Wang v Woollahra MC - [2006] NSWLEC 106

Land and Environment Court

of New South Wales

CITATION: Wang v Woollahra MC [2006] NSWLEC 106

PARTIES:
APPLICANT
James Wang
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 11310 of 2005

CORAM: Hussey C

KEY ISSUES: Appeal :- s 96 Modification application for the construction of a 3-storey dwelling - excavation - boundary fence

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan
Woollahra Residential Development Control Plan 2003

DATES OF HEARING: 30/01/2006 and 06/02/2006

DATE OF JUDGMENT:
03/08/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Wang, litigant in person
RESPONDENT
Mr M. Connell, solicitor
for Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

8 March 2006

11310 of 2005 James Wang v Woollahra Municipal Council
JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a s96 Modification application, concerning the construction of a new 3-storey house at No. 9 Dunara Gardens, Point Piper.

2 The development application proposed the demolition of an older style dwelling on the site and replacement by the new 3-storey dwelling. It included a lower floor level containing a pool, sauna and plant area.

3 Development consent was granted by Council on 14 June 2005 to the proposal, subject to 64 conditions including:

The lower ground floor level (containing pool, sauna, pool plant area, AC area, and bathroom) is to be deleted. Details are to be provided with the application for Construction Certificate.

4 Consequently the s96 Modification application was made to delete this Condition 2 and also to include the extension of the side and front boundary fences of the lot, including a gate to maintain privacy and security to the property.

The site.

5 The subject site is known as No. 9 Dunara Gardens, which is a privately controlled access road, off Wentworth Street. It has an area of 646.6 sq m and is situated on the eastern side of the access way.

6 The adjoining property to the north is No. 10 Dunara Gardens and contains the heritage listed Dunara House. Along the common boundary of No 9 and No. 10 Dunara, there is a right-of-way (ROW), providing access to rear properties, as shown on attached Sketch A. The restriction for the ROW is 1.73 m wide, on both properties.

Woollahra Local Environmental Plan (LEP) .
Under which the site is within the 2 (a) Residential zone. This LEP contains relevant aims, objectives and development standards.

Woollahra Residential Development Control Plan 2003 (RDCP

The evidence.

7 The appeal commenced on-site where the opportunity was given for neighbours to express their concerns about the proposed modifications.

8 These concerns can be summarised as follows:

the site is situated on underlying sand beds, which could potentially destabilise surrounding properties if excavation for the lower ground level containing the pool area was allowed;

the allowance of the excavation for the lower ground level breached the covenant on the…

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.

Continue reading Wang v Woollahra MC

Details

AGLC: Wang v Woollahra MC [2006] NSWLEC 106
Case: [2006] NSWLEC 106
Decision Date: 03/08/2006

CaseChat Overview and Summary

James Wang appealed against the Woollahra Municipal Council's refusal of a modification application concerning the construction of a 3-storey dwelling at No. 9 Dunara Gardens, Point Piper. The applicant sought to modify the development consent granted by the Council by deleting the condition that the lower ground floor level, which included a pool, sauna, and plant area, be removed. The applicant also sought to extend the side and front boundary fences of the lot, including a gate to maintain privacy and security. The court had to decide whether the proposed modifications were consistent with the approved development consent and did not materially impact the neighbours' amenity.

The court considered the evidence, submissions, and conducted a site visit. It was satisfied that the modifications referred to substantially the same development as approved and that the modifications merited consent. The court found that the proposed modification works were contained within the approved building footprint and did not affect the external appearance of the building or amenity of the neighbours. The court was also satisfied that appropriate conditions could be imposed to satisfy the geotechnical and structural engineering concerns. Regarding the fence construction, the court found that the proposed fence alignment was within the applicant's property and complied with the right-of-way (ROW) restrictions. The court considered that any action to resolve the concerns about the ROW was more appropriate under the provisions of the restrictive covenant.

The court allowed the appeal and approved the s96 Modification to construct lower ground floor level facilities and a side and front fence at No. 9 Dunara Gardens, Point Piper, subject to the amended and additional conditions in Annexure A. The exhibits could be returned except for exhibits 4, 6, A, B, and C.

Orders