Kamenev v Woollahra Municipal Council

[2020] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kamenev v Woollahra Municipal Council [2020] NSWLEC 1088
Hearing dates:	Conciliation conference on 12 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1) The applicant is granted leave to rely upon the plans referred to in condition A.3 of Annexure “A”. (2) The Appeal is upheld. (3) Development Applicant No. DA208/2019 for alterations and additions to a dwelling house approved under DA 304/2018 at 13-15A Coolong Road, Vaucluse is approved subject to the conditions annexed and marked “A”.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to dwelling house – disputed conditions –conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Leonid Kamenev (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: S Gadiel (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/297164
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Leonid Kamenev (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against conditions imposed on the consent for development application DA 208/19 (the application) by Woollahra Municipal Council (the Council).

2. The application proposed to extend the depth of a terrace at first floor level and a roof garden at second floor level of an approved dwelling at 13 – 15A Coolong Road, Vaucluse (the site). The application was advertised and 2 objections were received from neighbours with the principal concerns relating to view loss and privacy impacts.

3. The application was approved but with conditions requiring a reduction in the depth of the terrace and roof garden so as to address privacy and minimise view impacts.

4. In particular, the Council was concerned at the impact of the works on the privacy of, and views from, the adjoining property at 11 Coolong Road. One of the two objections to the application had been received on behalf of the owners of 11 Coolong Road raising concerns with these impacts. The Council did not consider the concerns raised in the second objection would result from the application.

5. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation which commenced onsite where a representative on behalf of the owners of 11 Coolong Road addressed the Court and the parties. The site was viewed from terraces of that dwelling with the representative arguing that a more skilful design, with the terraces relocated, could reduce view impacts.

6. A joint expert report had been prepared by planners and designers for the parties in the event that there was not a conciliated outcome and the matter proceed to a hearing.

7. In that report, the experts agreed that the privacy concerns had been addressed and, subject to further modifications, the Council would be satisfied that the view impacts would be reasonable.

8. The applicant agreed to those modifications which, in essence, involved a reduction in the depth of the works at both levels, thus increasing the rear setback from the harbour foreshore, and a chamfering of the glass balustrade around the terrace.

9. As a result of the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

10. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) to dispose of the proceedings in accordance with the parties’ decision.

11. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

12. In making the orders, I am not required to make a merit assessment of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

13. In this regard, the objectives and relevant controls of the Woollahra Local Environmental Plan 2014 (the LEP) were met including in terms of compliance with the 12m foreshore building line required by cl 6.4. The LEP objectives for the R2 zone, in which the dwelling house has been approved, were also considered.

14. I am also satisfied that consideration was given to the submissions lodged. The application had been amended in response so that privacy was maintained and view impacts, the only material issue in the proceedings, had been addressed so that a reasonable level of view sharing with 11 Coolong Road was achieved.

15. Whilst there was a slight non-compliance with the rear setback required by the Woollahra Development Control Plan 2015 (the DCP), the Council considered that this was offset by a generous side setback and would have less view impact than reducing the side setback. In this regard, a minimum side setback to 11 Coolong Road of 3.4m was permissible by the DCP but a minimum setback of 6.52m was provided. The minor non-compliance of the DCP rear setback control was supported on this basis and also having regard to the location of, and outlook from, the dwelling at 11 Coolong Road.

16. In this regard, the experts agreed that some view loss is an inevitable consequence of a reasonable development of the site and also, in part, a consequence of the large rear setback of the dwelling on 11 Coolong Road.

17. The Council was also satisfied with the applicant’s explanation that what was proposed was a more skilful design, and that the terrace could not be relocated and still service the primary living areas of the approved dwelling, or achieve the outlook and amenity sought from these areas.

18. There are no other pre-conditions to the granting of consent which are required to be considered.

19. Accordingly, the Court orders that:

1. The applicant is granted leave to rely upon the plans referred to in condition A.3 of Annexure “A”.

2. The Appeal is upheld.

3. Development Applicant No. DA208/2019 for alterations and additions to a dwelling house approved under DA 304/2018 at 13 -15A Coolong Road, Vaucluse is approved subject to the conditions annexed and marked “A”.

…………………………………

Jenny Smithson

Commissioner of the Court

Annexure A (132 KB)

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Decision last updated: 28 February 2020