Small v Woollahra Municipal Council [2008] NSWLEC 1239

Land and Environment Court of New South Wales

CITATION : Small v Woollahra Municipal Council [2008] NSWLEC 1239 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Andrew Small PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11102 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Application :- stormwater drainage, sewer, frontage, parking, privacy, bulk, overland flooding, landscaping, zoning

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

DATES OF HEARING: 21/05/2008; 22/05/2008;

EX TEMPORE JUDGMENT DATE : 22 May 2008

APPLICANT Mr S. Griffiths, solicitor Ms N. Lowe, solicitor Instructed by R.V Vickers LEGAL REPRESENTATIVES: of Pike Pike & Fenwick

RESPONDENT Ms J. Hewitt, solicitor and Mr T. Davis, solicitor of HWL Ebsworth

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

22 May 2008

11102 of 2007 Andrew Small v Woollahra Municipal Council

JUDGMENT 1 This is a Class 1 appeal number 11102 of 2007 between Dr Andrew Small and Woollahra Council in regard to the refusal of a proposal to demolish an existing house and build a three storey building containing three flats and an underground car park for six cars at 128 Bellevue Road, Double Bay. 2 The site is part way up the road that it follows the curves of Bellevue Hill. The site is on the lower side of the road. The land slopes downhill towards Carlotta Avenue. The site is near the apex of a convex curve in the road and this topography has created a fan-shaped allotment for the subject site. The site is about 880 square metres in area with a rear boundary of about 25 m and a 13.6 m frontage at the present time. The statutory frontage required is fifteen metres. The uphill neighbouring property has agreed to a boundary adjustment to provide a 15.2 m frontage so there is compliance with cl 10B of the Woollahra Local Environmental Plan 1995. 3 The proposal has a two car wide drive entry off the street and the access to the underground car park is by car lift. The entry drive allows one car to wait within the property while another car goes into or comes out of the car lift. The design means cars will enter and leave the site in a forward direction which is a superior safety arrangement to the houses along Bellevue Road. Most of them have to reverse in one direction or another in the street reserve. The residents advise the speed of cars, the curves in the road and on-street parking make reversing a hazardous manoeuvre. A traffic and parking study in exhibit F verifies the design and says it will work. 4 The units are designed with an entry stairway from the street down the western side boundary that adjoins 130 Bellevue Road which is a very large detached house. The units have another access via a lift and stairs from the car park to each floor. The proposal has one unit on the top floor, the roof of which is about level with the street, and it has a large terrace facing south across the valley. 5 On the middle floor there are two units. The northern unit has living rooms facing north-west across one terrace, and it has another terrace on the northern side within the front setback. The southern unit has bedrooms and a study looking south on this middle level with stairs down to the bottom level. The bottom level has the living room of that unit and its south-facing ground level terrace and plunge pool. The underground car park is behind this unit on the bottom level. 6 The building has a ten metre rear setback with landscaped grounds in that area. The existing large trees in this rear area are to be kept, including along part of the side setback with No. 130. A large cedar in the front yard is to be removed due to the construction process however it is to be replaced with a chinese elm. 7 The amended plans also allow for additional deep soil planting area and increased landscape vegetation. A large amount of supplementary vegetation is proposed in the front, the rear and the east­side areas and part of the west side. The entry stairs coming downhill on the west side restricts planting area for part of that space.Number 130 has a high masonry side boundary wall adjoining most of the stairway that will protect it from noise and people on the stairs. In the locations adjoining the house on No.130 the high fence on the boundary will screen any persons however No.130 has very few if any windows on that elevation. 8 Below the site are houses built further downhill on Carlotta Avenue being Nos. 30, 32 and 34. Number 36 Carlotta Avenue is a battle-axe lot that has townhouses built at the uphill end adjoining the rear boundary of Nos 124 and 126 Bellevue Road. 9 Numbers 124 and 126, the eastern neighbour of the subject site, has a development consent for five units that are not yet built. In that approval an easement for stormwater drainage through No.s 32, 34 and 36 Carlotta was included. Unfortunately the grantors of that easement had terminated their agreement to it. As a result action via the Conveyancing Act 1919 or the Land and Environment Court 1979 may have to be taken if a new agreement cannot be reached. 10 The easement and the stormwater pipe design was shown by engineering evidence in this case to be adequate to take stormwater from No. 128 as well. This may enable compliance with cl 25(2) of the Woollahra Local Environmental Plan 1995 . Number 128 and No. 36 Carlotta have only the corner of allotments that adjoin each other. 11 Should this appeal be upheld and approval foreshadowed cl 25(2) would require the deferral of any Court orders to that effect until an easement is registered. The subject appeal had been through a s 34 conference that had enabled the parties to resolve all their differences apart from cl 25(2). They come to the Court with consent orders. 12 The Respondent was represented by: o Ms J Hewitt, solicitor, o Mr T Davis, solicitor, o Mr Gray, Arborist, and o Mr Schofield, Town Planner. 13 The Applicant was represented by: o Mr S Griffiths, solicitor, o Ms N Lowe, solicitor, o Mr A Betros, town planner o Mr Karikios, civil engineer o Mr Brenchley, architect and o Mr Gatenby, Landscaper. 14 A number of Objectors gave evidence, namely Mr and Mrs Adler of 30 Carlotta Avenue, Mrs Mackey, 131 Bellevue, Mr Di Veroli, architect representing the units at 36 Carlotta and Mrs G Gollen of 135 Bellevue Road. The written objections of a number of other persons in the locality were in evidence. 15 A summary of their concerns are;