Jonson and Ors v Woollahra Municipal Council [2006] NSWLEC 372

Land and Environment Court of New South Wales

CITATION : Jonson and Ors v Woollahra Municipal Council [2006] NSWLEC 372

APPLICANTS K Jonson, T Grigorova and PARTIES : M Bruneau

RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11212 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Consent :- Section 96 amendment, view loss, construction without construction certificate, construction not in accordance with approved plans

LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Residential Development Control Plan 2003

CASES CITED: Tenacity Consulting Pty Ltd v Warringah Council [2005] NSWLEC 46

DATES OF HEARING: 23/02/2006

EX TEMPORE JUDGMENT DATE : 02/24/2006

APPLICANT Mr J Strati, solicitor SOLICITORS Avendra Singh Strati & Kam LEGAL REPRESENTATIVES:

RESPONDENT Ms M Hawley, solicitor SOLICITORS Lindsay Taylor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

24 February 2006

11212 of 2005 K Jonson, T Grigorova & M Bruneau v Woollahra Municipal Council

JUDGMENT 1 This is the judgment in appeal No. 11212 of 2005 between Johnson, Grigorova and Bruneau v Woollahra Municipal Council in regard to the refusal of a s 96 application to amend an existing development consent DA455/2004 in regard to 55 Birriga Road, Bellevue Hill. 2 The application that was approved by the council allowed a third unit called Unit 3 on the roof of an existing two unit development on the subject site. The Unit 3 at the time of the hearing was under construction. However, construction had been halted for several reasons, amongst which was the fact of no construction certificate having been issued and the building as built being apparently different to the plans that were approved. 3 One of the principal features of the difference between the building as built and the approval was the height of the structure. A short description of how it appeared during the course of the hearing was a timber frame had been erected for the whole of Unit 3 on top of the concrete slab which was supported by steel beams that were perched on the brick parapet of the existing Units 1 and 2 at the roof level. The roof of Units 1 and 2 was still intact below this structure. 4 During the course of the hearing, the Court was told that the intention was to support the concrete slab of Unit 3 on hydraulic jacks and demolish the top part of existing Units 2 and 3 in order to lower the concrete slab to the levels that were now proposed. It was also seen on site that the stud framing which was virtually complete for unit 3 had quite a different plan layout to that in the s 96 application. 5 During the course of the hearing, the Court was told that the whole of the stud framing would need to be removed and new stud framing erected to reflect the plans in the s 96 application. 6 The locality of Birriga Road is in transition. It is zoned Residential 2B under the Woollahra Local Environmental Plan 1995 and the applicable control is the Woollahra Residential Development Control Plan 2003. 7 As a result of the transition many new apartment buildings could be seen along Birriga Road together with some older houses and older apartment buildings along the tree-lined street. 8 The issues in the appeal were 1) Whether the proposed modification should be approved given that the plans accompanying the modification application show levels for the modified development which are inconsistent with the surveyed levels for the construction works which have been completed. Particulars The modification plans indicated and RL of 59.87 for the top of the roof compared to a surveyed finished level of 60.28 metres; The modification plans indicate an RL of 56.97 for the finished floor of the new second floor compared to a surveyed finished level of RL 57.525; The plans indicate an RL of 47.87 for the finished level of the basement compared to a surveyed finished level of RL 47.23.