Leal v Woollahra Municipal Council [2008] NSWLEC 1312

Land and Environment Court of New South Wales

CITATION : Leal v Woollahra Municipal Council [2008] NSWLEC 1312

APPLICANT Michael Leal PARTIES : RESPONDENT Woollahra Muncipal Council

FILE NUMBER(S) : 10348 of 2008

CORAM: Hoffman C

KEY ISSUES: Development Application :- garage and loft, conservation of streetscape, bulk, enclosure, loss of amenity and privacy

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Woollahra Local Environmental Plan 1995 Paddington Development Control Plan 1999

DATES OF HEARING: 24/07/2008

EX TEMPORE JUDGMENT DATE : 24 July 2008

APPLICANT Mr D. Wilson, barrister, Instructed by Mr D. Thomas, solicitor, LEGAL REPRESENTATIVES: of Wellings Lawyers

RESPONDENT Mr J. Merlino, solicitor, of Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

24 July 2008

10348 of 2008 Michael Leal v Woollahra Municipal Council

JUDGMENT 1 This is a Class 1 appeal between Leal and Woollahra Council in regard to the refusal of a single garage with loft over the rear of No. 136 Paddington Street, Paddington. 2 Paddington Street is one of the few long straight streets in Paddington with a magnificent canopy of trees arching over the roadway and rows of intact, well-maintained terraces and some detached houses on either side. At the rear of the subject site in Paddington Lane being a laneway serving houses in both Paddington Street and Windsor Street. 3 The proposed garage and loft is directly on the rear boundary and would have a gable roof. It is an approximate match of the existing garage and loft over its neighbour No. 138 Paddington Street. The other neighbour at No. 134 has an open backyard with no garage and a large eucalypt tree almost on the common boundary of No. 136. 4 No. 136 has an existing roller door entry and a concrete parking space at the rear lane level with steps at about the halfway point of the backyard up to a terrace outside the living rooms of the house. There is a tree on No. 136 within the footprint of the proposed garage, apparently it has been given consent for removal due to its impact on the garage at No. 138. 5 The proposed loft on No. 136 is to be reached by stairs adjacent to the boundary of No. 138, but due to the masonry fence between, and the stairs entering the envelope of the garage halfway up, there is no chance of overlooking the adjoining private open space. Persons on the stairs could see some rear windows of the adjoining terrace houses. 6 The issues between the parties before this hearing, and before amended plans were produced, had been in summary: o under the Woollahra Local Environmental Plan 1995 , the development did not comply with the objectives of protecting and enhancing natural landscapes, and o the retention of trees and planting of suitable replacement trees in the appropriate location, and o ensuring that the development does not detract from the heritage significance of the conservation area, and o consideration of the site coverage, set-backs and levels under the Paddington Development Control Plan, 1999 (DCP); the landscaping and private open space requirements; and requirements for acoustic and visual privacy for neighbours; stormwater management, and o the public interest, which had arisen through objections to the proposal. 7 At the time of hearing the amended plans had satisfied the Respondents' concerns and draft conditions had been agreed except for conditions C1, a & e. The former deals with matching up the length of the proposed garage with that on No. 138, and the latter deals with frosting the lower pane of the loft window facing the laneway.