Gerendas v Waverley Council [2011] NSWLEC 1284

Land and Environment Court New South Wales

Medium Neutral Citation: Gerendas v Waverley Council [2011] NSWLEC 1284 Hearing dates: 27, 28, 29 July 2011 Decision date: 29 September 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal dismissed Catchwords: Development application - dual occupancy - site specific design guidelines - unzoned site Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 Waverley Development Control Plan 2010 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Zhang v Canterbury City Council [2001] NSWCA 167 Category: Principal judgment Parties: Steven Gerendas (Applicant) Waverley Council (Respondent) Representation: Mr G Christmas, Apex Planning and Environment Law (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) Mr M Wright (Applicant) Mr G Newport (Respondent) File Number(s): 10375 of 2011

Judgment 1This is an appeal under s97 of the Environmental Planning and Assessment Act 1979 against the refusal by the respondent Council of consent to development application DA-652/2010 for the erection of a dual occupancy, including site preparation works and removal of a fig tree, on Lot 2, DP 1073097, Arnold Street Queens Park (the site). 2The site is currently vacant, and was created through the closure of an unmade portion of the eastern end of Arnold Street at its intersection with Bourke Street. The site is irregular in shape, with a 15.65m frontage to Bourke Street to the east, a 20.1m frontage to Arnold Street to the west, and a variable length of between 25.4m to 25.8m, resulting in a total site area of 446sqm. The site is level with Bourke Street at its eastern boundary, and level with Arnold Street at its western boundary; there is a significant fall, and Bourke Street is approximately 9m higher than Arnold Street. 3The proposed dual occupancy has a basement/garage accessed from Arnold Street, and four levels above. The dwelling at Arnold Street above the basement car parking has two levels, with the main entry and pedestrian access from Arnold Street. The upper dwelling has two levels, with pedestrian access from Bourke Street. The upper floor of the upper dwelling is configured within a pitched roof form; the ridgeline of the pitched roof is at RL73.6. 4The site was formerly a quarry, and the eastern, northern and southern boundaries of the site are quarried sandstone rockface and retaining walls. There are three trees on the site: a Eucalyptus robusta (Tallowood) and Phoenix canariensis ( Phoenix palm) located at the Bourke Street level, which are proposed to be retained, and a Ficus rubiginosa (Port Jackson fig) growing on the rock face at the southern quarry face close to the eastern corner of the site, which is proposed to be removed. The site is adjoined on the northern and southern boundaries by residential dwelling houses, which are built at Bourke Street ground levels. The eastern frontage faces Bourke Street with approximately 5m of lawn area, and the western frontage faces the dead end of Arnold Street. Existing buildings on Arnold Street include single dwellings, some with frontage to Cuthbert Street, and three to four storey residential flat buildings. 5The site is located within the Arnold Street Landscape Conservation Area under the Waverley Local Environmental Plan 1996 (the LEP). A stone retaining wall on the split level carriageway of the extension of Arnold Street to the east of Bourke Street is listed in Schedule 5-Heritage Items as a Landscape Item L35 under the LEP. The site is within the area of the draft Queens Park Heritage Conservation Area. 6The site is affected by an easement for electricity purposes of 4.5m on the northern boundary. The applicant proposes to place the existing overhead cables underground.