Heath v Woollahra Municipal Council [2008] NSWLEC 40

Land and Environment Court of New South Wales

CITATION : Heath v Woollahra Municipal Council [2008] NSWLEC 40

APPLICANT Timothy Clarke Heath PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 11069 of 2007

CORAM: Brown C

KEY ISSUES: Appeal :- demolition of an existing dwelling and deconstruction of a new dwelling, swimming pool, decks and landscaping - conditions in dispute

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 15/01/08

EX TEMPORE JUDGMENT DATE : 15 January 2008

APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

15 January 2008

11069 of 2007 Timothy Clarke Heath v Woollahra Municipal Council

JUDGMENT 1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the imposition of two conditions on the approval of DA 416/2007/1 by Woollahra Municipal Council (the council) for the demolition of an existing dwelling and deconstruction of a new dwelling, swimming pool, decks and landscaping at 30 Suttie Road, Bellevue Hill (the site).

2 The proceedings were conducted as an On Site Hearing on 15 January 2008 and the judgement reflects the relevant contents of the Statement of Facts and Contentions and the findings given on-site. 3 The conditions in dispute are: Condition C.1(a): the front setback of the first floor level is to be increased by 1.9 m across the entire front elevation. Condition C.1(d): the front setback of the swimming pool used to be increased by 4.5 m. 4 Woollahra Residential Development Control Plan 2003 (DCP 2003) provides requirements for Building Size and Location. Objective O 5.2.3 seeks: To ensure the form and scale of development is not excessive and maintains that the continuity of building forms and front setbacks in the street. 5 The performance criteria in DCP 2003 require the front setbacks to be consistent with those of adjoining buildings. Where the setback of an adjacent building is greater than 3.0 m, this may be achieved by ensuring development is setback the same distance as one or the other of the adjoining buildings or the average of the setbacks of the two adjoining buildings (C 5.2.2). Swimming pools are to be located at the rear of properties (C 5.3.16).