Pietranski v Waverley Council - [2009] NSWLEC 1278

Land and Environment Court

of New South Wales

CITATION: Pietranski v Waverley Council [2009] NSWLEC 1278

PARTIES:
APPLICANT
Tim Edward Pietranski
RESPONDENT
Waverley Council

FILE NUMBER(S): 10308 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to existing dwelling
impact on residential amenity

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444
Tenacity Consulting v Waverley Council [2004] NSWLEC 140
Westwood v Waverley Council [2004] NSWLEC 574
Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 3 August 2009

DATE OF JUDGMENT:
25 August 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr M McMahon (solicitor)
SOLICITOR
ME McMahon & Associates
RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pearson C

25 August 2009

10308 of 2009 Tim Edward Pietranski v Waverley Council
JUDGMENT

1 This is an appeal against conditions imposed by Waverley Council (the council) on the granting of consent to a development application made under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to an existing house at 58 Denham Street Bondi Beach (the site).

Site and its context

2 The site is located on the western side of Denham Street between Bondi Road and Edward Street, and has an area of 250.6 sq m with a small fall from the south to the north side. The site is occupied by a single storey semi detached dwelling with a garage within the front yard. The adjoining semi is to the south, and to the north is a four storey residential flat building facing Edward Street. To the south are semi detached dwelling houses, and to the rear are semi detached dwellings and single to two storey buildings, which face Castlefield Street.

3 The development application was for approval of alterations to the rear ground floor of the existing dwelling including a deck to the rear of the dwelling; addition of a first storey including a study, two bedrooms, a bathroom and a robe area; and addition of a swimming pool in the rear yard.

Planning Controls

4 The site is zoned 2(c1) Residential – Medium and High Density under Waverley Local Environmental Plan1996 (the LEP). The development is permissible with consent.

5 Waverley Development Control Plan 2006 (Amendment No 2) (the DCP) applies to the site. The parties agree that Waverley DCP 2006 (Amendment No 4), which was adopted on 7 October 2008, only applies to applications lodged after 5 November 2008, which is after the application the subject of these proceedings was lodged. The relevant generic controls under Part D1 Dwelling House and Dual Occupancy Development of the DCP as contended by the council relate to height, size and bulk, setbacks, privacy and landscaped open space. The site is within the Imperial Avenue precinct under the DCP, and relevant controls are provided in Part F3.

Background

6 The Statement of Facts and Contentions filed by…

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: [2009] NSWLEC 1278
Decision Date: 25 August 2009

CaseChat Overview and Summary

This case involves an appeal against conditions imposed by Waverley Council on a development application for alterations and additions to an existing dwelling at 58 Denham Street Bondi Beach. The applicant, Tim Edward Pietranski, sought approval for various changes, including the addition of a first storey and a swimming pool in the rear yard. The council granted conditional consent, imposing certain conditions, which the applicant now challenges. The key legal issues were whether the conditions regarding the first storey addition and the swimming pool were reasonable and necessary under the Environmental Planning and Assessment Act 1979 and the Waverley Development Control Plan 2006.

The Court examined whether the proposed first storey addition would significantly impact the views and amenity of neighbouring properties, particularly those to the south. The applicant argued that the proposal complied with planning controls and that the views affected were across side boundaries and not of significant quality. However, the Court found that the first storey addition, as proposed, would block district views from the neighbouring properties, significantly impacting their amenity. The Court concluded that while the proposal complied with numerical planning controls, the design could be altered to reduce the impact on neighbouring properties without unreasonably affecting the applicant's development potential. Therefore, the condition requiring the deletion of the bedroom and robe area on the first floor, as well as the condition to move the first-floor addition further into the roof space, were upheld.

Regarding the swimming pool, the council argued that it unreasonably compromised the landscaping and the health of an existing lemon tree. The applicant contended that the pool would not significantly impact the landscaped area and that the tree could be removed and replaced. The Court found that the existing vegetation would screen the pool area, reducing adverse impacts on neighbouring properties, and that the 3% shortfall in landscaped open space would not be discernible. Therefore, the condition to remove the pool was not upheld.

The Court deferred making final orders to allow the parties to prepare amended conditions for the first storey addition and the swimming pool, to be filed by 1 September 2009. The Court concluded that while the proposed first storey addition would have an unacceptable adverse impact on the views and amenity of adjoining properties, the condition to adjust the rear setback would be acceptable. The condition to remove the swimming pool was not considered necessary.

Orders