Zaia Design Architects v Woollahra MC (No. 2)

[2008] NSWLEC 1139

Land and Environment Court

of New South Wales

CITATION:

Zaia Design Architects v Woollahra MC & Anor (No. 2) [2008] NSWLEC 1139

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 :- Drainage easement cl 25(2) of LEP, dual occupancy, impact on adjoining properties, privacy view sharing, conditions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan

DATES OF HEARING:

19/02/2008

EX TEMPORE JUDGMENT DATE:

19 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr Green, solicitor
Ms J. Reid, solicitor
of Pike Pike and Fenwick

1st RESPONDENT
Mr S. Simington, 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

19 February 2008

11461 of 2005 Zaia Design Architects v Woollhara Muncipal Council

JUDGMENT 2

1 The applicant in these proceedings is here today with an agreement for a drainage easement over adjoining properties.

2 By way of background the applicant appealed against Council's refusal of the development application for demolition of an existing dual occupancy and the construction of a new part two and part three-storey dual occupancy development with underground car parking for five vehicles on the land known as number 8 Dalley Ave Vaucluse. I handed down judgement of the merits of the development application 30 June 2006 wherein I found that apart from the need to satisfy the provisions of clause 25(2) of the Woollahra Local Environmental Plan I would be prepared to determine the application by the granting of consent. The matter is before me today with agreement to satisfy this clause with a formalized drainage easement through adjoining properties. Clause 25(2) requires a formal drainage easement to be in place prior to the issuing of development consent, in this case before the formal Orders of the Court are issued granting development consent.

3 Prior to the final orders being issued by the court the second respondent in these proceedings, the adjoining owner, seeks to be heard on the conditions of consent pertaining to the height of the proposed landscaping to be carried out on the subject property. The parties have discussed the concerns of the adjoining property owner and the applicant is prepared to maintain the height of boundary plantings and certain other trees in the spirit of cooperation. I am satisfied that the concerns of the neighbour in terms of interfering with views have reasonably been taken into consideration. The applicant has also agreed to pruning and lopping the existing magnolia tree on a the opposite boundary in the rear yard to open up views towards Kincoppell and the Harbour. This unusual course of action has been agreed to in the circumstances of the case. However as a long term measure it would be an undesirable precedent and onerous for the owners of a property if a condition of consent were to be imposed to require an existing tree to be maintained at a certain height or RL.

4 I am satisfied that the court is now in a position to issue formal orders in this matter by the granting of consent, subject to the agreed conditions.

5 Accordingly on receipt of the amended conditions agreed today and a complete set of plans the formal Orders of the Court will be:

1. The appeal in respect of the property known as 8 Dalley Avenue Vaucluse is upheld.
2. The development application submitted to Woollahra Council, as amended and shown in the plans filed with the Court 6 March 2008, is approved subject to the conditions contained in Annexure A.
3. The exhibits may be returned to the parties with the exception of the amended conditions and the amended plans.

___________________

J S Murrell
Commissioner of the Court
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