Heath v Woollahra Municipal Council

[2008] NSWLEC 40

Land and Environment Court

of New South Wales

CITATION:	Heath v Woollahra Municipal Council [2008] NSWLEC 40
PARTIES:	APPLICANT Timothy Clarke Heath RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	11069 of 2007
CORAM:	Brown C
KEY ISSUES:	Appeal :- demolition of an existing dwelling and deconstruction of a new dwelling, swimming pool, decks and landscaping - conditions in dispute
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	15/01/08
EX TEMPORE JUDGMENT DATE:	15 January 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

15 January 2008

11069 of 2007 Timothy Clarke Heath v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the imposition of two conditions on the approval of DA 416/2007/1 by Woollahra Municipal Council (the council) for the demolition of an existing dwelling and deconstruction of a new dwelling, swimming pool, decks and landscaping at 30 Suttie Road, Bellevue Hill (the site).

2 The proceedings were conducted as an On Site Hearing on 15 January 2008 and the judgement reflects the relevant contents of the Statement of Facts and Contentions and the findings given on-site.

3 The conditions in dispute are:

Condition C.1(a):
the front setback of the first floor level is to be increased by 1.9 m across the entire front elevation.
Condition C.1(d):
the front setback of the swimming pool used to be increased by 4.5 m.

4 Woollahra Residential Development Control Plan 2003 (DCP 2003) provides requirements for Building Size and Location. Objective O 5.2.3 seeks:

To ensure the form and scale of development is not excessive and maintains that the continuity of building forms and front setbacks in the street.

5 The performance criteria in DCP 2003 require the front setbacks to be consistent with those of adjoining buildings. Where the setback of an adjacent building is greater than 3.0 m, this may be achieved by ensuring development is setback the same distance as one or the other of the adjoining buildings or the average of the setbacks of the two adjoining buildings (C 5.2.2). Swimming pools are to be located at the rear of properties (C 5.3.16).

6 In this case, the proposal provides for a contemporary design with the first floor cantilevered over the ground floor at the street frontage. The setback of the first floor varies between 6.1 m and 7.5 m. The property to the north has a front setback of around 8.5 metres while the property to the south (located on the inside of a bend in Suttie Road) has a varied building line but generally in the order of 13 m to 14 m. Strict compliance with the performance criteria in DCP 2003 would require a setback between 9.6 m and 10.6 m although this was not pressed by the council who sought only an increased setback of 1.9 m. This increased setback that would align the first floor of the proposed dwelling with the ground floor.

7 The pool is setback around 4.8 m from the front boundary and is cantilevered over the entry to the dwelling. The pool extends some 13 m along the northern boundary and adjoining the new dwelling.

8 A view of the surrounding area, including the park opposite the site, was undertaken with the parties and revealed that the area consists predominantly of residential development of varying setbacks to the street and due to the often steep topography, a large number of garage structures and fences are located on the street boundary.

9 Following the site view, the parties were given preliminary findings so that further discussions could take place. The parties were advised that I agreed with the submissions of Mr McKee that compliance with condition C.1(a) would result in an unsatisfactory design by providing an unrelieved and unbroken two storey elevation to Suttie Road. Compliance with condition C.1(d) would also exacerbate this design issue.

10 The parties were however advised that the proposed first floor setback was unacceptable in that the cantilevered first floor was a visually dominant element of the design and its prominence was exacerbated by its elevated position and the reduced setback. The parties were also advised to that the proposed setback for the pool was not a significant issue as there were a large number of smaller type structures located on the street frontage or within the setback area in the immediate area.

11 In response, Mr McKee offered to move the whole building back 1 m from the street and redesign the internal layout to provide a further setback of 0.4 m for an increased overall setback of 1.4 metres. A further setback of 1 m for the swimming pool was also offered.

12 While the amended setback is 0.5 m less than that required by condition C.1(a), I am satisfied that Objective O 5.2.3 is satisfactorily addressed and the 0.5 m difference in the front setback will not be overly noticeable when viewed from the street and surrounding area. Importantly, the proposed dwelling will maintain its design integrity with sufficient articulation and variation in form at the street elevation.

13 Consequently, conditions C.1(a) and C.1(d) are amended to read:

Condition C.1(a):
the front building setback is to be increased by 1.4 m
Condition C.1(d):
the front setback of the swimming pool used to be increased by 1 m.

14 The Orders of the Court are:

1) The appeal is upheld.
2) DA 416/2007/1 for the demolition of an existing dwelling and the construction of a new dwelling, swimming pool, decks and landscaping at 30 Suttie Road, Bellevue Hill is approved subject to the conditions in Annexure A.
3) The exhibits are returned.
____________
G T Brown
Commissioner of the Court