red on the plans. Condition 4 to be deleted, planter box removed. 5 Landscape screening is to be provided along the southern boundary adjacent to the dwelling which shall be detailed on the plans. Condition 5 to be deleted.