Opidian Homes Pty Ltd v Willoughby City Council [2005] NSWLEC 396

Land and Environment Court of New South Wales

CITATION : Opidian Homes Pty Ltd v Willoughby City Council [2005] NSWLEC 396

APPLICANT Opidian Homes Pty Ltd

PARTIES : RESPONDENT Willoughby City Council

FILE NUMBER(S) : 10171 of 2005

CORAM: Bly C

KEY ISSUES: Development Application :- Demolition of existing dwelling house - erection of two storey dwelling house - streetscape and character - setbacks - bulk and scale - overlooking - loss of privacy - overshadowing

Willoughby Local Environmental Plan 1995 LEGISLATION CITED: Willoughby Development Control Plan No. 16 - Dwelling Houses in Residential Areas Willoughby Development Control Plan No. 30 - Sustainable Development - Single Dwellings

DATES OF HEARING: 01/06/2005

DATE OF JUDGMENT: 07/26/2005

APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

26 July 2005

10171 of 2005 Opidian Homes Pty Ltd v Willoughby City Council

JUDGMENT The appeal 1 This appeal relates to Development Application No. 2004/203 which is for the demolition of an existing dwelling house and the erection of a new detached dwelling house at 24 Kooba Avenue, Chatswood ("the site"). The proposal 2 The proposed 284 sq m two storey dwelling house is somewhat unusual in this locality because the principal outdoor living areas including a swimming pool are to be located in the front yard, being setback 10.5 m from Kooba Avenue and about 1 m from Greville Street. The house itself is setback about 17.5 m from Kooba Avenue and 3.0/2.1 m from Greville Street. The first floor element of the house is setback about 25 m. By comparison the existing house is setback about 12 m from Kooba Avenue essentially on the same building line as the house to the east at No. 22 Kooba Avenue ("No. 22"). The site and the locality 3 The site is situated at the southeast corner of Greville Street. It has an area of approximately 697 sq m, a frontage to Kooba Avenue of about 15 m and a frontage to Greville Street of about 46 m. It has a fall of about 1.5 m in a north westerly direction. 4 The locality comprises a mixture of one and two storey dwelling houses in landscaped gardens. There are numerous canopy trees in the area. The adjoining No. 22 is developed with a single storey detached dwelling. To the south the site adjoins an existing access way between No. 22 and Greville Street. Relevant planning controls 5 The site is zoned Residential A under Willoughby Local Environmental Plan 1995 ("the LEP") and in this zone the proposal is permissible with development consent. Also applicable are: o Willoughby Development Control Plan No. 16 - Dwelling Houses in Residential Areas ("DCP 16"). + Willoughby Development Control Plan No. 30 - Sustainable Development -- Single Dwellings ("DCP 30"). Advertising and council's decision 6 The application was advertised and seven letters of objection were received from residents in Kooba Avenue and Greville Street and nearby Kareela Road. Expressed matters of concern include loss of new mature trees from the nature strip and from the property itself; the excessive size of the house on a prominent corner site; potential noise from the swimming pool plant; loss of privacy; overshadowing; and adverse impacts on the Greville Street and Kooba Avenue streetscape. 7 A report was prepared by Ms J Dunkerley, a council development officer recommending that the application should be approved subject to a number of conditions. Notwithstanding this report the council issued a notice of determination on 16 March 2005 refusing the application for reasons involving: + Non-compliances with DCP 16 in relation to bulk, scale, front setback, and private open spac + Inconsistency with the streetscape; + Adverse impacts on the privacy of the adjoining property at No. 22; + The proposal would not be in the public interest because of the location of the pool, the second storey element and the public submissions.