Cuthbert and Rowe v Woollahra Municipal Council

[2004] NSWLEC 373

Land and Environment Court

of New South Wales

CITATION:	Cuthbert and Rowe v Woollahra Municipal Council [2004] NSWLEC 373
PARTIES:	APPLICANT Scott Gordon Cuthbert and Belinda Rowe RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10279 of 2004
CORAM:	Murrell C
KEY ISSUES:	Development Application :- alterations and additions - construction of a new garage
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	27/05/2004
EX TEMPORE JUDGMENT DATE :	06/01/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Tomasetti, barrister RESPONDENT Mr M Connell SOLICITORS Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

1 June 2004

10279 of 2004 Scott Gordon Cuthbert and Belinda Rowe v Woollahra Municipal Council

JUDGMENT

This determination was given extemporaneously
and it has been edited prior to publication

1 This matter that came before me as consent orders last Thursday. The Court met on-site with the parties and the council advised its concerns had been overcome by amended plans and that the applicant. It was noted on the view that the original objectors to the proposal being the two neighbours: Mr and Mrs White of 34 Bathurst Street; and the adjoining neighbours to the south, Mr and Mrs Harvey, that their concerns had also been taken into consideration with the amended plans.

2 The proposal is for the alterations and additions to the existing property known as 39 Bathurst Street, Woollahra. The alterations and additions are for an upper level to the dwelling, which is well set back from the street level and for the excavation of the existing front boundary wall to provide a double garage for the premises, and some landscaping and a rooftop area to that garage.

3 It is noted that the driveway crossing is considered by council to be appropriate and the proposed driveway crossing retains two of the three trees that are in front of the subject property. It is also noted that whilst the removal of a tree was an original concern of the council, council has plans for the replacement of the trees on the footpath, Brush Boxes to be replaced eventually throughout the street with the species Queensland Wheel of Fire. The Council raises no objection to the planting of such a species in the footpath by the applicant, which concurs with its plans for the streetscape area.

4 The Court is satisfied that there is no reason why it should not enter into the consent orders as proposed by the council. It is noted for the record the development application has a long background. However there have been amendments to the development application and the Court, is of the opinion that the amended proposed development is one that will sit comfortably in the streetscape.

5 It was pointed out by the council that this is within a conservation area and I am satisfied that the development is a sympathetic one in that regard. It is also noted that many of the dwellings on the high side of the road, as this particular property is, have garages excavated into the retaining walls that adjoin the footpath and the development here will sit comfortably in the streetscape.

6 The proposed development, in the Court’s assessment, is one that is in many respects more sympathetic than many of the existing garage openings in the wall, which is also noted by the council.

7 The materials, finishes and colours are satisfactory in terms of the heritage conservation of the area and in this regard I also agree with council’s assessment of the application.

8 The applicant and the council have agreed on an amended set of conditions for the development application and the Court is satisfied that those conditions are satisfactory in terms of the resultant outcome of the development for the property at 39 Bathurst Street, Woollahra.

9 Accordingly, on the basis of the evidence to the Court, I see no reason why the consent orders should not be entered into, and the formal orders of the Court are

1. The appeal in respect of the property known as 39 Bathurst Street, Woollahra, is upheld.
2. Development Application DA 02/0793 is granted consent for excavation of front garden to allow construction of a new double garage and alterations and additions to existing residence to provide new first floor addition subject to the conditions in Annexure ‘A’ annexed hereto.
3. The exhibits except Exhibits “A” and “B” are returned.

____________________
J S Murrell
Commissioner of the Court
Rjs/ljr