Cheng v Waverley Council [2016] NSWLEC 1289

Land and Environment Court New South Wales

Medium Neutral Citation: Cheng v Waverley Council [2016] NSWLEC 1289 Hearing dates: 20 June 2016 Date of orders: 12 July 2016 Decision date: 30 June 2016 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [41] Catchwords: DEVELOPMENT MODIFICATION: Demolition of existing dwelling and construction of new dwelling – Height – Setbacks – Amenity impacts – Impacts on views Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: Cheng Cheng (Applicant) Waverley Council (Respondent) Representation: Counsel: Ms N Hammond (Applicant)

Solicitors: Mr H Lu, Luminous Legal (Applicant) Ms E Whitney, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2016/154117 (Formerly 10210 of 2016) Publication restriction: No

Judgment 1. On 25 November 2015 the Waverley Development Assessment Panel, as delegate of the respondent Council, granted development consent for the demolition of an existing dwelling and construction of a new part two, part three storey dwelling and swimming pool at 35 Portland Street Dover Heights (the site). 2. Development Consent No 252/2015 was subject to conditions, including Condition A.2, which required the following design changes: The proposal shall be amended as follows: (a) To comply with the objectives of the Waverley DCP 2012, and to preserve city views of the adjoining premises to the east, the overall height of the development is to be lowered to Reduced Level RL71.3 (AHD). (b) To comply with the objectives of the Waverley DCP 2012, both (north and south) side setbacks of the rear three storey section of the development (approximately 11.18m in length) are to provide a setback of 1200mm. (c) To preserve the amenity of the adjoining sites, 1.8m high obscure glass privacy screens are to be installed on both side elevations of the rear western decks at all floor levels. (d) The pool copping level is not to exceed Reduced Level RL61.4 (AHD). (e) The height of the front boundary fence is to match the level of the front boundary fence of 33 Portland Street and the proposed covered walkway (3m in height and 6.9m in length) is to be deleted. (f) To preserve the acoustic amenity of the adjoining premises to the north at 33 Portland Street, the proposed plant room housing the air conditioning condenser units and the hot water units is to be relocated so as not to be positioned directly opposite the south facing windows of 33 Portland Street. The amendments are to be approved by Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. 1. On 25 January 2016 the applicant lodged an application under s 96(1A) of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent DA No 252/2015 (DA/252/2015/A): To have Conditions A.2 deleted from the DA approval and to have glass balustrades installed on the flat roof & a skylight replaced by a manhole at level 1. 1. The plans submitted with the modification application (ex B) show a roof terrace, 85sqm in area, on the western side of the dwelling, accessed by a manhole, with clear toughened glass balustrades. 2. On 9 March 2016 the applicant lodged an appeal pursuant to s 97AA of the Act against the deemed refusal of the modification application. The matter was the subject of a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (the Court Act) on 20 June 2016. Agreement was reached on some issues but not on all, and the conciliation was terminated, and in accordance with s 34AA(2)(b)(i) of the Court Act, proceeded to hearing.