Perini v North Sydney Council - [2010] NSWLEC 1325

Land and Environment Court

of New South Wales

CITATION: Perini v North Sydney Council [2010] NSWLEC 1325

PARTIES:
APPLICANT
Peter and Rosslyn Sue Perini
RESPONDENT
North Sydney Council

FILE NUMBER(S): 10110 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT CONSENT :- S96 application to amend consent for single dwelling house
unauthorised work
impact on heritage significance
residential amenity and impact on views
height, building height plane and landscape area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 – Development Standards
North Sydney Local Environmental Plan 2001
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

CASES CITED: Lido Real Estate v Woollahra Council 98 LGERA 1
North Sydney Council v Michael Standley and Associates Pty Ltd 97 LGERA 433)
Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 30 and 31 August 2010 and 11 October 2010

DATE OF JUDGMENT:
25 November 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr Tomasetti, SC
instructed by Mr C Gough
of Storey and Gough

RESPONDENT
Mr I Hemmings, barrister
instructed by Mr T March
of HWL Ebsworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

25 November 2010

10110 of 2010 Perini v North Sydney Council
JUDGMENT

Introduction

1 This is an appeal under s 97 of the Environment Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by North Sydney Council (the council) of an application under s 96(2) of the EPA Act to modify development consent (DA/106/07) at 27, 29 and 29A Shellcove Road, Neutral Bay (the site).

The site and locality

2 The site is located on the eastern side of Shellcove Road adjoining Shellcove Bay. It slopes from west to east towards the water. 29A Shellcove Road (lot 2 DP619776) is a battleaxe block formed by the subdivision of 29 Shellcove Road into two allotments in the 1950s. It has an area of 899.7 sqm and an additional 122 sqm of reclaimed foreshore land is leased from NSW Maritime. A three storey house is partly constructed on 29A Shellcove Road with a separate cabana and jetty adjoining Shell Cove Bay. 29A Shellcove Road is accessed via a 4.1m wide right of way over the adjacent properties to the north.

3 A house known as ‘Keynsham’ is built on 29 Shellcove Road. In 2005, 29 Shellcove Road was consolidated with the adjoining lot to the south west (27 Shellcove Road) to form one lot with two dwellings (lot 101 DP1067984). 27-29 and 29A Shellcove Road are currently in the same ownership.

4 The site adjoins a three storey dwelling (25 Shellcove Road) to the south east, a large house known as Brent Knowle (31 Shellcove Road) to the north west and a house to the north east (31A Shellcove Road).

5 The locality is characterised by residential development with a mixture of houses from different periods and styles on different subdivisions as well as residential flat buildings. Cremorne Point and a foreshore walk…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1325
Decision Date: 25 November 2010

CaseChat Overview and Summary

Perini v North Sydney Council is an appeal against the deemed refusal by North Sydney Council of an application to modify development consent for a single dwelling house on a site at 27, 29 and 29A Shellcove Road, Neutral Bay. The appeal was heard over three days and the key issues were whether the proposed changes would have an acceptable impact on the heritage significance of the existing house and its landscape setting, particularly views to and from the site; provide adequate landscaping; and adversely impact on residential amenity, particularly view loss to 31A Shellcove Road. The applicant submitted that the proposed changes did not impact on the significance of the existing house as it was only significant as part of a group and the changes were not visible from the street. The council submitted that the proposed changes would have an unacceptable impact on the significance of the existing house by reducing the landscaped area and views to and from the house, and would result in unacceptable view loss to 31A Shellcove Road. The Court found that the proposed changes would have an impact on the significance of the existing house by reducing the landscaped area and views to and from the house. The increased size and height of the garage would have an unacceptable impact on the significance of the existing house. The proposed changes would also result in unacceptable view loss to 31A Shellcove Road. The proposal was also found to be non-compliant with the landscape area control. The appeal was upheld in part and the application to modify the development consent was approved subject to a number of conditions.

Orders