Pietranski v Waverley Council [2009] NSWLEC 1278

Land and Environment Court of New South Wales

CITATION : Pietranski v Waverley Council [2009] NSWLEC 1278

APPLICANT Tim Edward Pietranski PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10308 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to existing dwelling impact on residential amenity

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

Pafburn v North Sydney Council [2005] NSWLEC 444 CASES CITED: Tenacity Consulting v Waverley Council [2004] NSWLEC 140 Westwood v Waverley Council [2004] NSWLEC 574 Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 3 August 2009

DATE OF JUDGMENT: 25 August 2009

APPLICANT Mr M McMahon (solicitor) SOLICITOR LEGAL REPRESENTATIVES: ME McMahon & Associates RESPONDENT Mr S Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pearson C

25 August 2009

10308 of 2009 Tim Edward Pietranski v Waverley Council

JUDGMENT 1 This is an appeal against conditions imposed by Waverley Council (the council) on the granting of consent to a development application made under the Environmental Planning and Assessment Act 1979 (the Act) for alterations and additions to an existing house at 58 Denham Street Bondi Beach (the site). Site and its context 2 The site is located on the western side of Denham Street between Bondi Road and Edward Street, and has an area of 250.6 sq m with a small fall from the south to the north side. The site is occupied by a single storey semi detached dwelling with a garage within the front yard. The adjoining semi is to the south, and to the north is a four storey residential flat building facing Edward Street. To the south are semi detached dwelling houses, and to the rear are semi detached dwellings and single to two storey buildings, which face Castlefield Street. 3 The development application was for approval of alterations to the rear ground floor of the existing dwelling including a deck to the rear of the dwelling; addition of a first storey including a study, two bedrooms, a bathroom and a robe area; and addition of a swimming pool in the rear yard. Planning Controls 4 The site is zoned 2(c1) Residential – Medium and High Density under Waverley Local Environmental Plan 1996 (the LEP). The development is permissible with consent. 5 Waverley Development Control Plan 2006 (Amendment No 2) (the DCP) applies to the site. The parties agree that Waverley DCP 2006 (Amendment No 4), which was adopted on 7 October 2008, only applies to applications lodged after 5 November 2008, which is after the application the subject of these proceedings was lodged. The relevant generic controls under Part D1 Dwelling House and Dual Occupancy Development of the DCP as contended by the council relate to height, size and bulk, setbacks, privacy and landscaped open space. The site is within the Imperial Avenue precinct under the DCP, and relevant controls are provided in Part F3. Background 6 The Statement of Facts and Contentions filed by the applicant outlines the background to the proposal. Development Application D/105/2008 seeking approval for the addition of a second storey at the rear of the existing house and the addition of a pool was lodged on 10 March 2008. During the notification period three objections were received. The council's Development & Building Unit prepared a report recommending conditional approval. On 6 December 2008 the council granted consent. Condition 2 of the development consent is as follows: The proposal shall be amended as follows: