Podgoetsky v Woollahra Council [2008] NSWLEC 1483

Land and Environment Court of New South Wales

CITATION : Podgoetsky v Woollahra Council [2008] NSWLEC 1483

Applicant: Simone Podgoetsky PARTIES : Respondent: Woollahra Muncipal Council

FILE NUMBER(S) : 10981 of 2008

CORAM: Roseth SC

KEY ISSUES: Section 96 Modification :-

DATES OF HEARING: 8 December 2008

EX TEMPORE JUDGMENT DATE : 8 December 2008

Applicant: LEGAL REPRESENTATIVES: litigant in person Respondent: Mr P Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Roseth SC

8 December 2008

10981 of 2008 Simone Podgoetssky v Woollahra Municipal Council

JUDGMENT 1 Senior Commissioner: This is an application under s96 of the Environmental Planning and Assessment Act 1979 to amend a consent issued by the Land and Environment Court on 30 June 2006 in respect of a new house at 57 Latimer Road, Bellevue Hill. 2 The only amendment in dispute is the middle one of three retaining walls in the front of the property. The wall was not built according to plan. The owner of the adjoining property, 112 Balfour Road, objects to the change on the grounds that it impacts adversely on the privacy of the front yard. The council's planning expert, Mr S McDonald, wants the retaining wall pulled back from the common boundary by 2m. The project's architect and designer, Mr G Bensen, put the applicant's case by noting that the retaining wall, as built, would have the same impact on 112 Balfour Road as the retaining wall as approved. 3 The problem arises from the fact that when the Court approved the proposal in 2006, the retaining walls were described in words in a condition, instead of being depicted in a drawing. As language is imprecise, it is difficult to know exactly what the condition means. It does not require the retaining walls to set back 2m from the common boundary. 4 I do not think that the retaining wall, as built, has any impact on the privacy of 112 Balfour Road, the front yard of which is completely overlooked from the street. The terracing created by the retaining wall does not provide an opportunity for a person to stand there and look into 112 Balfour Road. (This is not to say that it is physically impossible to get to the terrace; only that no sane person would want to do it.) However, the swimming pool fence, which has a small return on the common boundary, may be a mildly disturbing feature to the neighbour; certainly not an eyesore but disturbing for a neighbour who is in any case ill disposed to the whole of the development on the subject site. 5 Given that the requirements for the retaining walls and pool fence have never been properly indicated on any drawing, Mr Bensen undertook to prepare a drawing that would show the line of the pool fence designed so that it is only 300mm above the common wall between the two properties thus causing the least possible disturbance to 112 Balfour Road. Mr McDonald was in agreement with this solution.