Kennedy v .Woollahra Municipal Council

[2005] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION:

Kennedy & Ors v .Woollahra Municipal Council [2005] NSWLEC 124

PARTIES:

APPLICANT
T Kennedy & Ors

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10824 of 2002

CORAM:

Tuor C.

KEY ISSUES:

Development Consent :- s 96 application to extend ground floor
impact on ajoining residents bulk
privacy
noise
costs

DATES OF HEARING:

04/03/2005

EX TEMPORE JUDGMENT DATE:

03/04/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr Kennedy, litigant in person

RESPONDENT
Mr M Connell, solicitor
Solicitors
Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

4 March 2005

10824 of 2002 T Kennedy & Ors v Woollahra Municipal Council (2)

JUDGMENT

1 This is an appeal against Woollahra Municipal Council’s refusal of a s 96 application to modify the development consent DA 770/2002 for a residential flat building at 42 Bundarra Road, Bellevue Hill. The consent was granted by the Court on 28 May 2004.

2 Council has resolved to seek consent orders for the s 96 application. The proposed modification is to extend the ground floor by 1.5m to the rear, southeast boundary of the site. The extension would be over the basement carpark and would result in a reduction of the grassed landscape terraced area off two bedrooms. A planter box is proposed on the roof of the extension.

3 The Court heard evidence from Mr Sterling-Levis of 1/41 Benelong Crescent who raised concerns that the proposed change would further reduce the rear setback of the building from 9m to 7.5m which did not comply with the requirement in Woollahra Development Control Plan (DCP). In his opinion this would reduce the area of landscaping and result in increased noise impacts as there would be less opportunity to plant landscaping to deaden noise.

4 Mr S Harding, town planner and the Court appointed expert, raised no objection to the proposal on the basis that it did not increase the bulk of the building and in his opinion actually had a positive effect by stepping the rear façade and providing a planter box that would soften the elevation. The extension was over the basement carpark and would not result in any loss of deep soil planting. The ground level was below the level of adjoining development, would not be seen and therefore have no visual impact.

5 In relation to Mr Sterling-Levis’ concerns, Mr Harding stated that the reduction in the terrace area would actually reduce the potential for noise. The terrace was off bedrooms and was not likely to generate noise levels that would cause disturbance such that the application should not be approved. The stepped landscape terraces were to be retained which would provide appropriate screening of the development.

6 I accept the evidence of Mr Harding and am satisfied that the issues raised by council and the objectors have been addressed and that the consent orders may be granted.

Costs

7 The council made an application seeking an order for costs for the extra work undertaken by Harding to assess amended plans. The additional time estimated by Mr Harding was two hours with the cost being $460. I determined this application during the hearing and will briefly summarise the basis for the application and the reasons for supporting it, which I gave in the hearing.

8 Mr Connell, for the council, submitted that the application for Mr Harding’s additional costs was fair and reasonable. This was on the basis that the additional work was to assess amended plans that did not result from Mr Harding’s assessment of the plans that were the subject of the appeal. The amended plans proposed the deletion of the stepped landscaped terrace areas which were part of amendments to the original application agreed to by the planning experts. In response to this and other changes the experts agreed that the variation to the setback requirements in the DCP was acceptable. In Mr Harding’s opinion the proposed deletion of the terraces may benefit the future resident’s of the development but would reduce the screening of the development to mitigate the reduction in setback.

9 The applicant, Mr Kennedy, opposed the council’s application for costs on the basis that the whole appeal was unnecessary and not well founded on planning grounds. He then made an application for the costs of the whole appeal which I dismissed for the reasons that I gave during the hearing.

10 The question before me is whether Mr Harding’s brief was extended by essentially the confusion about the plans or the amended plans that were lodged. Normally, the brief to a Court appointed expert is to deal with the plans that are the subject of the appeal. The Court appointed experts costs and the parties expectation as to their share of the costs are based on this brief. Sometimes the Court appointed expert recommends changes to those plans to address matters that the expert has concerns about. This may result in the applicant submitting amended plans. It is reasonable for the cost of the extra assessment of these plans to be borne by the applicant. The council’s application for costs is consistent with this approach, particularly as the amended plans did not result from suggestions of the Court appointed expert but were additional changes to those originally sought by the applicant.

11 The parties indicated that they would not wish to make submissions to the Chief Judge. Subject to the concurrence of the Chief Judge, I find that it is fair and reasonable that an order be made that the applicant pay the costs for the additional work undertaken by Mr Harding being a sum of $460.

(1) The appeal is upheld.
(2) The s96 application for modification of the Development Consent No DA 770/2002 (the “consent”) for the demolition of an existing dwelling house and the construction of a new residential flat building containing two units over a basement carpark level on land at 42 Bundarra Road, Bellevue Hill, be granted by deleting condition 1 of the consent and inserting instead the following:
(a) The development must be carried out in accordance with the plans numbered 1/9 Issue A, dated 21 January 2004, 2/9 - 9/9 Issue A, dated 10 February 2004, drawn by R D Nahum Architect, and the landscape plans numbered L01 to L04, drawn by City Plan Landscapes, dated February 2004, as amended by the works shown in colour on the plans numbered 3/9 - 4/9 Issue A4 and 7/9 - 8/9 Issue A4, all dated 3 March 2005, drawn by R D Nahum Architect and as amended by the landscape plan numbered R1 dated 3 March 2005.
(3) The exhibits except Exhibit 3, 4, 13 and A, may be returned.

12 In relation to the costs application, subject to the concurrence of the Chief Judge, I order that the applicant pay the extra costs incurred by Mr Harding, the Court appointed expert, to assess amended plans, being the sum of $460.

_________________
Annelise Tuor
Commissioner of the Court