Farrell Coyne v Woollahra Council - [2008] NSWLEC 1387

Land and Environment Court

of New South Wales

CITATION: Farrell Coyne v Woollahra Council [2008] NSWLEC 1387

PARTIES:
Applicant:
Farrell Coyne Projects Pty Ltd
Respondent:
Woollahra Council

FILE NUMBER(S): 10504 of 2008

CORAM: Roseth SC

KEY ISSUES: Development Application :- view impact

CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Veloshin v Randwick City Council [2007] NSWLEC 428

DATES OF HEARING: 26 September 2008

DATE OF JUDGMENT:
8 October 2008

LEGAL REPRESENTATIVES: Applicant:
Mr G Green, solicitor of Pikes Lawyers
Respondent:
Mr P Rigg, solicitor of Deacons

JUDGMENT:

- 8 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 October 2008

10504 of 2008 Farrell Coyne Projects Pty Ltd v Woollahra Municipal Council

1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to demolish the existing building and erect a three-storey dwelling house on lot 1 DP 958468, known as 3 Vaucluse Road (and also 2A Gilliver Avenue), Vaucluse.

2 The site has an area of 800.7m2.. It has two frontages: to the west to Vaucluse Road and to the east to Gilliver Avenue. It falls about 8m from east to west. To the south is 1 Vaucluse Road, on which a new house is under construction. The surroundings are mostly single houses, of which the old ones are modest in size, while the recently built ones are anything but. There is a sprinkling of old apartment buildings.

3 The applicant proposes to demolish the existing structures on the site and erect a new house on three levels, with two double garages, one from Gilliver Avenue and one from Vaucluse Road. The proposal is single-storey from Gilliver Road and three-storey from Vaucluse Road.

Relevant planning instruments and policies

4 Local Environmental Plan 1995 (the LEP) zones the site 2(a). The LEP establishes a maximum height of 9.5m for the site, which is a development standard with which the proposal complies. It also establishes a maximum Floor Space Ratio (FSR) of 0.55:1 for the site. The proposal has a FSR of 0.72:1.

5 Residential Development Control Plan (the DCP), which deals with the number of storeys at C4,14.7.3 as follows:

Development is to have a maximum height of two storeys. Where the landform of a site falls more than two metres from the street to the rear of a property, an additional basement storey may be permitted, provided that all other RDCP controls are met.

6 State Environmental Planning Policy 1 – Development Standards (SEPP 1) under which the applicant has submitted an Objection to the strict application of the FSR development standard of 0.55:1.

7 In its Statement of Contentions the council listed four matters, of which the last is the objectors’ concerns. Of the other three matters, only the first one was pressed at the hearing, namely that the height, bulk and scale of the proposal will have a detrimental impact on views from 1, 3, 3A and 5…

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.

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Details

Case: [2008] NSWLEC 1387
Decision Date: 8 October 2008

CaseChat Overview and Summary

Farrell Coyne Projects Pty Ltd (the applicant) sought approval for a development application to demolish the existing building on a property at 3 Vaucluse Road, Vaucluse and erect a three-storey dwelling house. Woollahra Municipal Council (the council) refused the application and the applicant appealed to the Land and Environment Court of New South Wales. The key issue before the Court was whether the development application should be approved. In considering this issue, the Court had to consider the impact of the proposal on views from neighbouring properties. The applicant argued that the proposal should be approved as it was and that lowering the building would spoil views from the upper floor. The council argued that the proposal should be 1.2m lower to prevent the detrimental impact on views from the neighbouring properties. The Court found that the view impact of the proposal was acceptable and there was no justification to require it to be lowered. The appeal was upheld and the development application was approved subject to conditions in Annexure A.

Orders