Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094

Land and Environment Court New South Wales

Medium Neutral Citation: Luke and Warnock v Lane Cove Council [2011] NSWLEC 1094 Hearing dates: 22 and 23 November 2010 and 2 December 2010 (documents) Decision date: 08 April 2011 Before: Murrell C Decision: Appeal Upheld Catchwords: DEVELOPMENT APPLICATION: Erection of three storey dwelling; impact on views from neighbouring properties; impact of excavation on tree and adjoining property; and inconsistencies with Dwelling House Code Legislation Cited: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987 Lane Cove Local Environmental Plan 2009 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Ross Luke and Kaye Warnock - Applicant Representation: Mr P Tomasetti SC (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10655 of 2010

Judgment 1The applicants in these proceedings are seeking to carry out major alterations and additions to an existing dwelling house on the land known as No 99 Northwood Road, Northwood on the western foreshore of Woodford Bay. The Council refused the development application and the applicant has appealed to this Court under section 97 of the Environmental Planning and Assessment Act 1979. 2The land falls steeply from the road to Woodford Bay with the dwelling set back from the water about 40 metres. In addition to the brick and tile dwelling house to the east, there is a double garage on the southern boundary and a boat shed on the waterfront. The aerial photograph at Figure 1 shows the site in its context. 3The subject site is a battle axe allotment and is comprised of three lots: Lot 1 DP 301423 - the access handle is 126 sq m; Lot 1 DP 128328 - the lot that contains the existing dwelling house is 600 sq m; and Lot 1 DP 942684 - the lot between the existing dwelling house and Woodford Bay is 574 sq m yielding a total site area of about 1300 sq m. 4To the north of the subject site there is a three (3) storey dwelling house and pool constructed relatively close to Woodford Bay. To the immediate south there is a long driveway that serves a battleaxe waterfront with a two-storey dwelling house and pool orientated towards Woodford Bay. To the east of the subject site is a two storey dwelling known as No. 101 Northwood Road and this property has an eastern frontage to the road and a swimming pool adjacent to the common boundary with the subject site. The access handle for the subject site is on the northern boundary of No.101. 5The proposal before the Court includes: alterations and additions to the existing three storey dwelling; an internal lift; internal alteration including extension to the ground floor; demolition and reconstruction of the top level (third storey); demolition of the existing garage; a new double garage with loft towards the east of the site including excavation for the garage; a pool to the west setback over 30 m and behind the foreshore building line.