Zaia Design Architects v Woollahra MC - [2006] NSWLEC 553

Land and Environment Court

of New South Wales

CITATION: Zaia Design Architects v Woollahra MC & Anor [2006] NSWLEC 553

PARTIES:
APPLICANT
Zaia Design Architects
1st RESPONDENT
Woollahra Municipal Council
2nd RESPONDENT
Resham Singh and Kalwant Kour

FILE NUMBER(S): 11461 of 2005

CORAM: Murrell C

KEY ISSUES: Development Application :- Preliminary findings, dual occupancy development impact on streetscape, removal of Norfolk Island Pine, impact on adjoining properties, privacy view sharing, drainage requirements of cl 25(2) of LEP.

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

CASES CITED: Tenacity v Warringah Council;
Zhang v Canterbury Council NSWCA 167;
Castanet Investments v Woollahra Council [2005] NSWLEC

DATES OF HEARING: 04/04/2006 and 05/04/2006

DATE OF JUDGMENT:
06/30/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr Green, solicitor
Ms J. Reid, solicitor
of Pike Pike and Fenwick
1st RESPONDENT
Ms M. Hawley, solicitor
of Lindsay Taylor Lawyers
2nd RESPONDENT
Ms H. Irish, barrister
instructed by Mr P. D. McLachlan
of Aitken McLachlan & Thorpe

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

30 June 2006
11461 of 2005 Zaia Design Architects v

Woollahra Municipal Council

JUDGMENT

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

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) for the property known as 8 Dalley Avenue, Vaucluse. The proposal is for the demolition of the existing dual occupancy and the construction of a new attached, Part 2 and Part 3 storey dual occupancy development with underground car parking for five vehicles, and two swimming pools, one for each dwelling, one located in the front and one at the rear of the subject property.

2 The site, is approximately 986 sq m with a frontage of some 15.2 m and a depth of 70 and 62 m. The site and topography can be described as sloping away from the street frontage from the west to the east, with a dwelling currently facing the rear of the site and one facing the street. This remains in the proposed reconfiguration as well.

3 The locality is predominantly characterised by dwelling houses of varying architectural style. The adjoining property to the east, 6 Dalley Avenue, is a two storey dwelling house set back towards the rear of the site to take advantage of views west towards Sydney Harbour. Adjoining the site to the west, Nos. 10 and 10A Dalley Avenue. Both consist of two storey dwelling houses with 10A being a battleaxe allotment. Adjoining the site to the west is No. 6 Hillside Avenue and this consists of a two storey dwelling house.

4 The Statement of Basic Facts has been agreed to between the parties and is at Attachment 1.

5 The issues in the proceedings. The respondent raised several issues including the drainage issue and whether consent should be granted to the proposed development in terms of cl 25(2). This matter must be addressed and…

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 Zaia Design Architects v Woollahra MC

Details

AGLC: Zaia Design Architects v Woollahra MC [2006] NSWLEC 553
Case: [2006] NSWLEC 553
Decision Date: 30/06/2006

CaseChat Overview and Summary

The case of Zaia Design Architects v Woollahra Municipal Council dealt with an appeal against the refusal of a development application for a property located at 8 Dalley Avenue, Vaucluse. The proposal involved the demolition of an existing dual occupancy and the construction of a new attached, two and three storey dual occupancy development, including underground car parking and two swimming pools. The Land and Environment Court of New South Wales heard the appeal, with Murrell C presiding. The primary legal issues revolved around the compliance of the proposed development with the Woollahra Local Environmental Plan (LEP) and the Woollahra Residential Development Control Plan (DCP). The court had to determine whether the development application met the requirements for view sharing, adequate stormwater disposal, and adherence to the DCP's provisions on setbacks, building height, and floor space ratio.

In reaching its decision, the court considered expert evidence from arborists, landscape architects, and town planners. The court also evaluated the views and concerns of adjoining property owners regarding view loss, privacy, and the impact on their properties. The court found that while the proposed development would result in some view loss, it represented reasonable view sharing when assessed holistically, considering the principles of view sharing articulated in Tenacity v Warringah Council. The court concluded that the proposed development was consistent with the council’s planning regime, and it was prepared to grant consent subject to certain conditions. These conditions included the deletion of the front swimming pool, lowering the front portion of the building, retaining the Norfolk Island Pine, and amending the balconies to enhance privacy for adjoining properties. The court also highlighted the need for the applicant to satisfy the requirements of cl 25(2) of the Woollahra LEP concerning stormwater disposal before final consent could be granted.

Orders