Clegg v Waverley Council [2012] NSWLEC 1103

Land and Environment Court New South Wales

Medium Neutral Citation: Clegg v Waverley Council [2012] NSWLEC 1103 Hearing dates: 19 and 20 April 2012 Decision date: 27 April 2012 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The appeal is upheld in part. (2)The application under s 96(2) of the Environmental Planning and Assessment Act to modify development consent (DA 721/2010), is approved subject to the conditions in Annexure A. (3)The exhibits, except exhibits 2, 7, A, H, O and P may be returned. Catchwords: DEVELOPMENT CONSENT - modify conditions. Impact on heritage significance. Compliance with rear building line and impact of visual bulk and overshadowing. Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Category: Principal judgment Parties: Mr Edward Clegg (Applicant)

Waverley Council (Respondent) Representation: Mr M Baird, barrister (Applicant)

Mr S Patterson, solicitor (Respondent) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10023 of 2012

Judgment 1This is an appeal against the deemed refusal by Waverley Council (council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify conditions of a development consent for alterations and a first floor addition to an existing dwelling with a new garage and swimming pool at 249 Birrell Street, Bronte (site). 2The development application was approved on 6 August 2011. It included conditions of consent which required design modifications to the proposal. The s 96 application originally sought to delete or modify conditions 2(a) - (g), 7(d), 20, 23(b), (c), (d), (g), 49, 58 and 60. The s 96 application also seeks to amend the approved plans in Condition 1. The applicant has now agreed to retain some conditions and council has agreed to some of the amendments sought by the applicant. The principal conditions that remain in dispute are: 1(a) The new slate roofing is not approved and the existing terracotta Marseilles tile roof cladding is to be retained to the existing residence and additions to main roof, that is the main pyramidal element, front gable and verandah roofs. Replacement of damaged tiles or re-roofing is acceptable subject to use of matching unglazed terracotta Marseilles tiles. ... (c) The whole garage be relocated so it is setback at least 700 mm from the western boundary. ... (e) The brickwork of the front façade is restored in accordance with advice from the appointed heritage architect to form a consistent while with the roof tiles and paving. ... (g) Bedroom 2 on the first floor at the rear is to be pulled in to be in line with bedroom 1 so there is no first floor above the living area. 3Other conditions in dispute are resolved by the determination of the above conditions and the submission of amended architectural and landscape plans.