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INSPECTION COMMITTEE
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ENVIRONMENTAL SERVICES DIVISION REPORT NO.
36
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3 NOVEMBER 2007
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Inspection Committee
at the Meeting 3 November
2007
16/10/2007 to Inspection Committee
Environmental Services Division Report No. 36
Subject: 24E and 26 Upper Cliff Road,
Northwood
Record No: DA05/46 - 30889/07
Author(s): Peter
Thomas
Executive Summary
Council under
delegation, refused a development application for alterations and additions to
an existing dwelling house, including the building of a gym with a laundry,
swimming pool, deck and carport with storage within a bushland buffer zone. The
proposal also included a boundary adjustment.
The determination was
appealed by the applicant and this has been on-going as detailed in the
following report.
This application has
been referred to the Inspection Committee at the request of the Mayor;
Councillor Longbottom, to acquaint Councillors with the various issues related
to the proposal and status of the current legal action.
Background
· 2 March
2005
Development
application DA46/05 lodged for a boundary adjustment and the building of a gym
with a laundry, swimming pool , deck and carport with storage. The proposal also sought alterations and
additions to the existing dwelling house.
(See Site Plan and elevations AT1)
· 7 March
2005
The
application was notified and 5 submissions (one support and 4 objections) were
received. The submissions were from:
o Lane Cove
Bushland and Conservation Society (objection)
o 24A Upper Cliff Road
(support)
o 28 Upper Cliff Road
(objection)
o 24F Upper Cliff Road
(objection)
o 24D Upper Cliff Road
(objection)
· The
application was referred to various Council professionals for comment,
including the Manager Bushland. The
Manager Bushland did not support the proposal, as it was considered contrary to
DCP 1 – Bushland, State Environmental Planning Policy 19 – Bushland in Urban
Areas and Council’s LEP (Clause 11(3)).
· 30 August
2005
The application was
refused under delegated authority. (See AT2 for report)
· 4
September 2006 Council
Council
was served with an Appeal against Council’s refusal of the development
application.
· 13 April
2007
The
application was heard by Commissioner Watts, and was dismissed as a result of
the (potential) adverse impact of the proposal on the bushland and buffer. (See AT3
for Judgement)
· 11 May
2007
Council
was advised of a Section 56A Appeal by the applicant’s solicitor. The appeal was submitted on the basis:
“the commissioner has erred in law in his
interpretation and application of the term “bushland” as defined in DCP 1”
· 17
September 2007
The matter
was heard by Justice Jagot. Justice
Jagot upheld the Appeal. The matter has
now been referred back to the Land and Environment Court for review in light of the
judgement. (See AT4 for details of the Appeal and the Judgement)
o 28 September 2007
An e-court
directed that the applicant is required to file and serve any further evidence
by 8 November, 2007. Council is to file
and serve any evidence in response by 7 December, 2007. The matter is set for hearing on 3-4 January
2008.
Conclusion
The determination of the development proposal had
regard to Council policy and was refused under delegation. The appeal by the applicant while initially
dismissed was found to be flawed due to an anomaly between the LEP and
DCP1. The matter has been referred to
the presiding Commissioner of the Court for review and final determination.
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RECOMMENDATION
That Council receive and note the report and
attachments.
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Michael Mason
Executive Manager
Environmental Services Division
ATTACHMENTS:
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AT‑1 View
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Copy of Site Plan and
elevations
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3 Pages
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AT‑2 View
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Delegated Authority Report
No.238
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13 Pages
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AT‑3 View
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Copy of Land & Environment Court
Judgement
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10 Pages
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AT‑4 View
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Copy of L&E Court
Judgement
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27 Pages
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INS031107ES_36.doc
***** End of Environmental Services Division
Report No. 36 *****
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INSPECTION COMMITTEE
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3
NOVEMBER 2007
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Inspection Committee
at the Meeting 3 November
2007
29/10/2007 to Inspection Committee
Environmental Services Division Report No. 458
Subject: S96 - 27 Upper Cliff Road,
Northwood
Record No: DA03/410-1 - 32582/07
Author(s): May Li
Property: 27 Upper Cliff Road,
Northwood
Section 96 Modification Application No: DA410/03B
Date Lodged: 9
October 2007
Cost of Work: $1000.00
Owner : G
& S Dwyer
Author: May
Li
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DESCRIPTION OF
PROPOSAL TO APPEAR ON DETERMINATION
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Section 96
Modification to amended Condition 3 of Development Consent 410/2003 relating
to the requirement for a privacy screen
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ZONE
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2(a2) – Residential
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IS THE PROPOSAL
PERMISSIBLE WITHIN THE ZONE?
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Yes
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IS THE PROPERTY A
HERITAGE ITEM?
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No
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IS THE PROPERTY
WITHIN A CONSERVATION AREA?
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No
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DOES DCP 1-
BUSHLAND APPLY TO THE PROPERTY?
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No
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BCA CLASSIFICATION
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Class 1a
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STOP THE CLOCK USED
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No
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NOTIFICATION
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Neighbours:
29, 38, 40, 40A, & 42 Upper Cliff Road, 1A & 2 Private Road,
Northwood
Ward Councillors:
Hassarati, Freedman & Smith
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REASON FOR REFERRAL:
The Section 96
application has been called to the Inspection Committee by Councillor Smith due
to the concerns of applicant for the requirement for a privacy screen on the
rear deck.
