Terry Spinolo Pty Limited v Waverley Council [2006] NSWLEC 229

Land and Environment Court of New South Wales

CITATION : Terry Spinolo Pty Limited v Waverley Council [2006] NSWLEC 229

APPLICANT: PARTIES : Terry Spinolo Pty Limited RESPONDENT: Waverley Council

FILE NUMBER(S) : 11359 of 2005

CORAM: Watts C at 1

Development Application :- Impact on the heritage significance of the park - Issue 1 KEY ISSUES: Non-compliance with the aims and objectives of the LEP - Issue 3 Non-compliance with the controls of the DCP - Issue 4 Impact on the adjoining property to the north - Issue 7

Waverley Local Environmental Plan 1996, (WLEP) LEGISLATION CITED: Waverley Development Control Plan No 2 - Dwelling-house and Dual Occupancy Development, (DCP2) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 27/04/2006 and 28/04/2006

DATE OF JUDGMENT: 05/05/2006

APPLICANT: Mr J J Bingham, solicitor with Ms Z Baker, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Deacons RESPONDENT: Mr S Patterson, solicitor SOLICITORS: Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

5 May 2006

11359 of 2005 - Terry Spinolo Pty Limited v Waverley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Waverley Council (the council) to refuse a development application to demolish the existing dwelling and to erect a new three-storey dwelling house with roof terrace at Lot 18, DP 659162, being No 37 Henry Street, Queens Park. 2 I visited the land in company with the parties on the morning of the first day of proceedings and local residents gave evidence. 3 I have concluded that that the application should fail for reason of its excessive height and bulk and a likely reduction in the amount of direct daylight received in the side windows of the adjoining semi-detached cottage to the north. The land 4 The land is situated on the western side of Henry Street, abutting Queens Park to the south and west. The land is at the southern end of a row of residential allotments fronting Queens Park. 5 The land has a rectangular shape, with a northern side boundary of 33.53m, an eastern frontage to Henry Street of 8.18m, a southern boundary to Queens Park of 33.53m and a western rear boundary to Queens Park of 8.66m and a site area of 282.1m2. The land is slightly narrower than most of the other single dwelling lots in the street, [Note: Exhibit B, Drawing No LDH D0101 showing the existing street and tree locations]. 6 The land slopes down around 5m over the building footprint from the Henry Street frontage at a level of 79m AHD to the top of the cliff at around 76m AHD and around 13m overall fall from the frontage to the rear at 66.00m AHD. The land sits atop a steep sandstone escarpment some 10m-15m high and there is a paved footpath linking with Queens Park at the base of the cliff on the subject land. The land also has a variable cross fall down from north to south of around half a metre. 7 Existing on the land is a single-storey Federation style bungalow with tiled gable roof. The dwelling abuts the southern side boundary with the park and has a setback of around 900mm to the northern boundary that provides pedestrian access to the rear yard. No off street parking is provided. Landscaping on the land includes three semi-mature trees within the front setback, one mature tree at the centre of the council's nature strip and one semi-mature tree - within the south western part of the rear yard. 8 Adjoining the land to the north is Nos 33-35 Henry Street, a pair of single-storey semi - detached dwellings with a hipped roof with the ridge at 86.3m AHD. These dwellings are set back 3.5m from Henry Street and No 35 Henry Street is set back 1m from the common side boundary with the subject land. 9 To the east of the subject land, on the opposite side of Henry Street, is a recently constructed two-storey detached dwelling and some older style attached and detached dwellings. 10 Henry Street is characterised by a mixture of dwelling types, including semi-detached dwellings, terraced-style dwellings and residential flats. From viewpoints in the street expansive views are to be had towards the west and northwest over Queens Park. Relevant planning controls Waverley Local Environmental Plan 1996, (WLEP) 11 Under the provisions of the WLEP the land is zoned Residential 2(b) and the proposal is permissible with consent. 12 The specific aims relating to housing and heritage conservation are stated in cl 3 of the WLEP. The zone objectives and land use table are found in cl 10 of the WLEP. Waverley Development Control Plan No 2 - Dwelling-house and Dual Occupancy Development, (DCP2) 13 DCP2 Version 4, that came into effect on 1 May 2003 applies to the land under a savings provision. 14 Under Part 3 of DCP2 the building height objectives are: (i) To minimise loss of views from other dwellings. (ii) To minimise loss of privacy to other dwellings. (iii) To maintain acceptable solar access to dwellings and adjoining open-space. (iv) To minimise bulk-related impacts of dwelling house development. (v) To ensure that visual impacts of scale of dwelling-house development are acceptable.