Abboud v Hunters Hill Municipal Council [2005] NSWLEC 556

Land and Environment Court of New South Wales

CITATION : Abboud v Hunters Hill Municipal Council [2005] NSWLEC 556

APPLICANT Joseph Abboud

PARTIES : RESPONDENT Hunters Hill Municipal Council

FILE NUMBER(S) : 10281 of 2005

CORAM: Nott C

KEY ISSUES: Development Application :- Proposed demolition of two houses being contributory items and the erection of 10 townhouses - whether houses can be demolished - appearance in the streetscape of the townhouses - privacy and amenity of adjoining residential flat buildings - amenity of single dwelling houses at the rear in a 2A zone including a heritage item - protection of one of the largest lilly pilly - adverse impact on the lilly pilly from three of the units which should be deleted

Environmental Planning and Assessment Act 1979 s 97 LEGISLATION CITED: Hunters Hill Local Environmental Plan No. 1 Development Control Plan No. 15

DATES OF HEARING: 5 August, 6 and 7 September 2005

DATE OF JUDGMENT: 10/11/2005

APPLICANT Mrs Mary-Lynn Taylor, solicitor SOLICITORS Norman Waterhouse

LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Nott C

11 October 2005

10281 of 2005: Joseph Abboud v Hunters Hill Municipal Council [2005] NSWLEC 556

JUDGMENT 1 This is an appeal against the council's refusal of a development application to demolish two houses at 63-65 Ryde Road, Hunters Hill, and to erect 10 townhouses. 2 The main issues were: whether the two dwellings may be demolished as they are contributory buildings under the Hunters Hill Local Environmental Plan No. 1; whether the proposed replacement townhouses are of a suitable design; the privacy and amenity of adjoining dwellings; and whether the proposed development should be refused because of its impact on one of the largest lilly pilly trees in Hunters Hill (this last issue was the most important issue in the hearing). The issues are more fully set out in a filed statement of issues dated 24 June 2005. 3 I adopt the Statement of Basic Facts which describes the site and locality, the relevant statutory controls in the LEP and in DCP No. 15, and gives a history of the development application up to 14 June 2005, when council refused the application. 4 At the hearing, I heard evidence for the council from 9 local residents, Mr G Patch (chartered architect and heritage consultant), Mr P Sutton (parks-landscape co-ordinator). Evidence for the applicant included reports or oral evidence from Mr M Hartley (arborist), Mr M Jeffery (consulting engineer), Mr R Staas (architect and heritage consultant) and from the applicant himself. I also received evidence from a Court-appointed town-planning expert, Mr J Vesico. Several of the resident objectors engaged the services of Mr K Hill, a practising and consulting arborist, from whom I also heard evidence. I have taken into account all the other evidence presented at the hearing and have been aided by a view of the site and locality. 5 For the reasons given below, I am of the opinion that it would be appropriate to grant development consent for the demolition of the existing houses and their replacement by seven of the proposed townhouses. Three townhouses, units 7, 8 and 9, will be deleted because of their likely impact on the large lilly pilly. The deletion of units 8 and 9 will also incidentally overcome certain other objections from the neighbours whose properties adjoin the rear boundary of the site.