Dale v Woollahra MC - [2006] NSWLEC 86

Land and Environment Court

of New South Wales

CITATION: Dale v Woollahra MC [2006] NSWLEC 86

PARTIES:
APPLICANT
Brett Anthony Dale
and
Emma Claudine Dale
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 10633 of 2005

CORAM: Hoffman C

KEY ISSUES:
Development Application :- To demolish a house and erect a new house - floor space ratio - loss of harbour views for the neighbours and general public - streetscape - bulk and scale - landscaping
shadows
location of garages.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003

CASES CITED: Tenacity v Warringah MC [2004] NSWLEC 117

DATES OF HEARING: 12/12/2005

DATE OF JUDGMENT:
03/02/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr I. Hemmings, barrister
instructed by Mr A. McMurran, solicitor
of Heidtman & Co.
RESPONDENT
Mr M. Connell, solicitor
of Home Wilkinson Lowry Lawyers incorporating Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

2 March 2006

10633 of 2005 Brett Anthony Dale and Emma Claudine Dale v Woollahra Municipal Council
JUDGMENT

1 This is a Class 1 appeal No. 10633 of 2005 between Brett and Claudine Dale and Woollahra Municipal Council in regard to the refusal of the proposal to demolish an existing two-storey house with a room-in-the-roof bedroom third-storey and detached garage at No. 134 Hopetoun Avenue, Vaucluse and to erect a two-storey and part three-storey house with internal two car garage off the avenue and a swim pool in the rear yard with a detached single car garage off Sassafras Lane. The block runs east-west between the avenue and the lane.

2 On the south of the site is No. 132 Hopetoun Avenue. It is a two-storey house. There is an existing heavy band of boundary vegetation just inside the subject lot along the southern boundary. Adjacent at No. 132 on the ground floor are north facing windows to a kitchen, a dining area and a living room. The living room also has extensive west facing windows towards the harbour view. There also exists a recess in the north wall of No. 132 adjacent the kitchen and dining area that provides a small courtyard.

3 The part third floor of the proposal is below the ground floor facing the rear yard. It occupies an area about 2/3 of the ground floor above. The house appears as two-storey to Hopetoun Avenue due to a slope in the land of about 4 m from Avenue to Lane way.

4 On the north of No. 134 is No. 136 Hopetoun. It is a one and part two-storey house facing the Avenue. There were no objections to the proposal from that property.

5 Behind No. 136 was another house at No. 136A on a battleaxe lot having a driveway up to Hopetoun, but the house faced Sassafras Lane. The proposed new detached single garage of the proposal is adjacent the boundary with No. 136A. There is also thick vegetation in a band along the northern boundary inside the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dale v Woollahra MC

Details

AGLC: Dale v Woollahra MC [2006] NSWLEC 86
Case: [2006] NSWLEC 86
Decision Date: 03/02/2006

CaseChat Overview and Summary

The case of Dale v Woollahra Municipal Council involved an appeal against the refusal of a development application by Brett and Emma Dale. The applicants sought to demolish an existing two-storey house with a room-in-the-roof bedroom and a detached garage at No. 134 Hopetoun Avenue, Vaucluse, and to erect a new two-storey and part three-storey house with an internal two-car garage, a pool in the rear yard, and a detached single-car garage off Sassafras Lane. The Woollahra Municipal Council refused the application, citing issues such as excessive bulk and scale, loss of harbour views, and non-compliance with the Woollahra Local Environmental Plan 1995 and the Woollahra Residential Development Control Plan 2003. The Land and Environment Court of New South Wales heard the appeal and considered various factors, including the floor space ratio, streetscape, building size, and landscaping. The Court ultimately determined that the proposal's design and scale were inconsistent with the objectives of the Woollahra LEP and the WRDCP. The Court found that the proposal's excessive floor space ratio, insufficient side boundary setbacks, and visual bulk unreasonably reduced existing view corridors and impacted neighbouring properties. Furthermore, the Court held that the proposal's design did not comply with the objectives of view sharing, building size, and location performance criteria. As a result, the Court dismissed the appeal and upheld the Council's decision to refuse the development application.

Orders