Tenodi v Blue Mountains City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tenodi v Blue Mountains City Council [2011] NSWLEC 1183

Hearing dates:

20 June 2011

Decision date:

21 June 2011

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

The parties are to file Short Minutes of Order which reflect the findings of this Judgment by 28 June 2011.

Catchwords:

APPEALS - under s 97(1) of Environmental Planning and Assessment Act 1979 to delete a condition of development consent requiring removal of an existing sculpture and approval for new sculptures - under s 121ZK of Environmental Planning and Assessment Act 1979 to remove an existing sculpture. Social impact.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Blue Mountains Local Environmental Plan 2005

Cases Cited:

Bauer Holdings Pty Limited v City of Sydney Council [1981] 48 LGRA 356 at 365
Dixon & Anor v Burwood City Council [2002], NSWLEC 190
Liu v Fairfield City Council [1996] NSWLEC 272
Martyn v Hornsby [2004] NSWLEC 614
New Century Developments v Baulkham Hills Council [2003] NSWLEC 154
Perry Properties Pty Ltd v Ashfield Council (No 2), [2001] NSWLEC 62

Category:

Principal judgment

Parties:

Vesna and Damir Tenodi (Applicant)

Blue Mountains City Council (Respondent)

Representation:

Counsel
Mr S Hopper (Applicant)

Mr A Seton (Respondent)
Solicitors
Hopper & Co Lawyers (Applicant)

Marsdens Law Group (Respondent)

File Number(s):

10003 of 2011 10005 of 2011

Judgment

This determination was given extemporaneously and has been edited prior to publication

1. These are two appeals in relation to a sculpture which has been erected without consent in the front setback of an existing house at 71 Lurline Street, Katoomba (the site).

1. Appeal number 10005 of 2011 is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against conditions 2(a) and 2(b) of the development consent (X/525/2010) issued by Blue Mountains City Council (the council) on 12 October 2010.

1. Appeal 10003 of 2011 is an appeal under s 121ZK of the EPA Act against an Order issued by the council on 7 December 2010, requiring removal of the sculpture.

1. The parties agree that the appeals may be heard together. The key issue between the parties is whether the sculpture has an unacceptable social impact.

Site and its locality

1. The site is located at the western side of Lurline Street. It is T-shaped and has an area of 987 sq m. The existing house on the site is set back about 25 m from the street frontage and is elevated above the street. The site adjoins two dwellings (69 and 73 Lurline Street) which are constructed forward of the existing dwelling on the site.

1. The Katoomba RSL is opposite the site. Other development in Lurline Street is a mixture of tourist development, detached dwellings and residential units. Lurline Street is the main tourist route between the Katoomba town centre and the Three Sisters lookout at Echo Point.

Planning framework

1. The site is within the Village Tourist zone under Blue Mountains Local Environmental Plan 2005 (LEP 2005). The parties have agreed…