Vlahos v Willoughby City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vlahos & Anor v Willoughby City Council [2013] NSWLEC 1068

Hearing dates:

18 April 2013

Decision date:

19 April 2013

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal upheld in part

Catchwords:

Modification, replacement tree planting, privacy

Legislation Cited:

Land and Environment Court Act 1979; Willoughby Local Environmental Plan 1995; Willoughby Local Environmental Plan 2012; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;
Environmental Planning and Assessment Act 1979

Cases Cited:

Meriton v Sydney City Council [2004] NSWLEC 313;
Super Studio v Waverley [2004] NSWLEC 91;
Sahade v The Owners - Strata plan No. 62022 & Ors [2006] NSWLEC 770;
Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276;
MacDonald v Mosman Municipal Council [1999] NSWLEC 215

Texts Cited:

Willoughby Development Control Plan; Residential Flat Design Code; AMCORD

Category:

Principal judgment

Parties:

Peter Vlahous
Roula Vlahous (Applicants)

Willoughby Council (Respondent)

Representation:

Counsel
Dr S Berveling (Applicant)

Mr J Johnson (Respondent)
Solicitors
Mr J Comino
Comino Prassas (Applicant)

Ms K Arthur
King & Wood Mallesons (Respondent)

File Number(s):

10073 of 2013

Judgment

1. Mr and Mrs Vlahous have consent for the construction of a two storey dwelling house and swimming pool at No. 13 Weetawaa Road, Northbridge. The dwelling house has been completed however, does not accord to the plans and consent conditions imposed by Willoughby Council under Development Consent DA-2010/245. Vlahous sought modification of the consent to reflect the dwelling as built and to delete consent conditions that required the retention of a tree within the rear yard of the property. The council modified the consent to reflect the changes made to the building however imposed conditions that require replacement tree planting and the construction of a privacy screen to the upper floor bedroom balcony.

1. Vlahos are appealing the conditions imposed by the council in relation to trees and the screen.

1. The appeal commenced under the provisions of s34AA of the Land and Environment Court Act 1979 (LECAct) and, despite agreement between the arborists on tree type, the parties did not resolve all of the contentions and the conference was terminated. The parties agreed that the matters discussed during the conciliation conference and the evidence provided during the site view could be used as evidence in the hearing that was held in accordance with the provisions of s34AA(2)(b)(i) of the LECAct.

Background

1. Willoughby Council granted development consent 2010/245 on 9 August 2010 for demolition and construction of a new two storey dwelling and swimming pool at 13 Weetawaa Road, Northbridge (site). The consent issued required, amongst others, the development to be constructed in accordance with the approved plans and that a large Allocasuarina cunninghamiana (casuarina) tree adjacent to the rear boundary be retained and protected. The applicant had proposed removal of the tree and specific conditions, condition 4(a) and 23, were imposed by the council requiring its retention.

1. Despite these two conditions, the tree has been removed. The council has taken separate action…