McManus & Klinger v Waverley Council [2012] NSWLEC 1085

Land and Environment Court New South Wales

Medium Neutral Citation: McManus & Klinger v Waverley Council [2012] NSWLEC 1085 Hearing dates: 28 March 2012 Decision date: 10 April 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. 342/10 for alterations and additions to an existing flat building is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, with the exception of exhibits 2, 4 and A. Catchwords: DEVELOPMENT APPLICATION: Consent orders; alterations and additions to existing flat building; resident objectors. Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases Cited: Shields v Waverley Council [2011] NSWLEC 1115 Category: Principal judgment Parties: Amanda McManus & Steven Klinger (Applicant)

Waverley Council (Respondent) Representation: Mr Klinger (Solicitor) (Applicant)

Mr Patterson (Solicitor) (Respondent) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 11010 of 2011

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No 342/2010 (the application) for alterations and additions to an existing flat building at 4 Glen Street, Bondi (the site). 2Waverley Council (the Council) refused development application D/2010/85 for a two-storey addition to the existing flat building on 23 November 2010. Amendments were then made to the proposal, including deleting one of the additional floors and the amended proposal was submitted to Council for a s 82A Environmental Planning and Assessment Act 1979 (EPA Act) review of council's determination. The appeal to the Court was filed prior to the determination of the s 82A review. 3The appeal was the subject of a s 34 of the Land and Environment Court Act 1979 (LEC Act) conciliation conference on 31 January 2012. The s 82A amended proposal (the proposal) was further modified during the s 34 conciliation conference. The conciliation conference was terminated pursuant to s 34(4)(a) on 14 March 2012. Following the termination of the s 34 conciliation conference, the parties agreed to enter into consent orders. The principle changes made to the proposal following the conciliation conference were: * The roof design was modified to reduce the overall height of the building by reducing the pitch of the skillion roofs; * Privacy screens were added to the southern end of the proposed balcony on the top floor at the rear of the block and a planter box was added along the length of the balcony; and * A fire egress was added and changes made to the basement car parking layout to allow for a direct path to the fire escape. 4In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i)the content of the proposed orders (including the proposed conditions of consent); (ii)the date of the hearing by the Court to consider making the proposed consent orders; and (iii)the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In accordance with the Practice Note, three local residents provided evidence at the consent order hearing during the site inspection. The residents' concerns can be summarised as: Residents of 6 Glen Street, adjacent to the site on the southern side: * The breaches of the Waverley Development Control Plan 2007 controls result in additional amenity impacts on their property; * The proposal will overshadow their property, including their rear deck and yard; * The proposal will overlook their property, including their rear deck and rear yard; * The residents of 6 Glen Street engaged town planner Mr Tony Moody and architect Mr Stephen King, who both provided a written report detailing the impacts of the original development application proposal on 6 Glen Street (Exhibit 3). * The resident of 8 Glen Street, one block removed on the southern side: * The breaches of the Waverley Development Control Plan 2007 controls result in additional amenity impacts on their property; * The proposal will overshadow their property, including their rear deck and yard and the shadow diagram does not indicate the additional shadow on the raised rear deck; * The rear yard is already overshadowed by a tree listed on Council's significant tree register and the proposal will add to the existing overshadowing. * The residents of 9 Glen Street, opposite the site: * The proposal is bulky; * The proposal will overshadow their front bedroom window during the morning; and * The proposal will result in additional parking in Glen Street.