Roumeliotis v Leichhardt Council

[2007] NSWLEC 422

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Roumeliotis v Leichhardt Council [2007]  NSWLEC 422

PARTIES:
Applicant:
Angel Roumeliotis

Respondent:
Leichhardt Municiapl Council

FILE NUMBER(S):     10468  of       2007

CATCHWORDS:       Development Application :- visual impact on neighbours

LEGISLATION CITED:

CASES CITED:

CORAM:        Roseth SC

DATES OF HEARING:          11/07/2007

EX TEMPORE DATE:           11 July 2007

LEGAL REPRESENTATIVES

Applicant:
Mr S Barwick, town planner
Respondent:
Ms R McCulloch, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

11 July 2007

10468 of 2007    Angel Roumeliotis v Leichhardt Municipal Council

JUDGMENT

1. Senior Commissioner:  This is an appeal against the refusal of a development application to construct an above-ground swimming pool on lot 1 DP 948535, known as 1 Myrtle Street, Leichhardt.  The site has an area of 423m2, and the pool is to be constructed between a recently approved and constructed two-storey garage/studio facing Edith Lane and the eastern side boundary.  The pool is to be built tight against that boundary. 

2. The rear fences of three properties adjoin the rear yard part of the eastern boundary: Nos 68, 70 and 72 Elswick Street.  Mr J Nicholas, who lives at No 68, and Mr B Donnelly, who lives at No 70, object to the pool, while the owner of the third property, No 72, Mrs R Benedetto, supports the proposal, mainly on the grounds that she does not want trees planted along her rear boundary.  Mrs Benedetto gave no reason why she objects to trees that would not exceed the height of the solid wall of the garage/studio behind.  I find her evidence idiosyncratic and do not give it major weight. 

3. The issue for Nos 68 and 70 is noise, privacy and visual impact.  In my opinion, the last is the real problem.  The two-storey structure in the rear of the subject property appears prominent and causes a sensation in the adjoining properties of being hemmed in. 

4. I note that there were three other supporters of the application: the owners of 74 and 76 Elswick Street and 3 Myrtle Street.  The first two are on the other side of Edith Lane, while No 3 is on the western side of the subject site and removed from the proposed pool. 

5. The development consent for the garage/studio included a condition for a landscape plan.  The landscape plan showed nine trees to be planted along the eastern boundary.  These have been planted, though they are still small.  If the pool were constructed, five of the nine trees would have to be removed.  These five trees are alongside the eastern wall of the garage/studio.  As a consequence the softening effect of the landscaping against the blank wall of the garage/studio would be lost. 

6. I note that the applicant proposed a 2.4m high fence to provide an alternative.  This would not have any softening effect.  In my opinion, the visual impact of the garage/studio on Nos 68, 70 and 72 is so adverse that every possible means of softening it should be implemented.  The construction of the pool would deprive the adjoining properties from ever having this unfortunate impact brought within the limits of acceptability. 

7. I am strengthened in the above conclusion by the fact that the original application for the garage/studio included the pool and the applicant deleted the pool.  The applicant accepted and acted on the consent that includes the condition resulting in the planting of nine trees: of which it now wants to remove five.  While this course of action is open to applicants, it has the danger of bringing the approval system into question.  The amendment of an application should be the reflection of a change of intention, not a tactic for obtaining consent for one part, only to try for the deleted part later. 

8. The five trees screening the garage/studio are an essential part of the consent for the garage/studio and should not be disturbed.  For this reason the appeal is dismissed. 

   Orders

9. The appeal is dismissed. 

1. Development application to construct an above-ground swimming pool on lot 1 DP 948535, known as 1 Myrtle Street, Leichhardt is determined by refusal. 

1. Exhibit 1 is retained. 

   __________________
   Dr John Roseth

Senior Commissioner