Land and Environment Court of New South Wales CITATION : Zaia Design Architects v Woollahra MC & Anor (No. 2) [2008] NSWLEC 1139 APPLICANT Zaia Design Architects PARTIES : 1st RESPONDENT Woollahra Municipal Council 2nd RESPONDENT Resham Singh and Kalwant Kour FILE NUMBER(S) : 11461 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- Drainage easement cl 25(2) of LEP, dual occupancy, impact on adjoining properties, privacy view sharing, conditions LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan DATES OF HEARING: 19/02/2008 EX TEMPORE JUDGMENT DATE : 19 February 2008 APPLICANT Mr Green, solicitor Ms J. Reid, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: 1st RESPONDENT Mr S. Simington, solicitor of Lindsay Taylor Lawyers 2nd RESPONDENT Ms H. Irish, barrister instructed by Mr P. D. McLachlan of Aitken McLachlan & Thorpe JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 19 February 2008 11461 of 2005 Zaia Design Architects v Woollhara Muncipal Council JUDGMENT 2 1 The applicant in these proceedings is here today with an agreement for a drainage easement over adjoining properties. 2 By way of background the applicant appealed against Council's refusal of the development application for demolition of an existing dual occupancy and the construction of a new part two and part three-storey dual occupancy development with underground car parking for five vehicles on the land known as number 8 Dalley Ave Vaucluse. I handed down judgement of the merits of the development application 30 June 2006 wherein I found that apart from the need to satisfy the provisions of clause 25(2) of the Woollahra Local Environmental Plan I would be prepared to determine the application by the granting of consent. The matter is before me today with agreement to satisfy this clause with a formalized drainage easement through adjoining properties. Clause 25(2) requires a formal drainage easement to be in place prior to the issuing of development consent, in this case before the formal Orders of the Court are issued granting development consent. 3 Prior to the final orders being issued by the court the second respondent in these proceedings, the adjoining owner, seeks to be heard on the conditions of consent pertaining to the height of the proposed landscaping to be carried out on the subject property. The parties have discussed the concerns of the adjoining property owner and the applicant is prepared to maintain the height of boundary plantings and certain other trees in the spirit of cooperation. I am satisfied that the concerns of the neighbour in terms of interfering with views have reasonably been taken into consideration. The applicant has also agreed to pruning and lopping the existing magnolia tree on a the opposite boundary in the rear yard to open up views towards Kincoppell and the Harbour. This unusual course of action has been agreed to in the circumstances of the case. However as a long term measure it would be an undesirable precedent and onerous for the owners of a property if a condition of consent were to be imposed to require an existing tree to be maintained at a certain height or RL. 4 I am satisfied that the court is now in a position to issue formal orders in this matter by the granting of consent, subject to the agreed conditions. 5 Accordingly on receipt of the amended conditions agreed today and a complete set of plans the formal Orders of the Court will be: 1. The appeal in respect of the property known as 8 Dalley Avenue Vaucluse is upheld. 2. The development application submitted to Woollahra Council, as amended and shown in the plans filed with the Court 6 March 2008, is approved subject to the conditions contained in Annexure A. 3. The exhibits may be returned to the parties with the exception of the amended conditions and the amended plans. ___________________ J S Murrell Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.