Wilton v Hunters Hill Municipal Council

[2001] NSWLEC 246

Land and Environment Court

of New South Wales

CITATION:	Wilton v Hunters Hill Municipal Council [2001] NSWLEC 246
PARTIES:	APPLICANT Warren Wilton RESPONDENT Hunters Hill Municipal Council
FILE NUMBER(S):	10329 of 2001
CORAM:	Sheahan J
KEY ISSUES:	Development Application :- appeal against refusal of consent - consent orders sought by the parties - objector wishing to be heard
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	27/09/2001
EX TEMPORE JUDGMENT DATE :	09/27/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso (Barrister) Holman Webb (Solicitors) RESPONDENT Ms K Gerathy (Solicitor) Abbott Tout (Solicitors)

JUDGMENT:

WARREN WILTON

Applicant

v

HUNTERS HILL MUNICIPAL COUNCIL

Respondent

JUDGMENT

1. In this matter the applicant and the Council have reached agreement on proposed alterations at 18 Edgecliff Road Woolwich – described in one objection as “an unusual semi”.

2. In short, those alterations involve three elements:

1. Demolition and replacement of a garage facility and provision of a new entrance.

2. Reconfiguration and slight extension of the ground floor of the residence in a westerly direction.

3. Construction of a second storey on the residence.

3. Elements 1 and 2 have implications for the garden area of No.l8, and an SEPP1 objection is before the court for determination. Element 3 has some shadow, view and privacy implications for the adjacent property to the west, which fronts Edgeworth Street as No.16A, but also Elgin Street as No.9.

4. The proposal is within a conservation area and so has potential heritage aspects. It has been under consideration for a period of about eighteen months or so.

5. The alterations to the proposal, as negotiated between the Wiltons and the Council, have satisfied all objectors, excluding the Chiu family of 9 Elgin Street, who have lived in that house for 18 years. It is, from the photographs, an imposing and lovely residence with No.18 in its foreground.

6. In their comprehensive written objection (Exhibit C2), the Chius outlined many concerns and relied on several experts. To some extent, those concerns are addressed by the amended plans to which Council has agreed (Exhibit W1).

7. Those amending plans are dated 12 July 2001, well after many of the comments were first made adverse to the proposal, but some of the Chius’ concerns remain, albeit that they are no longer shared by the Council, which joins the applicants in seeking appropriate consent orders from the court today.

8. The court has heard sworn evidence from Alison Chiu this morning.

9. Essentially her major remaining concern would be accommodated by imposition of a further condition by the court requiring the southern wall of the upper extension to be moved a further 800mm to the north, as had apparently been discussed – she says “agreed” – in an earlier phase of negotiations about the proposal. Be that as it may, total agreement has now been reached between the applicant and the Council on the plans which should apply, and they appear in Exhibit W1.

10. I have also read through all the voluminous material that has been tendered.

11. The upstairs component of the proposal has been reduced in height and bulk. The roofline will rise by only 820mm, and is moved generally to the north. No.16A will still sit higher in the views from the river, parklands and street.

12. As a result, the effect on solar access to No.16A is minimal and confined to the morning.

13. The effect on the garden area is perhaps mildly beneficial, but certainly not adverse, and the amended SEPP 1 objection which is now contained in Exhibit W5 should be upheld as reasonable in all the circumstances.

14. I have had the benefit of reading, and now re-reading, recent Statements of Evidence from consultant town planner Jane de Jong (Exhibit W2 and Exhibit W5), and heritage and view expert Richard Lamb (Exhibit W3), who is well known to the court. I am content to rely upon their expert opinions.

15. Dr Lamb concludes that No.16A does “not lose all of any view, nor have no access at all to important aspects of the view” (p9 of Exhibit W3), and the court also concurs with the remarks in s 5 of his report, which I will not quote at length, but they appear at p 13 of Exhibit W3.

16. The court certainly sympathises with the position taken by Ms Chiu, but in consideration of the concepts of view sharing, I have concluded that the consent orders should be made, granting approval to the proposal as presented to the court this morning.

17. I have amended the form of consent orders somewhat and I am going to invite the parties to sign them, but I had better read them to you first. I have made no amendment to number 1, the appeal be upheld. To number 2, I have added the words (after “annexure A”) “and amended in handwriting” to pick up those matters to which you referred, Mr Galasso. I have made number 3 an order that the SEPP1 objection contained in Exhibit W5 is upheld. I have made number 4 into an order: each party is to bear its own costs. In number 5, I have dealt with the exhibits, Exhibit C1 and Exhibit W4 are to be returned but the other exhibits are to remain with the court papers. So if I could ask the officer to hand you those, you might sign them on behalf of the parties if those alterations meet your needs.

18. So far as the conditions are concerned, I have noted and initialled the amendments to numbers A4, C21 and C100, and I have initialled the deletion of condition C47.

19. The parties having now signed the formal consent orders, I shall sign them. I pronounce the orders as follows.

Orders

20. By consent, the Court orders that:

1. The appeal be upheld.

2. Development Application No.1076/2000 for alterations and additions including a new second storey to the existing single storey semi-detached cottage at 18 Edgecliff Road, Hunters Hill be determined by granting approval subject to the conditions attached as annexure A and amended in handwriting.

3. The SEPP1 objection contained in Exhibit W5 is upheld.

4. Each party is to bear its own costs.

5. Exhibit C1

and Exhibit W4 are returned, but the other exhibits are to remain with the court papers.