D’Alterio v Newcastle City Council [2017] NSWLEC 1058

Land and Environment Court New South Wales

Medium Neutral Citation: D'Alterio v Newcastle City Council [2017] NSWLEC 1058 Hearing dates: 23, 24 January 2017 Date of orders: 15 February 2017 Decision date: 15 February 2017 Jurisdiction: Class 1 Before: Dickson, C Decision: 1. The appeal is upheld; 2. The Court determines to vary the Section 88B Restriction on the use of Lot 42 DP1160807 3. Consent is granted to Development Application No. DA/2016/00159 for a new two storey dwelling, associated swimming pool and site works at 46 Kilgour Avenue, Merewether (Lot 42 DP1160807), subject to the conditions in Annexure A including the following additional condition: a. No structures, plant or the like are to exceed the maximum roof RL of 29.590 shown on the architectural plans prepared by Fearon Hay Architects, detailed in condition 1 of this consent. 4. The exhibits are returned with the exception of 1, 3, 9, A, and B. Catchwords: DEVELOPMENT APPEAL: non- compliance with height required by title restriction imposed by subdivision – intent of restriction on title – role of Section 88b instrument in the proceedings – effect of proposed development on the significance of the heritage item – impact on views from neighbouring properties. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55: Remediation of Land State Environmental Planning Policy 71: Coastal Protection Cases Cited: Tenacity Consulting v Warringah [2004] NSW LEC 140 Zhang v Canterbury City Council [2001] NSWCA 167 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Arnott v Sydney Council [2015] NSWLEC 1052 Takchi v Hornsby Shire Council [2007] NSWLEC 597 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004]HCA59 Chehab v Canada Bay Council [2002] NSWLEC 220 Texts Cited: Nil Category: Principal judgment Parties: Francis D'Alterio and Cornelia D'Alteri (Applicant) Council of the City of Newcastle (Respondent) Representation: Counsel: A. M Pickles SC (Applicant) R O'Gorman Hughes (Respondent)