Richardson v Lake Macquarie City Council [2004] NSWLEC 744

Land and Environment Court of New South Wales

CITATION : Richardson v Lake Macquarie City Council [2004] NSWLEC 744 APPLICANT Paul Richardson PARTIES : RESPONDENT Lake Macquarie City Council FILE NUMBER(S) : 11497 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- What weight should be given to the new statute gazetted in 2004 - inadequate documentation - privacy of neighbours - streetscape - impacts were accentuated by site being a narrow allotment. LEGISLATION CITED: Lake Macquarie Local Environmental Plan 1984 Lake Macquarie Local Environmental Plan 2004 CASES CITED: DATES OF HEARING: 17/12/2004 EX TEMPORE 12/17/2004 JUDGMENT DATE :

APPLICANT Mr A McKelvey, solicitor SOLICITORS Sparke Helmore LEGAL REPRESENTATIVES: RESPONDENT Mr G Long, solicitor SOLICITORS Lake Macquarie City Council Legal Section

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

17 December 2004

11497 of 2003 Paul Richardson v Lake Macquarie City Council

JUDGMENT

1 This was a class 1 appeal, No. 11497 of 2003, between Paul Richardson and Lake Macquarie City Council in regard to the refusal of DA 2003/0607 for five villa homes and townhouse style dwellings at No. 24 Kenibea Avenue, Kahibah. The site was rectangular and had frontage of about 20 m and depth of 106 m, giving a total area just over 2000 sq m. There were a few trees on the allotment. The existing house at the street front was to be demolished. 2 The land sloped up from the road to the brow of a hill so that it became more level towards the rear. At the rear was the back yards of houses fronting Kahibah Road. The land was oriented approximately north-west to south-east, with the north-west end being the street frontage. 3 On the north-east side was No. 22 Kenibea, a lot of about the same size as the proposal, with a house on the street end and a large stand of trees on the rear half of the land. On the south-west side was No. 26, and along the street, Nos. 28 and 30. These lots were only about half the length of No.24, and behind them were villa homes accessed by a driveway at No. 32 Kenibea. These villas were excavated into the hill and built with concrete slab on ground. In places, due to the excavation, there were 2 m high retaining walls at the boundary with the proposal with 1.8 m high colorbond fence on top. 4 The proposal, by contrast, adopted a minimal excavation design and lightweight construction. The five units were lined up along the length of the lot. Units 1 and 2 were single storey; units 3, 4 and 5 at the rear were two storey. Each had a double car garage separating one unit from the next. The turn-in off the driveway to each garage provided a visitor car space for each unit. The driveway adjoined Nos. 26 and 32. The living rooms of the units faced at an angle towards No. 22. 5 The units had been designed quite well to be at an angle to the length of the lot in order to get good solar orientation. Each living room had an external deck directly off the living room. Due to the slope at the street front, units 1 and 2 had their street side floor level about 1.5 to 2 m above ground, as did the existing houses on Nos. 22 and 26. The decks, as a result, were at about the same elevation. 6 Due to the orientation towards No. 22, all decks had privacy screens on that side, ostensibly to prevent overlooking. There was also a border hedge of Lilli Pillies to be planted along the boundary with No. 22 that would eventually further reduce overlooking. 7 There was an amended drawing AD01 that further extended the privacy screens and added screened fences and planting in the front setback. 8 There were a number of other clarifications of the plans and amendments during the hearing. The issues were: (1) Privacy The development overlooks adjoining properties. The deck on unit 2 overlooks onto No. 22 Kenibea Avenue. The living room and bedrooms of units 3, 4 and 5 overlook No. 22 Kenibea Avenue. The bedrooms of the upper level of units 3 and 4 overlook No. 32 Kenibea Avenue.