Balaz v Woollahra Council

[2005] NSWLEC 246

Land and Environment Court

of New South Wales

CITATION:

Balaz v Woollahra Council [2005] NSWLEC 246

PARTIES:

APPLICANT
Nevenka Balaz

RESPONDENT
Woollahra Council

FILE NUMBER(S):

10058 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- Consent Orders - demolition of existing dwelling and the subdivision of land into three lots - impact on character of area - impact on views - impact on views from harbour.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan 23
Woollahra Local Environmental Plan 1995

DATES OF HEARING:

21/04/2005

EX TEMPORE JUDGMENT DATE:

04/21/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Craig, QC
SOLICITORS
Abbott Tout

RESPONDENT
Mr G. Bingham, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 April 2005

10058 of 2005 Nevenka Balaz v Woollahra Council

JUDGMENT

1 This is an appeal against a refusal of DA 561/2004 by Woollahra Council (the council) for the demolition of an existing dwelling and the Torrens Title subdivision of the land into three lots at No. 20 Tivoli Avenue, Rose Bay (the site).

2 The site has a northwest side boundary of 72.4 m, a southeast side boundary of 71.1 m, a northeast boundary to Tivoli Avenue of 20.4 m, and a southwest boundary to Sydney Harbour of 39.86 m, giving a total area of 2,125 sq m.

3 The proposal seeks to create three Torrens Title lots. Lot 1 is located at the Tivoli Avenue frontage and has an area of 775 sq m. The lot is burdened by a Right of Way over the north eastern boundary that provides access to lots 2 and 3 that have frontages to the harbour. Lot 2 is 710.5 sq m, and is also burdened by the Right of Way for access to lot 3. Lot 3 has an area of 675 sq m. Hypothetical dwelling designs were provided for each lot (see Attachment 1).

4 The site is zoned Residential 2(a) within the Woollahra Local Environmental Plan 1995 (the LEP). The subdivision of land is permissible within the zone and the minimum lot size is 675 sq m. There was no dispute that the three lots satisfied this requirement, including the exclusion of areas used for a Right of Way.

5 Sydney Regional Environmental Plan No. 23 (SREP 23) also applies and requires the Court to consider the impact of the proposed development upon Sydney Harbour and adjoining foreshore areas.

6 The council filed a Statement of Issues containing seven issues however, prior to the hearing the council resolved to enter into consent orders.

7 The parties agreed to the appointment of Mr Terry Burns as the Court Appointed Town Planning Expert. In his assessment there were no reasons that could support the refusal of the application.

8 In accordance with the Court’s Practice Direction - Consent Orders, objectors may seek leave to be heard in the Court’s consideration of the consent orders. In this regard Mr and Mrs Lasse of No. 1/14 Tivoli Avenue and Mr and Mrs Camuglia of No. 2/14 Tivoli Avenue, sought to be heard through consultant town planner, Mr Jim Rennard. Their concerns related to the potential view loss, the impact on the character of Tivoli Avenue and the unacceptable impact on the harbour side location.

9 Mr Potts of No. 20 Tivoli Avenue, also sought to be heard through the consultant town planner, Mr Nick Juradowitch. The concerns expressed by Mr Juradowitch were similar to those of Mr Rennard. Mr Juradowitch also sought an additional condition that placed restrictions on future buildings on each of the proposed lots. These restrictions generally related to the proposed hypothetical dwelling designs.

10 In considering the matters raised by Mr Rennard and Mr Juradowitch, an inspection was taken from each of the residences and an estimate made of the potential locations for dwellings on the proposed lots.

11 With the benefit of these inspections I can comfortably conclude that the impact on views is extremely small, at best. Any loss of views will be at the periphery of panoramic 180 degree views currently available. The significant views to Rose Bay and the existing views to the Sydney CBD will not be affected. There is also the likelihood that viewing opportunities will be increased from the nearby properties because of the demolition of the existing dwelling and its likely replacement with a less obtrusive building form.

12 In terms of character, the general thrust of the residents’ argument was that the site should be developed into two lots rather than the three lots, as proposed. Additionally the dwellings should be located closer to Tivoli Avenue so that the area closer to the Sydney Harbour is retained in its natural state.

13 In considering this, the question the Court must answer is whether the subdivision, as proposed, is acceptable, and not whether there is a better subdivision layout. In my view, some considerable weight must be given to the application’s compliance with the council’s planning controls, principally the minimum lot size. While it was suggested that these controls are not suitable for foreshore development, I must assume that the council, in adopting the controls, has come to the opposite conclusion.

14 It would be clearly inappropriate for the Court to dismiss the council planning controls simply because it thought they were not appropriate for this area. I am mindful that the foreshore building line is unaffected by the proposed subdivision.

15 I also accept that the proposed subdivision (and the future erection of appropriate dwellings on the lots) will not have an adverse impact on the character of Tivoli Avenue, or when viewed from the harbour through the requirements in SREP 23. Again, the compliance with the minimum lot size requirements would suggest that the subdivision would reflect the character anticipated by the council’s planning controls.

16 Considering the current subdivision layout of the area, I have little trouble in concluding that the proposal will have little or no affect on this subdivision pattern. The dwellings that are likely to be constructed on the proposed lots will be subject to individual development applications. The impact of any future dwellings on adjoining properties and the harbour are more appropriately left to this stage.

17 Despite the submissions of Mr Juradowitch and Mr Rennard, I do not propose to constrain any future development through conditions that are based on the hypothetical dwelling designs. These were clearly submitted only as part of the subdivision application to indicate that a dwelling can be located on each of the lots.

18 I accept that the hypothetical dwellings satisfactorily address this requirement to the point where restrictions are not required. I also accept that the site provides no environmental or other constraints that would require a specific dwelling design to be tied to each lot.

19 There was disagreement over the inclusion of advisory requirements in the draft conditions. It was agreed that they did not form part of the conditions of approval, but as they provide some direction for future applicants I accept that they may be retained for advisory purposes only.

20 For the reasons in the preceding paragraphs there are no reason why the consent orders should not be made.

21 The orders of the Court are :

1. The appeal is upheld.
2. Development application 561/2004 for the demolition of an existing dwelling and the subdivision of 20 Tivoli Avenue, Rose Bay, into 3 lots is approved subject to the conditions in Annexure “A”.
3. The exhibits may be returned with the exception of Exhibits 1, 2, A and B.

________________________
G T Brown
Commissioner of the Court