Udler v Waverley Council [2013] NSWLEC 1173

Land and Environment Court New South Wales

Medium Neutral Citation: Udler v Waverley Council [2013] NSWLEC 1173 Hearing dates: 19 September 2013 Decision date: 20 September 2013 Jurisdiction: Class 1 Before: Brown C Decision: On filing of amended plans and conditions that reflect the findings in the judgment, the Court will make the following orders in chambers: 1. The appeal is upheld. 2. Development Application DA541/2012 for alterations and additions to an existing dwelling at 58 Queens Park Road, Queens Park is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A and B, are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling that includes a first floor addition, replacement of rear double garage and new cabana - breach of predominant rear building line - bulk, loss of sunlight Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Alex and Kim Udler (Applicant) Waverley Council (Respondent) Representation: Mr G Green, solicitor (Applicant) Mr S Patterson, solicitor (Respondent) Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10510 of 2013

Judgment 1COMMISSIONER: This is an appeal against conditions imposed by Waverley Council on the approval of Development Application DA541/2012 on 20 August 2013 for alterations and additions to an existing dwelling that includes a first floor addition, replacement of rear double garage and new cabana at the rear at 58 Queens Park Road, Queens Park (the site) 2The disputed conditions state: 1. The proposed first floor is to be reduced at the rear by 1 metre on the western side and 2 metres on the eastern side so as to be set back generally in line with the existing predominant rear building line of the two adjoining properties. 2. The rear garage and cabana structure to be reduced in size and the design altered to include a pitched roof and to reflect the design character of the existing building and general area. 3The appeal was subject to mandatory conciliation and arbitration on 19 September 2013 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 4The contention that remained in dispute centred on the rear building line of the proposed first floor addition. The council maintained that the setback was in breach of the council requirement and as such had an unsatisfactory impact on the Queens Park area, the Queens Park Heritage Conservation Area and the amenity of the adjoining properties. The height of the garage/cabana and roof form was addressed through a condition to reduce the height by 100 mm and agreement by the experts that a flat roof form was more appropriate than the pitched roof.