Marinovic v Willoughby City Council [2011] NSWLEC 1187

Land and Environment Court New South Wales

Medium Neutral Citation: Marinovic v Willoughby City Council [2011] NSWLEC 1187 Hearing dates: 3, 4 and 15 March 2011 Decision date: 08 July 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is dismissed. (2)Development Application DA 2010/533 for a multi level dwelling, driveway and swimming pool on Lot 336 in DP 330166 at 102 The Bulwark Castlecrag is determined by refusal. (3)The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION - heritage, development standard, SEPP1 objection, height, bulk and scale Legislation Cited: Environmental Planning and Assessment Act 1979 Willoughby Local Environmental Plan 1995 Willoughby Development Control Plan State Environmental Planning Policy No 1 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827;(2007) 156 LGERA 446 Winton Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 Category: Principal judgment Parties: Frances Marinovic (Applicant)

Willoughby City Council (Respondent) Representation: Counsel Mr McKee Solicitor (Applicant)

Ms Irish Counsel (Respondent) Solicitors McKees Legal Solutions (Applicant)

Mallesons Stephen Jaques (Respondent) File Number(s): 10800 of 2010

Judgment Summary 1The applicant seeks consent to construct a multi-level dwelling, driveway and swimming pool on an undeveloped site, located in the Griffin Conservation Area, being Lot 336 in DP 330166, known as 102 The Bulwark, Castlecrag. 2The site is an irregular shaped allotment immediately adjacent to the Castle Haven Reserve, which forms its boundaries on all sides except for the access handle from The Bulwak. The northern side of the access handle is bordered, along its entire length, by a public walkway/drainage reserve originally designed by Walter Burley Griffin to connect The Bulwark with the foreshore reserve. According to the evidence, the site itself and the adjacent access way were laid out by the Griffins as part of the planning of the Castlecrag (Haven) estate. 3Willoughby Council does not support the original development application (DA 2010/533) or its amended form. It contends that it is inconsistent with the Specific Objective of the Zone 2 (a2) - Residential "A2" Scenic Protection Zone under Willoughby Local Environmental Plan 1995 ("WLEP") - which applies - and, the management policies for the Griffin Conservation Area in Part H.3 of the Willoughby Development Control Plan (WDCP). In short Council's case is that the development is not subordinate to the landscape but in fact dominates the natural qualities of the locality. 4The experts agree that the development is in breach of the 2 storey maximum building height development standard in cl 18 of the Willoughby Local Environmental Plan 1995 ("WLEP"), the maximum draft development standard for building height under the Draft WLEP 2009 and the maximum building envelope and the building height plane development controls in Parts D and H of the WLEP and the Griffin Conservation Area. It also is in breach of the setback controls under the WDCP on its northern, western and southern boundaries. The applicant contends however that the specific constraints of the site dictate the proposed design and a redesign to reduce the height and step the building down the slope could potentially have a greater visual impact. It submits that a variation to the height development standard in cl 18 of the WLEP 1995, under State Environmental Planning Policy No 1 (SEPP1), is both reasonable and necessary on the facts because the underlying objective of the development standard is still achieved. 5In order to appreciate the evidence, the Court commenced the hearing of this appeal, under s97 (1) of the Environmental Planning and Assessment Act 1979, with a view of the site and locality. It also inspected the adjoining properties and - with the parties and several of the experts - walked through the Castle Haven Reserve to the harbor foreshore to observe the site from several perspectives. At that time, it also received the oral evidence of several objectors including; the adjoining residents, a representative from the Walter Burley Griffin Society and The Retreat Reserve Bushcare group. 6The Court was also assisted by expert evidence. Mr Sanders (town planner), Mr Rogers (traffic), Mr Logan (heritage) and Mr Weirick (landscaping) gave expert evidence for the council. Mr Fletcher (town planner), Miss Sonter (landscaping), Mr Brooks (heritage) and Mr Fielding (traffic), gave expert evidence for the applicant. 7After a consideration of the evidence and the law, I have decided that the site is not suitable for this development. It is an over development of the site which is visually intrusive and dominates the landscape and natural scenic qualities of the locality. Furthermore, it is inconsistent with the Specific Objective of the Residential 2(a2) Scenic Protection Zone and the management policies for the Griffin Conservation Area in the WDCP, which are relevant considerations under clauses 13D and 17(d) of the WLEP and s 79C of the EP & A Act. The development is, as council contends excessive in height, bulk and scale and is not subordinate to the natural landscape. I also find the proposed driveway is unsafe because its gradient does not comply with the Australian Standard or council's code and is at odds with the Griffin Conservation Controls.