Bensen & Partners Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1193

Land and Environment Court of New South Wales

CITATION : Bensen & Partners Pty Ltd v Woollahra Municipal Council [2010] NSWLEC 1193

APPLICANT Bensen & Partners Pty Ltd PARTIES : RESPONDENT Woollahra Municipal Council

FILE NUMBER(S) : 10324 of 2010

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Section 96 modification to courtyard wall feature. Categorisation as stairs to roof top terrace, acoustic and visual amenity

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Woollahra Heritage Conservation Area Development Control Plan 2003

DATES OF HEARING: 16 July 2010

EX TEMPORE JUDGMENT DATE : 16 July 2010

APPLICANT Ms S Hill (solicitor) SOLICITOR Susan Hill & Associates Lawyers Pty Ltd LEGAL REPRESENTATIVES:

RESPONDENT Ms M Hawley (solicitor) SOLICITOR Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey J

16 July 2010

10324 of 2010 Bensen & Partners Pty Ltd v Woollahra Municipal Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT Background. 1 This appeal is against council's refusal of a s96 application to modify a development consent for alterations to a 2 - storey dwelling house located at 92 Fletcher Street, Woollahra. The consent was granted for the alterations and included the construction of a new garage with access to the rear lane and associated landscaping. 2 The new garage is connected to the dwelling via an internal courtyard. As a consequence of the development, the internal northern wall of the garage has included a 'decorative feature' comprising a set of ledges, which are to allow selective placement of plants to achieve a 'Mexican theme setting'. The ledges are in the form of steps, which lead to an awning over the garage door where there is possible access to the garage roof. The roof area has been tiled and incorporates lighting. 3 The application is for the approval of the modification works incorporating the ledges, awning and landscaping. Consequently, the issues identified for the appeal are summarised as follows: * Acoustic and visual privacy; on the basis that the design enables access to the garage roof for possible use as a roof top terrace. * Safety; the structure presents unacceptable safety risks if the ledges are used a stairs because there is no BCA compliance. * Public interest matters. Planning controls 4 The following controls relevantly apply: * Woollahra LEP 1995; under which the site is within the Residential 2(b) zone and the proposal is permissible with consent. * Woollahra Heritage Conservation Area DCP 2003; under which the site is in the Fletcher Precinct. The subject property is identified as a Victorian Corner Shop. Insofar as this DCP contains various development controls that the proposal complies with, section 3.4.9 deals with parking and garages and section 3.4.12 contains controls for acoustic and visual privacy. The evidence 5 This application was subject to a joint planning assessment (Exhibit 2) by Mr A Rowan (Planner for council) and Mr T Moody (planner for applicant). Objections were lodged by the neighbouring property owner on the basis that the approval of the ledges and retention of the roof works would facilitate its use as a roof top terrace, which would adversely impact on their acoustic and privacy amenity. 6 Ms Armstrong, the property owner gave evidence that while a roof top terrace was initially sought, this component was deleted from the development application and there was no intention to use the garage roof as a terrace. Instead the intention was to create the Mexican theme courtyard with ledges for display of plants that also allowed for varying shadows on the wall. This component is integrated with the landscaping species.