Gonzalez v Newcastle City Council [2019] NSWLEC 1063

Land and Environment Court New South Wales

Medium Neutral Citation: Gonzalez v Newcastle City Council [2019] NSWLEC 1063 Hearing dates: Conciliation conference on 6 February 2019 Date of orders: 14 February 2019 Decision date: 14 February 2019 Jurisdiction: Class 1 Before: Bish C Decision: See [15] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Newcastle Local Environmental Plan 2012 Texts Cited: Newcastle Development Control Plan 2012 Category: Principal judgment Parties: Yojana Gonzalez (Applicant) Newcastle City Council (Respondent) Representation: Counsel: M Seymour (Applicant) F Berglund (Respondent)

Solicitors: Keystone Lawyers (Applicant) Newcastle City Council (Respondent) File Number(s): 2018/363830 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal by Newcastle City Council of Modification Application (MA) DA2016/00983.02, which seeks the addition of a roof top viewing platform in modification of an existing approved development on Lot 34 Sec 8A DP 111244, also known as 113 Frederick Street, Merewether. 2. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979. 3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 6 February 2019. I have presided over the conciliation conference. There was one objection by an adjoining resident heard at the conciliation, which related to privacy of neighbouring outdoor space. 4. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to MA 2016/00983.02 with conditions. 5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the MA with conditions. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: s 4.55 of the EPA Act 1979; Newcastle Local Environmental Plan 2012 (NLEP 2012), specifically R2 zone objectives, cll 4.3 and 4.6; and Newcastle Development Control Plan 2012 (NDCP 2012), specifically relating to privacy and amenity. 7. The approved development, including a subsequent approved modification to the original consent, is a three storey residential dwelling. 8. The parties agree that for this MA, the breach in cl 4.3 height standard, pursuant to NLEP 2012 does not require a cl 4.6 written request for assessment, pursuant to the requirements as set out in cl 4.6. The parties also note that the approved Development Application 2016/00983 (DA) has an existing breach in the height standard. 9. The site is located within an R2 low density residential zone, pursuant to NLEP 2012. The approved development is permissible in the zone and the parties agree that the MA is not inconsistent with these objectives. The parties identified a number of other existing developments that have various forms of a roof top terrace within the surrounding neighbourhood. Therefore, the parties agree that the proposed roof top terrace is not inconsistent with the local character of the surrounding area. 10. The parties explained that the proposed terrace as shown in the amended plans for this MA is a development that is substantially the same as the DA originally granted. In addition, the parties agreed that the notification to neighbours is consistent with NDCP 2012 requirements. In response to notification, two objections were received that relate to protection of privacy and from noise. 11. The parties explained that the proposed (roof top) terrace has been designed to address any potential privacy or noise impacts to neighbouring properties thereby protecting their amenity, and that there are no adverse internal amenity impacts. The location of the terrace is adequately setback from the existing building envelope, thereby limiting visibility from the street and restricting direct sightlines into properties along Curtis Street. The terrace will be accessed via an internal lift in the location already approved that services the approved dwelling. The parties agree that the proposed roof top terrace satisfies the relevant requirements of the NLEP 2012 and NDCP 2012. 12. I am satisfied that there are no jurisdictional impediments to this agreement and that the MA based on the amended plans satisfies the requirements of ss 4.15(1) and 4.55 of the EPA Act 1979. 13. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act 1979. 14. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision. 15. The Court orders: 1. The appeal is upheld. 2. Development application to modify development consent DA2016/00983.02 seeking consent for Modification to roof to include rooftop viewing platform' on land described as 113 Frederick Street, Merewether is approved, subject to the conditions set out in Annexure "A". 3. No cost orders are made. ………………………. S Bish Commissioner of the Court Annexure A (89.9 KB, pdf) Plans (952 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2019