Podgornik v Waverley Council [2012] NSWLEC 1176

Land and Environment Court New South Wales

Medium Neutral Citation: Podgornik v Waverley Council [2012] NSWLEC 1176 Hearing dates: 23, 24 April and 18 June 2012 Decision date: 25 June 2012 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)Development consent is granted to DA -130/2011 for the demolition of the existing dwelling and associated structure and the construction of a new dwelling and single garage, detached single garage with cabana over, swimming pool and associated works and landscaping on land at 40 Gardyne Street, Bronte as detailed in the plans which are exhibit E subject to the draft conditions in exhibit 5 including deferred commencement conditions in Schedule A numbers 2, 6, 7 and 9. (3)The exhibits are returned except exhibits E and 5. Catchwords: DEVELOPMENT APPEAL - Public view loss, bulk and scale, streetscape Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Development Control Plan 2010 Waverley Local Environmental Plan 1996 Category: Principal judgment Parties: Andrew Podgornik (Applicant)

Waverley Council (Respondent) Representation: Counsel Ms S Duggan SC (Applicant)

Mr M Staunton (Respondent) Solicitors Gadens Lawyers (Applicant)

Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10060 of 2012

Judgment 1The applicants, Andrew and Chloe Podgornik seek approval to demolish their family home and secondary dwelling/garage; and, construct a new dwelling, detached single garage with cabana over, swimming pool and landscaping at 40 Gardyne Street, Bronte as detailed in exhibit E. 2Their property is located on the corner of Gardyne and Pacific Streets, Bronte within the Bronte Terraces Precinct under the Waverley Development Control Plan 2010 (the DCP). It has a steep slope and is divided midway by a significant rock ledge. On the highest part of the site - at the Gardyne Street frontage - there is opportunity to capture magnificent panoramic views of the Pacific Ocean and surrounding areas. Not surprisingly, the applicants have designed their main dwelling around these views and generally followed the natural topography of the site. In doing so however, Waverley Council contends that the applicants have unreasonably impacted on the private views across the site from the adjoining property at 42 Gardyne Street and the panoramic ocean views from the public stairs and walkway in Gardyne Street. 3The Council contends that the development does not satisfy the objectives of the desired future character of this Bronte residential precinct under the DCP. The Council's planner, Mr Boston, believes the "...concentration of building height and massing along Gardyne Street creates a "fortress like walling effect" which will be perceived as entirely disparate in the streetscape and which will create a sense of enclosure and obstruct existing public views available across the site from the lower landing of the adjacent public stairs, the lowest flight of stairs and from the Gardyne Street road alignment. " 4Despite criticism of the applicants' proposal, the Council supports a residential development for the site in accordance with its deferred commencement conditions in Schedule A of exhibit 5. The conditions require the deletion of the entire third level and associated structure; the deletion of the garage and vehicle crossing at Gardyne Street; reduction of the northern and eastern elements of the proposal; and design changes to reduce the eastern level one terrace; setback of the western frontage from Gardyne Street and changes to the proposed fence and entry gate area. With respect to the ancillary dwelling/garage (cabana) on Pacific Road, the Council suggests an overall height reduction of 500 mm, a shortening of the building in length at the rear and a setback at the street front. 5However, the applicants do not accept the design proposed by the Council. They contend the modified design in exhibit E (prepared after the conciliation conference) satisfactorily addresses the Council's planning controls and the concerns raised by the council and the objectors. 6I must decide on the evidence whether the development as proposed or in a modified form is acceptable on this site after a consideration of the relevant matters in s 79C of the Act. 7At the direction of the Registrar this appeal was dealt with under s 34AA of the LEC Act. Therefore, it commenced onsite with a conciliation conference. As the parties were unable to resolve the matter by agreement I terminated the conference and proceeded to dispose of the matter forthwith by a hearing back at the Court. It was agreed that the evidence taken at the conciliation conference from the objectors could be received as evidence in the hearing. The Court was assisted at the hearing by town planning evidence from Mr Darroch for the applicants and Mr Boston for the Council.