Dive v Hunters Hill Council [2012] NSWLEC 1045

Land and Environment Court New South Wales

Medium Neutral Citation: Dive v Hunters Hill Council [2012] NSWLEC 1045 Hearing dates: 21 February 2012 Decision date: 29 February 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. Development Application 2010/1070 for alterations and additions to an existing dwelling house at 7 Elgin Street, Woolwich is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - view loss - streetscape/character Legislation Cited: Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan No 1 Land and Environment Court Act 1979 Cases Cited: Tenacity Consulting v Waringah [2004] NSWLEC 140 Category: Principal judgment Parties: Steven Dive and Melanie Dive (Applicants)

Hunters Hill Council (Respondent) Representation: Mr G McKee, solicitor (Applicants)

Mr J Cole, solicitor (Respondent) McKees Legal Solutions (Applicants)

HWL Ebsworth Lawyers (Respondent) File Number(s): 11155 of 2011

Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of Development Application 2010/1070 by Hunters Hill Council for alterations and additions to an existing dwelling house, including a first floor addition and deck at 7 Elgin Street, Woolwich (the site). 2The appeal was subject to mandatory conciliation and arbitration on 20 February 2012 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 3The contentions raised by the council can be summarised as: * inadequate view sharing with the adjoining property at 5 Elgin Street, * loss of privacy for 5 Elgin Street, and * unacceptable roof form, in relation to the streetscape, compatibility with character and scale of surrounding development. 4Elgin Street runs in an east-west direction and with 5 and 7 Elgin Street located on the southern side of the street, both dwellings have a northerly orientation to Elgin Street. The existing dwelling on the site is an older style single storey with an attached garage. The adjoining dwelling at 5 Elgin Street is a newer two-storey dwelling. At the centre of the contentions is the not unreasonable desire of both properties to maximise views in an easterly direction where panoramic views are available of Chatswood, North Sydney, the Sydney Harbour Bridge, the Sydney CBD skyline and parts of the land/Sydney Harbour interface. At present, the dwelling at 5 Elgin Street has largely unencumbered views to the east over the existing single storey dwelling on the site from three different locations, being: * a deck area off the living area on the first floor located within the Elgin Street setback (the deck view), * double sliding glass doors and juliete balcony off the living area on the first floor (the living area view), and * a recessed balcony into the roof form with internal stair access from the living area (the balcony view). 5Observations of the existing views were made from each location on the site inspection.