Murphy v Woollahra Municipal Council

[2008] NSWLEC 1431

Land and Environment Court

of New South Wales

CITATION:

Murphy v Woollahra Municipal Council [2008] NSWLEC 1431

PARTIES:

APPLICANT
Kim Leanne Murphy

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10794 of 2008

CORAM:

Hoffman C

KEY ISSUES:

Modification Application :- Amendment of Condition 3A for alterations and additions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan 1995
Paddington Development Control Plan 1999

DATES OF HEARING:

14/10/2008

EX TEMPORE JUDGMENT DATE:

14 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Bartalesi, solicitor
of R Bartalesi & Associates

RESPONDENT
Ms V. McGrath, solicitor
of Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

14 October 2008

10794 of 2008 Kim Leanne Murphy v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This was a Class 1 application under s 96 of the Environmental Planning and Assessment Act [1979] for amendment of condition 3A of the development consent issued by the Woollahra Council on 28 March 2008 for alterations and additions to 12 Stafford Street, Paddington. The site is on the corner of Duxford Street. On the Duxford Street elevation which faces west, the council had sought a condition 3A which states:

“The north-western corner of the ground floor rear wing must have a return of 1 m facing Duxford Street. There can be two doors of a maximum of 1.5 m wide and 2.020 m high separated by a 1 m length of wall.”

2 This relates to the kitchen of the proposal, which has proposed facing Duxford Street (which is the side elevation), two wide glass doors that would occupy the full length of the western wall of the kitchen except for two columns and a wall end.

3 The original consideration of the application by council’s heritage officer, and subject to an objection filed by the Paddington Society, was that the windows would not be sympathetic to the Victorian character of the locality and the conservation area and could be seen from the street.

4 In looking at the plans, there will be a high masonry wall on the side boundary. The kitchen wall varies between 2 m and 2.5 m setback from the side boundary such that there is a narrow deck between the kitchen and the masonry wall. As a result of the height of this wall, only the tops of the windows would be visible from the street and there is a pergola over this side deck, which is shown on the plans to have vegetation covering the pergola, and there are street trees in the public footpath.

5 The applicant sought to amend the condition but did not propose to retain the plans as they originally presented. The applicant does want doorways wider than 1.5 m. The parties negotiated and, due to the merits of the glass doors/windows as seen from the street referred to above, negotiated an amended condition in consent orders in Exhibit 2 of this Hearing.

6 The amended condition says:

“The wall of the north-western corner of the ground floor rear wing must have a return of 750 mm facing Duxford Street. Two sets of doors that are a maximum of 2.2 m wide and 2.020 m high which are separated by a central pier that is at least 500 mm in width are permitted in the ground floor western elevation. The remainder of this western elevation of the kitchen at ground floor level shall be a masonry return.”

7 I am told that an official of the Paddington Society was contacted in regard to the proposed consent orders and advised the council that there was no need to appear at this hearing.

8 Under s 96, I am satisfied that there is no environmental impact of any substance caused by the change to the plans as proposed in the consent orders, and the development remains substantially the same as the original approval, and that suitable consideration of the objectors’ submissions has obviously been given since they did not wish to appear here.

9 Also there is nothing in the applicable statute or the Paddington Development Control Plan 1999 that would prevent or be adverse to an approval. Therefore there is no reason sufficient for me to refuse the consent orders sought.

10 Therefore, the Orders of the Court by consent of the parties are:

1. The appeal be allowed;

2. The conditions of development consent DA 790/2007/1 in respect of the development at 12 Stafford Street Paddington be amended be way of deletion of condition C3(a) and the insertion of following the new condition:


C3(a) amended:

The wall of the northwestern corner of the ground floor rear wing must have a return of 750mm facing Duxford Street. Two sets of doors, that are a maximum of 2200mm wide and 2020mm high, which are separated by a central pier that is at least 500mm in width are permitted in the ground floor western elevation. The remainder of this western elevation of the kitchen at ground floor level shall be a masonry return.

3. The exhibits are returned to all parties except Exhibits A,B and 2.

___________________

K G Hoffman
Commissioner of the Court
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