Newman v Woollahra Council [2013] NSWLEC 1258

Land and Environment Court New South Wales

Medium Neutral Citation: Newman v Woollahra Council [2013] NSWLEC 1258 Hearing dates: 5 February 2013 Decision date: 06 February 2013 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Consent Orders Legislation Cited: Woollahra Local Environmental Plan 1995; Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Woollahra Residential Development Control Plan 2003 Category: Principal judgment Parties: Georgina Newman (Applicant)

Woollahra Council (Respondent) Representation: Ms S Hill Susan Hill & Associates Lawyers (Applicant)

Mr P Rigg Norton Rose Australia (Respondent) File Number(s): 11113 of 2012

Judgment 1Ms Newman obtained development consent from Woollahra Council, under DA 446/2012/1, for alteration and additions to her dwelling at No. 81 Ocean Avenue, Double Bay. Subsequent to the grant of consent, Ms Newman sought to modify aspects of the approved development and the Council refused that application. Ms Newman is appealing that decision. 2As a result of joint conferencing by the planning experts, Ms Newman had amended plans prepared that addressed the contentions raised by the Council. The issues between the parties have now been resolved, and they are seeking consent orders from the Court.

Background 3The approved development involves the following works: * Enclosure of an internal courtyard on the northern side of the ground floor. * Addition to the rear of the ground floor comprising an enlarged family room and a new deck. * Removal and relocation of three palm trees along the northern boundary of the rear yard facilitate the extension to the rear. * Addition to the rear of the first floor comprising a new bedroom, WIR and ensuite and rear balcony. 4The consent issued was subject to the following modifying condition: C.1 Modification of details of the development (s80A(1)(g) of the Act). The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments. a) the deck at the rear of the ground floor is to be limited to a depth of 2 m, as measured from the rear elevation. b) the rear setback (and roof) of the first floor is to be increased by 2.5 m. c) the privacy screening to the balcony at the rear of the first floor is limited to a maximum height of 1.8 m. d) the three Kentia palms in the rear yard to be transplanted elsewhere within the rear yard (referred to Condition E7) e) a minimum of 18 square metres of deep soil landscaping is to be provided within the site. This can be achieved by the provision of a semi porous area within the rear courtyard/car space although the Kentia palms are to be located within the deep soil landscaped area. 5Ms Newman sought the deletion of condition C.1 (b), and the application was refused by the Council on the grounds of excessive floor space and associated impact. 6The contentions in the case reflect the grounds of refusal and are: (1)The proposal will result in an unacceptable level of overshadowing to the two first floor, north facing bedroom windows (and the bedroom itself) at 79 Ocean Ave, which does not comply with clause C 5.2.14 of the council's development control plan (2)The scale of the two storey northern side boundary wall and its location, with a nil setback to the common boundary with 83 Ocean Ave, is contrary to one of the purposes of the side setback control, which is to avoid an unreasonable sense of enclosure.