Hooshang Zibai v. Pittwater Council [1998] NSWLEC 90

Land and Environment Court of New South Wales

CITATION : Hooshang Zibai v. Pittwater Council [1998] NSWLEC 90 APPLICANT Hooshang Zibai PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 20083 of 1998 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979 CASES CITED: DATES OF HEARING: 31/08/98 EX TEMPORE JUDGMENT DATE : 08/31/1998

APPLICANT Mr G Green Pike Pike & Fenwick

LEGAL REPRESENTATIVES: RESPONDENT Mr Parry Mallesons Stephen Jaques

JUDGMENT:

1. In this matter Mr Zibai seeks approval to demolish an existing house and construct a new but relatively modest two storey brick dwelling within the current footprint, at 19 Kanimbla Crescent, Bilgola Plateau, high above Newport Beach, on the eastern escarpment to its north.

2. The proposed dwelling house will be within the relevant residential zone and requires a building approval from the council or the court. When it was not forthcoming from the council an appeal was commenced in class 1 of the court's jurisdiction on 4 June this year. Council subsequently refused the application under delegated authority on 16 June 1998.

3. The proposed house will be built to the west of the site to preserve the existing landscape elements, and the northern neighbours' viewline, and will occupy much less than 40 percent of the site area, indeed close to 20 percent.

4. The council's principal concerns are its height and the consequences thereof, including a cavernous undercroft area which forms part of the design and has been adopted instead of seeking approval to do some excavation on what is a steeply sloping site, so that the proposed dwelling would sit lower in the slope.