Podgornik v Waverley Council [2013] NSWLEC 1058

Land and Environment Court New South Wales

Medium Neutral Citation: Podgornik v Waverley Council [2013] NSWLEC 1058 Hearing dates: 25 and 26 March 2013 Decision date: 05 April 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)The deferred development consent granted to DA -130/2011 by the Court on 25 June 2012 in proceedings no 10060 of 2012 is modified in accordance with the plans identified in the conditions in annexure A. (3)The exhibits are returned except exhibits A and 2. Catchwords: Modification of development consent - view impact from the public domain Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Waverley Development Control Plan 2012 Cases Cited: Podgornik v Waverley Council [2012] NSWLEC 1176 Pafburn v North Sydney Council [2005] NSWLEC 444 Rose Bay Marina v Woollahra Municipal Council [2013] 1046 Category: Principal judgment Parties: Mr Andrew Podgornik (Applicant)

Waverley Council (Respondent) Representation: Mr N Eastman (Applicant)

Mr M Staunton (Respondent) Gadens Lawyers (Applicant)

Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 11239 of 2012

Judgment 1The applicant has development consent from the Court for the construction of a large dwelling and separate cabana on a corner site at 40 Gardyne Street, Bronte (Podgornik v Waverley Council [2012] NSWLEC 1176). The consent was granted on 25 June 2012 and was subject to a deferred commencement condition. The condition required the deletion of the third storey because it extinguished the public views to Tamarama headland and ocean from the lower landing of the Gardyne Street stair/walkway. 2The applicant now seeks to modify the development consent to incorporate a redesigned and reduced third storey (as well as a number of non-substantive modifications). The modification application is made directly to the Court under s 96(8) of The Environmental Planning and Assessment Act 1979 (The Act). 3The applicant contends that the proposed redesign minimises the impact on the views enjoyed from the public domain because it retains the view to the land /water interface including Tamarama headland, as well as the ocean horizon. The Council does not support the modification to incorporate the proposed third storey. It contends through its town planner, Mr Nash that it severely impacts on the ocean views from the public domain. The applicant's consultant town planner Mr Darroch argues to the contrary. Their joint report is exhibit 3. 4The view loss from the public domain is the single issue in these proceedings. 5The Registrar directed that this application be dealt with under s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, the parties were unable to resolve the matter by conciliation so it proceeded to a hearing under s 34AA (2)(b)(i). In order to understand the view impact from the public domain the Court had two views of the site and locality. The first view was without height poles in place; and, the second view was after height poles had been erected to demonstrate the height of the third storey. On each occasion the Court, the parties and the experts walked along the Gardyne Street stairs/walkway via Thomas Street and through the laneway to the bottom landing of the stairs and down Pacific Street. At each view it heard from the objectors to the proposal. They are very concerned about the impact of the third level on the public views from the lowest landing of the Gardyne Street stairs/walkway.