Land and Environment Court of New South Wales CITATION : Dean v Waverley C [2006] NSWLEC 179 APPLICANT Julie Dean PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 11160 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Demolition of an existing house, deferred commencement to the proposal, design amendments, view loss and privacy. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 20/02/2006 EX TEMPORE JUDGMENT DATE : 02/20/2006 APPLICANT Mr Green, solicitor of Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr S. Patterson, solicitor of Wilshire Webb JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 20 February 2006 11060 of 2005 Julie Dean v Waverley Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 The appeal concerns a development application proposing demolition of an existing house and construction of a new 3-storey dwelling and swimming pool with underground parking at No. 1 Bronte Marine Drive, Bronte. The Council granted deferred commencement to the proposal, which required a number of design amendments so as to reduce the amenity impacts on the neighbouring properties, particularly the loss of views and loss of privacy. 2 The appeal was lodged against the conditions of consent. The full details of the site, the proposal and the planning controls are contained in the Statement of Basic Facts on which I rely. 3 However in the lead up to the appeal, a number of amendments have been undertaken in response to the objections, which include the realignment of the southern boundary, the decks and also building alignments along the western boundary. This improves the sight lines from various units in the neighbouring block and the extent of the balconies will be further reduce to overlooking opportunities from the units into the proposed bedrooms along these elevations. The amendments also include movable screens along the edge of these balconies, which I consider also restricts the opportunities for overlooking. 4 In response to these amendments the parties now agreed to give consent orders. 5 Notwithstanding this and in accordance with the Court Practices Direction, the objectors were given notice of the consent orders and the proposed conditions. They have had the opportunity to view the consent orders and express further concerns this morning. Consequently they expressed further concerns about the level of privacy loss and the degree of overlooking and the Court this morning took the opportunity of visiting these units to check the sight lines and assess amenity impacts. 6 Having undertaken that exercise, I am satisfied now that the amended proposal represents a reasonable balance between the private interest in redeveloping this property and the public interest considerations arising from impact on views. 7 The proposal appears to be a very attractive design, which offers opportunities for a high standard of amenity and it should look attractive in the streetscape. In my opinion, the loss of views is within reasonable limits. Insofar as there is some change in the views, I do not consider they are sufficient to warrant further fine tuning of the design, or rejection of the application. 8 With respect of the overlooking, I have taken into consideration the context of this beachfront area, where a degree of overlooking seems to be accepted. The separation distances from the various balconies and the windows, which I note have been agreed to be in excess of 18 metres, represents a reasonable degree of separation. The overlooking is generally at an oblique angle, which restricts the level of impact to some extent. But the main concern for overlooking is about bedroom to bedroom and considering the significant separation distances and the general assumption that bedroom windows are frequently "curtained", it seems to me that the opportunities for overlooking are minimised to a reasonable extent. 9 In the ultimate, the planners have given detailed a consideration to the amendments in the exhibit 5. Mr Adey and Mr Darroch agree that this is a reasonable proposal and they support the consent orders. Having considered the evidence, objections and viewed the proposal, therefore, I consider the consent orders should be granted. 10 The Consent Orders are: 1. The Appeal is upheld. 2. Development Consent No. DA 21/ 2005 dated 12 November 2005 relating to No. 1 Bronte Marine Drive, Bronte is amended in accordance with the conditions set out in Annexure A. 3. The exhibits be returned except for Exhibits 1, 7, 5, A and B. ___________________ R Hussey Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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