EXECUTIVE SUMMARY:
Development
Application 410/2003 for the demolition of the existing dwelling house and
construction of a two storey dwelling house was conditionally approved on 11
July 2005.
Condition 3 of the
development consent requested a 1.6m high privacy screen be erected on the
south-eastern elevation of the rear balcony on the first floor.
The Section 96
Modification application seeks the removal of the privacy screen on the first
floor and erection of a free standing privacy screen adjacent to the existing
eastern boundary fence at the rear of the property.
As a result of a
complaint and following the inspection of the property it should be noted that
the privacy screen has been removed without Council consent.
SITE:
The subject site is
located at the south western corner of Private Road and Upper Cliff Road, Northwood. A recently completed two storey dwelling
house is located on the subject site.
Surrounding development comprises a mixture of single and two storey
dwelling houses.
PROPOSAL:
The
Section 96 Modification proposal involves the following amendments to the
original development consent:
· Deletion of the privacy
screen on the south-eastern elevation of the rear balcony on the first floor of
the dwelling house.
· An offer by the applicant
to erect a free standing timber lattice privacy screen adjacent to the eastern
boundary fence at the rear of the property.
The privacy screen would be 600mm higher than the existing boundary
fence.
Refer
to AT1 for the plan of the proposal.
PREVIOUS
APPROVALS/HISTORY:
Development
Application 410/2003 for demolition of the existing dwelling house and
construction of a two storey dwelling house was conditionally approved on 11
July 2005.
A Section 82A Review
Application for the review of Condition 1a of the development consent relating
to the traffic management of the subject site was approved by Council on 20
September 2005.
Development
Application 374/2004 for the construction of an in-ground swimming pool was
conditionally approved on 29 December 2005.
PARTICULARS
Condition 3 of
Development Consent 410/2003 states as the follow:
“3. In order to minimise the
privacy impacts as a result of the second storey balcony, a privacy screen is
to be affixed to the south-eastern elevation having a minimum height of
1.6m. Details are to be submitted to
Council PRIOR TO THE ISSUANCE OF THE
CONSTRUCTION CERTIFIVATE.”
Officer’s
Comment
The
rear balcony is off a bedroom and is located approximately 7.2m from the
south-eastern boundary of the property.
The privacy screen was originally provided as a precautionary measure
when the original application was approved.
Now, given the design of the building particularly the solid masonry
ground floor pergola elements of the building which act as a de facto privacy
screen to the adjoining site, and the fact that any impact can be readily
assessed, the applicant has requested a review of the required privacy screen.
A site inspection has revealed
that the overlooking impact from the south-eastern elevation of the rear
balcony on the first floor is minor and erection of the 1.6m privacy screen is
not warranted.
REFERRALS:
The Section 96
Modification proposal relates to the privacy screen only. No referral is required.
Lane Cove LOCAL Environmental Plan 1987 (Section 79c(1)(a))
It is considered that
the Section 96 proposal complies with the aims and objectives of Lane Cove
Local Environmental Plan 1987.
Other Planning Instruments
Lane Cove Code for
Dwelling Houses, Fences, Private Swimming Pools and Outbuilding
It
is considered that the Section 96 proposal complies with the requirements of
the Code.
RESPONSE TO NOTIFICATION (Section 79C(1)(d))
The
Section 96 proposal was notified in accordance with Council’s notification
policy. A submission from the owners of the adjoining property at 29 Upper Cliff Road
was received in response to the notification of the development
application. The issues raised in the
submission can be summarised as follows:
· The condition requiring for a privacy screen was imposed to
ensure the privacy of the adjoining property and it should be retained.
· The existing boundary fence is already 1.89m high (1.55m
high fence with a 0.34m high boxed lattice).
Any further vertical extension of the fence would appear totally out of
proportion/scale with other boundary fence; it would create additional shadow
impact and cause structural impact on the existing fence and putting the safety
of residents at risk.
Officer’s Comment
The
existing bamboos along the western boundary of 29 Upper Cliff Road, Northwood have
provided a sufficient screening between the two dwelling houses. There is minimal over looking impact from the
rear balcony to the living area of 29
Upper Cliff Road.
The rear balcony is 7.2m from the south-eastern boundary of the
neighbour’s site and the over looking impact to the rear garden area of 29 Upper Cliff Road
is minimum from this side of the balcony.
The
applicant advised the assessment officer at the site inspection that the
additional privacy screen was proposed to address the concerns of the owners of
the adjoining property relating to their privacy. The erection of the additional privacy
screening could be deleted from the Section 96 proposal if the owners of the
adjoining property raised objection to the erection of the privacy screen,
which they have done.
CONCLUSION
The matters in relation to Section
79C and Section 96 of Environmental Planning and Assessment Act 1979
considerations have been considered. It
is considered that having the benefit of a site inspection following the
completion of the building work, the Section 96 amendment is considered
reasonable and the application is supported.
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RECOMMENDATION
That pursuant to
the provisions of Section 96 of the Environmental Planning and Assessment
Act, 1979, as amended, the development consent 2003/410 for the demolition of
the existing dwelling house and construction of a two storey dwelling house
at Lot 1, DP 170333 known as 27 Upper Cliff Road, Northwood is amended in the
following manner:
1. Condition 3 of Development 2003/410
is deleted.
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Michael Mason
Executive Manager
Environmental Services Division
ATTACHMENTS:
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AT‑1 View
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Section view of property
changes
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1 Page
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INS031107ES_458.doc
***** End of Environmental Services Division
Report No. 458 *****
***** END OF AGENDA *****
