Danidis v Council of the City of Ryde Council [2019] NSWLEC 1073

Land and Environment Court New South Wales

Medium Neutral Citation: Danidis v Council of the City of Ryde Council [2019] NSWLEC 1073 Hearing dates: 1 February 2019 Date of orders: 19 March 2019 Decision date: 22 February 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: Directions (see [44])

Orders (see [48]) Catchwords: BUILDING INFORMATION CERTIFICATE APPLICATION: Secondary dwelling; height of building; dwelling 'as built' differs from approved plans. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Gosling v Penrith City Council [2016] NSWLEC 1288 Texts Cited: Ryde Development Control Plan 2014 Category: Principal judgment Parties: Poppy Danidis (Applicant) Council of the City of Ryde (Respondent) Representation: Solicitors: C Rose, Swaab Lawyers (Applicant) P Kapetas, Sutherland Shire Council (Respondent) File Number(s): 2018/361350 Publication restriction: No

Judgment 1. COMMISSIONER: Poppy Danidis (the Applicant) has appealed the refusal of the Council of the City of Ryde (the Respondent) to issue a Building Information Certificate (No. BC2018/0032) in relation to works carried out under Development Consent LDA 2017/0260 (dated 30 November 2017) and Constructions Certificate CC18/2/1 (issued on 27 March 2018), concerning the construction of a secondary dwelling (the proposed development) at 32 Morrison Road, Gladesville (the Subject Site). 2. The Subject Site is: 1. located on the south eastern side of Morrison Road; 2. has an area of 613m2; and 3. is zoned R2 Low Density Residential under Ryde Local Environmental Plan 2014 (RLEP). 1. The proposed development is for construction of a secondary dwelling through the addition of a first storey above an existing garage at the rear of the Subject Site, and which would include: 1. two bedrooms; 2. a lounge room; 3. a bathroom/laundry; and 4. a kitchen; 1. This appeal concerns the Respondent's refusal to issue a building information certificate under Part 6 of the Environmental Planning and Assessment Act 1979 (EP&A Act), subject to the provisions of s 8.25 of the EP&A Act. 2. The appeal is heard under s 34(4)(b)(i) of the Land and Environment Court Act 1979 (LEC Act). 3. The Court convened a conciliation conference with the Parties, which was held on-site and at Court, on 1 February 2019. 4. During the on-site view the following individuals, who had both made written submission to Council in response to notification of the proposed development, made oral submissions to the Court in relation to the appeal: 1. Mr Todd Percy, an owner and resident of a lot adjoining the side of the Subject Site, who said that: 1. during the construction of the secondary dwelling he had made 'a series of objections'; 2. the impact of the breach of the approved height, and encroachment of the secondary dwelling into the approved side setback, should not be accepted as it gave rise to unacceptable impacts on his property; 3. the impacts created by the 'as built' height and side setback breaches compared to the height and side setback in the approved plans would include increased overshadowing of his property; 4. he wished to see the 'as built' secondary dwelling modified such that it would comply with the approved plans for the development. 1. Mr Dan Concannon, an owner and resident of a lot to the rear of the Subject Site, who said that: 1. he was concerned that the windows at the rear of the upper storey of the proposed development would enable a resident of that structure to look into his rear yard; 2. he was concerned that the breach of height of the secondary dwelling compared to the height in the approved plans would impact on his property, particularly in relation to overshadowing; 3. he also wished to see the 'as built' secondary dwelling modified such that it would comply with the approved plans for the development.