Lambros v Randwick City Council [2014] NSWLEC 1190

Land and Environment Court New South Wales

Medium Neutral Citation: Lambros v Randwick City Council [2014] NSWLEC 1190 Hearing dates: 5-6 August 2014 Decision date: 15 September 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Modification Application No. DA/72/2013/1, for the removal of an approved set of stairs and revisions to the garage, streetfront and terrace over, is approved, subject to the consolidated conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1, 8, A and H, are returned. Catchwords: MODIFICATION APPLICATION: impact on heritage item; impact on streetscape. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mr Mike Lambros (Applicant) Randwick City Council (Respondent) Representation: Mr I Hemmings SC (Applicant) Mr A Seton Solicitor (Respondent) Gionis Legal & Advisory (Applicant) Marsdens Law Group (Respondent) File Number(s): 10394 of 2014

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the refusal to modify a development consent (DA/72/2013) granted by the respondent Council on 17 September 2013 (the consent). The consent relates to land at 10 Victory Street, Clovelly (the site) and approves the demolition of the existing structures and the construction of a new dwelling and garage. The grant of consent is conditional and it requires the amendment of the approved plans, which are specified in conditions 2, 3 and 4 of the consent. 2The proposed modification of the consent, DA/72/2013/1 (the proposal) includes the removal of a set of approved stairs between the footpath and Victory Street; an increase in the size of windows in the facade of the garage forming the western edge of the entry courtyard; relocation of the front entry gate; and changes to the position of the fence around the terrace over the garage. 3The disputed conditions of consent provide: 2(b). The vertical slotted windows on the eastern wall of the garage behind the planter box within the entry courtyard/bin store must have a height of not more than 1500mm, as measured from the finished floor level of the courtyard. 3. The proposed pedestrian entry gate to the forecourt/bin storage area must be relocated from the front of the retaining wall to the bottom of the public stairs, in order to provide a greater length of the reconstructed sandstone wall to the street. Amended drawings are to be submitted to and approved by Council's Director City Planning, in accordance with Section 80A(2) of the Environmental Planning and Assessment Act 1979 prior to the construction certificate being issued for the development. 4. The proposed "lower terrace" is to be replaced by an unfenced, non-accessible area with mass shrubbery planting, in order to improve consistency with the landscaped area treatment of other recently completed developments in Victory Street. The eastern retaining wall to the upper terrace (denoted as "front terrace" on the drawings) is to be extended to the south in accordance with the markings in red on the approved drawings, in order to enclose the "lower terrace". The topmost point of the extended retaining wall is to be no less than RL13.90. A maintenance staircase of not more than 1m in width may be constructed to provide maintenance access from the "front terrace" to the "lower terrace". Amended drawings are to be submitted to and approved by Council's Director City Planning, in accordance with Section 80A(2) of the Environmental Planning and Assessment Act 1979 prior to a construction certificate being issued for the development. 6. The existing sandstone blocks are to be reused for the reconstructed sandstone retaining wall. The reconstructed sections of the existing sandstone retaining wall are to match the original wall as closely as possible in terms of size, texture, bond pattern and alignment of blocks, mortar joint colour, and detail of capping. 7. Demolition of the existing sandstone retaining wall is to be carefully carried out to minimise any damage to the original sandstone blocks and to facilitate their reuse. Note: The existing sandstone blocks can be placed on pallets and transported to Council's Depot for temporary storage prior to reconstruction works if required. Please contact Council for further information. 4The appeal was subject to mandatory conciliation on 5 August 2014, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.