Bensen & Partners Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 382

Land and Environment Court of New South Wales

CITATION : Bensen & Partners Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 382

APPLICANT Bensen & Partners Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11602 of 2005

CORAM: Tuor C

Development Application :- Construct a house, swimming pool and landscaping KEY ISSUES: Removal of significant tree Height, bulk and form

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995

DATES OF HEARING: 12/04/2006

DATE OF JUDGMENT: 06/30/2006

APPLICANT Mr C McEwen, SC Solicitors Staunten Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr J Bingham, solicitors Solicitors Deacons Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

30 June 2006

11602 of 2005 Bensen & Partners Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Woollahra Municipal Council (the council) of a development application (DA 849/2004) under the Environmental Planning and Assessment Act 1979 (the Act) to demolish an existing house and construct a new house, swimming pool and landscaping at 57 Latimer Road, Bellevue Hill (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and development consent granted. The site and its context 3 The site is located on the western corner of Latimer and Balfour Roads, Bellevue Hill. It is irregular in shape with an area of 665sqm and frontages to Latimer Road of 9.98m and Balfour Road of 32.57m. The southern side boundary is 43.7m and its western rear boundary is 29m. The site falls approximately 6.75m from east to west. The site is developed with a one to two storey house. There is a mature Magnolia grandiflora (Bull Bay Magnolia) adjacent to the south west corner of the existing house. 4 Surrounding development is detached houses in landscaped settings. The adjoining property to the west, 112 Balfour Road, has a single storey house. The adjoining property to the south, 59 Latimer Road, has a one to three storey house. The history of the proposal 5 The application was lodged on 24 December 2004 and was notified to adjoining and nearby residents. Council received four objections. Council refused the application on 21 March 2005. Subsequently the applicant lodged a s82A application which was recommended for approval but refused by council on 19 December 2005. In response to comments of the Court appointed experts amended plans were prepared which relocated the proposed garage and driveway. Planning Framework 6 The site is zoned Residential 2(a) under Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development is permissible with consent within the zone. 7 The objectives of the zone relevantly include: