Beraldo Design Pty Ltd v Waverley Council [2007] NSWLEC 449

Land and Environment Court of New South Wales

CITATION : Beraldo Design Pty Ltd v Waverley Council [2007] NSWLEC 449

APPLICANT Beraldo Design Pty Ltd PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10300 of 2007

CORAM: Tuor C

KEY ISSUES: Development Application :- Construct a three-storey dwelling, view loss, streetscape and character, height, bulk and scale

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996

CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 13/07/2007

DATE OF JUDGMENT: 17 July 2007

APPLICANT Mr J. Hones, solicitor of Hones LaHood LEGAL REPRESENTATIVES: RESPONDENT Mr A. McKelvey, solicitor of Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

17 July 2007

10300 of 2007 Beraldo Design Pty Ltd v Waverley Council

JUDGMENT 1 This is an appeal against the refusal by Waverley Council (the council) of a development application (507/2006) to demolish an existing house and construct a new three storey house at 155 MacPherson Street, Bronte (the site). 2 The preliminary s34 conference was held on site on 13 June 2007 and a number of residents gave evidence. No expert evidence was provided although the architect for the proposal and council's planning manager were available to answer questions. No agreement was reached and the parties did not consent to the proceedings being disposed of with or without a further hearing (s 34(3)(b)(i)). 3 The applicant has prepared amended plans which lower the building by approximately 0.5 m. The parties have subsequently agreed to my disposing of the matter under s 34(3)(b((ii). The site and its context 4 The subject site is located on the southern side of MacPherson Street at the corner of Collingwood Street. The site is rectangular in shape with a frontage to MacPherson Street of 9.55m, a 26.29m frontage to Collingwood Street and a site area of 251 sq m. 5 The site is adjoined to the east (157 MacPherson Street), by a single-storey residence and to the south (2 Collingwood Street), by a two-storey dwelling. The immediate vicinity is characterised by a variety of two and three-storey dwellings: 159 MacPherson Street, is a two-storey 'Victorian' style residence and 161 MacPherson Street is a three-storey dwelling. 153 MacPherson Street to the west, at the corner of MacPherson and Collingwood Streets is a three-storey residential flat building. 6 MacPherson Street sits on the south ridge of the Bronte Gully with the site being located approximately 300m from the Pacific Ocean. Background 7 The development application was lodged on 8 September 2006. Council notified the application to surrounding properties and four submissions were received. The application was amended and re-notified, a further two submissions were received. 8 A report to council's Building and Development Committee on 27 February 2007 recommended approval of the application. Council deferred the application for a site inspection and informed the applicant that "only a two-storey house (is) achievable on the site. Any third level to the building should be within the roof space." 9 Following the s34 conference on site leave was granted for the applicant to rely on further amended plans. These are the plans before the Court on 13 July 2007.