Flanagan v Woollahra MC - [2005] NSWLEC 387

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Flanagan v Woollahra MC [2005] NSWLEC 387

PARTIES:
APPLICANT
Patricia Anne Flanagan and
Thomas James Flanagan

RESPONDENT
Woollahra Municipal Council

CASE NUMBER: 11417 of 2004

CATCH WORDS: Appeal

LEGISLATION CITED:
Watsons Bay Heritage Conservation Area Development Control Plan
Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
State Environmental Planning Policy No. 55
State Environmental Planning Policy No. 56
Sydney Harbour Foreshores and Tributaries
Sydney Regional Enviornmental Plan No. 23
Woollahra Development Control Plan
State Environmental Planning Policy No. 1

CORAM: Hoffman C

DATES OF HEARING: 24/03/2005, 25/05/2005

EX TEMPORE DATE: 05/07/2005

LEGAL REPRESENTATIVES

APPLICANT
Ms J. Jagot, barrister
of Maddocks

RESPONDENT
Ms J. Hewitt, solicitor
of Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hoffman C
5 July 2005
11417 of 2004 Patricia Anne and Thomas James Flanagan v Woollahra Municipal Council

JUDGMENT

This is a Class 1 appeal No. 11417 of 2004, between P A and T J Flanagan and Woollahra Municipal Council, in regard to the deemed refusal of consent for a two and part three-storey dwelling with attached garage at the street front, and a swimming pool at the waterfront, of the allotment at No. 10 Pacific Street, Watsons Bay.

The council had approved a similar development on the site under consent DA 962/2002/1. The main two-storey house was set a little closer to the water than its neighbours in that consent, which was under challenge, so that the applicant had lodged another application which is the one that comes to the Court as a deemed refusal.

The lowest floor of the proposal is a semi-basement that has access to daylight and air on its southern side because the land falls away down to the water. It is set behind the foreshore building line for the most part, except a small triangular section is forward of the foreshore building line by about 3 m. The foreshore setback of the basement is designed to coincide with an existing old stone retaining wall, that is also partly in front of the foreshore building line. The retaining wall rises several metres high up to the flat part of the lot that runs northwards to Pacific Street. The two-storey main component of the house sits on this plateau, as does the neighbouring houses at No. 8 on the east, and No. 12 on the west.

Number 8 is three-storeys in its main component but has also taken advantage of the fall down to the water to have a semi-basement room in a fourth level with doors and windows to the south onto a swimming pool terrace area about 1 m above high water mark. There is a sea wall that goes around the foreshore in front of several properties in Pacific Street. It creates for most houses a lower terrace beside the water. Several have swimming pools at that level, and their jetties take off from the terraces. The approved house on No. 10 had a…

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 Flanagan v Woollahra MC

Details

AGLC: Flanagan v Woollahra MC [2005] NSWLEC 387
Case: [2005] NSWLEC 387
Decision Date: 5 July 2005

CaseChat Overview and Summary

The case of Flanagan v Woollahra MC was a Class 1 appeal heard by the Land and Environment Court of New South Wales. The applicants, Patricia Anne and Thomas James Flanagan, sought approval for a two-and-a-half-storey dwelling with an attached garage at the street front and a swimming pool at the waterfront of their allotment at No. 10 Pacific Street, Watsons Bay. The appeal was against the deemed refusal of consent by Woollahra Municipal Council. The applicants had previously received approval for a similar development under consent DA 962/2002/1, but the new application had been modified to address objections and concerns raised by neighbours and the council.

The court considered several issues related to the appearance and impact of the proposed development on the harbourfront setting, privacy concerns, floor space ratio, and the setting of the Watsons Bay Heritage Conservation Area. The applicant's proposed design was modified during negotiations, and the final plans showed a reduced floor space ratio and a modified basement and swimming pool area. The court observed the site and neighbouring properties from various vantage points to assess the appearance and impact of the proposal.

The court found that the amended proposal was acceptable in terms of its appearance, privacy, overshadowing, and landscaping. However, certain conditions were required to address specific concerns. The court proposed amendments to the conditions suggested by the respondent to balance the interests of the applicants, neighbours, and the council. For instance, the court deleted a condition requiring a higher basement floor level, as it would not significantly affect the visual impression of the house from the harbour. The court also modified conditions related to the setback of the ground and first floor levels, the width of the first floor balcony, and the height of the sea wall and swimming pool.

In its final orders, the court upheld the appeal and granted consent for the proposed development, subject to the modified conditions outlined in Annexure A. The court also returned certain exhibits to the parties and made no order as to costs, considering the difficult nature of the development application and the applicants' efforts to address concerns.

Orders