Wehbe v Hunters Hill Council [2018] NSWLEC 1607

Wehbe v Hunters Hill Council [2018] NSWLEC 1607

The appeal was dismissed because the proposal failed to respond appropriately to the site's constraints and established character. The excessive building envelope and upper-level volume of Unit 1 caused unacceptable overshadowing of the backyard of 8 Woolwich Road, which was determinative notwithstanding compliance with numerical height controls. The substantial basement excavation was unjustified, prevented landscaping between the dwellings, posed a significant risk to retention of the prominent Jacaranda tree, and did not satisfy cl 6.2(3)(h) of the Hunters Hill Local Environmental Plan 2012. The loss of significant trees and the scale and arrangement of the two large detached dwellings...

Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing Held After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Leave to amend was granted; the appeal was dismissed and the development application was refused.
Legal Topics
['dual Occupancy Development' 'heritage Conservation Area Impacts' 'local Heritage Items' 'streetscape and Neighbourhood Character' 'residential Amenity' 'overshadowing' 'tree Retention' 'basement Excavation' 'landscaped Setting' 'strata Subdivision']
['planning and Environment' 'development Consent' 'heritage Conservation'] ['dual Occupancy Development' 'heritage Conservation Area Impacts' 'local Heritage Items' 'streetscape and Neighbourhood Character' 'residential Amenity' 'overshadowing' 'tree Retention' 'basement Excavation' 'landscaped Setting' 'strata Subdivision']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Hearing Held After Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether the proposed dual occupancy development was compatible with the character of the Hunters Hill Heritage Conservation Area and the established Passy Estate neighbourhood.' 'Whether the proposal conserved the heritage significance of the Hunters Hill Heritage Conservation Area and nearby local heritage items.' 'Whether the building envelope, basement, driveway and separation between dwellings provided an acceptable landscaped setting and retained significant trees.' 'Whether the proposal caused unacceptable amenity impacts on adjoining properties, particularly overshadowing of the private open space at 8 Woolwich Road.' 'Whether the proposed earthworks incorporated appropriate measures to avoid, minimise or mitigate impacts on existing trees, including the Jacaranda tree.']

Ratio Decidendi

The appeal was dismissed because the proposal failed to respond appropriately to the site's constraints and established character. The excessive building envelope and upper-level volume of Unit 1 caused unacceptable overshadowing of the backyard of 8 Woolwich Road, which was determinative notwithstanding compliance with numerical height controls. The substantial basement excavation was unjustified, prevented landscaping between the dwellings, posed a significant risk to retention of the prominent Jacaranda tree, and did not satisfy cl 6.2(3)(h) of the Hunters Hill Local Environmental Plan 2012. The loss of significant trees and the scale and arrangement of the two large detached dwellings...

Court Disposition

Leave to amend was granted; the appeal was dismissed and the development application was refused.

Orders

  • ['The applicant is granted leave to amend the application for development consent by relying on the architectural plans revision D tendered as Exhibit E, as amended by those architectural plans revision E tendered as Exhibit J.' 'The appeal is dismissed.' 'Development Application No. 2018-1059 for a dual occupancy...