Lea G & Anor v Waverley Council

Land and Environment Court

of New South Wales

CITATION:	Lea G & Anor v Waverley Council [2007] NSWLEC 617
PARTIES:	APPLICANT: Graham Lea & Orel Lea RESPONDENT: Waverley Council
FILE NUMBER(S):	10513 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Bulk, height and scale
LEGISLATION CITED:	Waverley Local Environment Plan 1996, (WLEP) Waverley Development Control Plan 2006, (WDCP) Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:	Pafburn v North Sydney Council [2005] NSWLEC 444; Tenacity v Warringah Council [2004] NSWLEC 140; Veloshin v Randwick Council [2007] NSWLEC 428; Zhang v Canterbury (2001) 115 LGERA 37
DATES OF HEARING:	17 September2007
EX TEMPORE JUDGMENT DATE:	17 September 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr V Conomos, solicitor SOLICITORS: Pike Pike and Fenwick RESPONDENT: Mr S Patterson, solicitor SOLICITORS: Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

17 September 2007

10513 of 2007 - Graham Lea & Orel Lea v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to refuse a development application to demolish the existing building and to erect two attached dwellings at Lot 14, Section 2, DP 770, being No 11 Kent Street, Waverley.

2 I visited the land in company with the parties on the morning of the hearing and heard from local residents.

3 I have concluded that the application should fail as a result of excessive bulk and the southern wall jutting past the line of the abutting dwelling and cutting off water views.

The land

4 The land is situated on the south (lower) side of Kent Street, near the intersection with Firth Street. It is rectangular in plan with a frontage to Kent Street of 15.24m, a depth of around 35.76m and an area of 545m2. The land slopes steeply away from the street such that the rear of the site is 5.75m below street level. Ocean views are afforded from and across the land to the southeast.

5 Erected on the land is a single-storey weatherboard cottage, which is located below street level, such that only the roof is visible at the horizon line. The land is extensively landscaped with mature trees in the front setback area and in the southwest corner.

6 The streetscape of Kent Street is an eclectic mix of buildings, some three-storey terraced style and some semi-detached dwellings adjoining to the west, built to the street and side boundaries. To the east is a two-storey dwelling set significantly back from the street boundary at the same, lower level, as the dwelling on the subject land.

7 Further to the east, dwellings are of varying architectural styles, ages and siting along the street. The northern side of the street generally comprises substantial brick two-storey dwellings.

Relevant planning controls

Waverley Local Environment Plan 1996, (WLEP)

8 Under the provisions of the WLEP the land…