Gurr v Waverley Council

[2019] NSWLEC 1548

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gurr v Waverley Council [2019] NSWLEC 1548
Hearing dates:	24-25 October 2019
Date of orders:	13 November 2019
Decision date:	13 November 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	Proceedings 2018/352509 The Court orders: (1)   The appeal is dismissed. (2)   Development consent for modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999 is refused. (3)   All exhibits are returned, except for Exhibits E, F, 7 and 9.  Proceedings 2019/155188 The Court orders: (1)   The appeal is dismissed. (2)   Development consent for Development Application DA-448/2018 for works associated with a trafficable roof terrace and glass balustrade is refused. (3)   All exhibits are returned, except for Exhibits E, F, 7 and 9.
Catchwords:	DEVELOPMENT APPEAL – modification of consent – exceedance of height – privacy impacts – view loss
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality in Residential Apartment Development Waverley Local Environmental Plan 2012
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Meriton v Sydney City Council (2004) 140 LGERA 144; [2004] NSWLEC 313 Steele v Waverley Council [2018] NSWLEC 1659 Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Apartment Design Guide Waverley Development Control Plan 2012 (Amendment No. 5) Waverley Development Control Plan 2012 (Amendment No. 6)
Category:	Principal judgment
Parties:	Gregory Gurr (Applicant) Waverley Council (Respondent)
Representation:	Counsel: D Briggs (Solicitor) (Applicant) M Hudson (Solicitor) (Respondent)   Solicitors: D.G Briggs and Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/352509; 2019/155188
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr Gregory Gurr is the owner of Apartment 3 at 467 Bronte Road, Bronte. He brings an appeal under s 4.55 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) against the deemed refusal by Waverley Council (the Respondent) of modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999, referred to by the parties as Appeal 1.

2. In the alternative, Mr Gurr appeals the deemed refusal by the Respondent of Development Application DA-448/2018 under s 8.7 of the EPA Act for works associated with a trafficable roof terrace and glass balustrade, referred to by the parties as Appeal 2.

3. As Appeal 1 relates to consents previously granted, it is useful to first set out the agreed chronology as it appears in the Respondent’s Bundle, marked ‘Exhibit 4’.

Evolution of appeals

4. The site is identified behind Tab 4, Exhibit 4 as Lot 11 of SP63729 which includes a top floor dwelling and roof space in a mixed use development on the southern side of Bronte Road, fronting Bronte Park.

5. Consent for a mixed use development comprising retail on ground floor and 3 x 3 bedroom apartments was granted by the Respondent on 20 April 1999 (Exhibit 4, Tab 3).