Podgornik v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Podgornik v Waverley Council [2012] NSWLEC 1176

Hearing dates:

23, 24 April and 18 June 2012

Decision date:

25 June 2012

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA -130/2011 for the demolition of the existing dwelling and associated structure and the construction of a new dwelling and single garage, detached single garage with cabana over, swimming pool and associated works and landscaping on land at 40 Gardyne Street, Bronte as detailed in the plans which are exhibit E subject to the draft conditions in exhibit 5 including deferred commencement conditions in Schedule A numbers 2, 6, 7 and 9.

(3)The exhibits are returned except exhibits E and 5.

Catchwords:

DEVELOPMENT APPEAL - Public view loss, bulk and scale, streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2010
Waverley Local Environmental Plan 1996

Category:

Principal judgment

Parties:

Andrew Podgornik (Applicant)

Waverley Council (Respondent)

Representation:

Counsel
Ms S Duggan SC (Applicant)

Mr M Staunton (Respondent)
Solicitors
Gadens Lawyers (Applicant)

Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10060 of 2012

Judgment

1. The applicants, Andrew and Chloe Podgornik seek approval to demolish their family home and secondary dwelling/garage; and, construct a new dwelling, detached single garage with cabana over, swimming pool and landscaping at 40 Gardyne Street, Bronte as detailed in exhibit E.

1. Their property is located on the corner of Gardyne and Pacific Streets, Bronte within the Bronte Terraces Precinct under the Waverley Development Control Plan 2010 (the DCP). It has a steep slope and is divided midway by a significant rock ledge. On the highest part of the site - at the Gardyne Street frontage - there is opportunity to capture magnificent panoramic views of the Pacific Ocean and surrounding areas. Not surprisingly, the applicants have designed their main dwelling around these views and generally followed the natural topography of the site. In doing so however, Waverley Council contends that the applicants have unreasonably impacted on the private views across the site from the adjoining property at 42 Gardyne Street and the panoramic ocean views from the public stairs and walkway in Gardyne Street.

1. The Council contends that the development does not satisfy the objectives of the desired future character of this Bronte residential precinct under the DCP. The Council's planner, Mr Boston, believes the "...concentration of building height and massing along Gardyne Street creates a "fortress like walling effect" which will be perceived as entirely disparate in the streetscape and which will create a sense of enclosure and obstruct existing public views available across the site from the lower landing of the adjacent public stairs, the lowest flight of stairs and from the Gardyne Street road alignment. "

1. Despite criticism of the applicants' proposal, the Council supports a residential development for the site in accordance with its deferred commencement conditions in Schedule A of exhibit 5. The conditions require the deletion of the entire…