Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137

Screnci & Anor v Willoughby City Council [2016] NSWLEC 1137

The Council’s landscaping scheme and retaining wall design (as per Powe Partnership plans) was preferred over the applicants’ scheme because it better complied with geotechnical expert evidence, planning controls, and provided improved landscaping and canopy treatment, particularly exposure of natural rock shelves and planting of Angophora. The principal boundary and retaining walls required demolition and reconstruction for durability and compliance. The secondary dwelling proposal was not granted consent due to unsatisfactory amenity, privacy, and physical access outcomes regardless of whether it was attached or separate, and did not meet zone objectives.

Parties
Applicants: Joseph Screnci and Paula Screnci; Respondent: Willoughby City Council
Jurisdiction
Australia
Judgment Date
06 April 2016
Procedural Posture
Class 1 Appeal / Final Judgment on Concurrent Appeals, Determination of Orders and Development Applications
Outcome
Order appeal upheld and modified order to issue; landscaping/building certificate/secondary dwelling appeals dismissed
Legal Topics
S 121 B Orders, Development Application Appeals, Retaining Walls, Landscaping, Foreshore Controls, Secondary Dwelling Applications, Building Certificates
Planning and Environment Administrative Law Local Government Law S 121 B Orders Development Application Appeals Retaining Walls Landscaping Foreshore Controls +2 more

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Parties

Joseph Screnci and Paula Screnci

Applicants

Willoughby City Council

Respondent

Procedural Posture

Class 1 Appeal / Final Judgment on Concurrent Appeals, Determination of Orders and Development Applications

Legal Issues

  1. 1 Whether the Council's order under s 121B Environmental Planning and Assessment Act 1979 should be modified and in what terms
  2. 2 Whether development consent should be granted for amended landscaping and retaining wall works
  3. 3 Whether development consent should be granted for use of undercroft area as a secondary dwelling

Ratio Decidendi

The Council’s landscaping scheme and retaining wall design (as per Powe Partnership plans) was preferred over the applicants’ scheme because it better complied with geotechnical expert evidence, planning controls, and provided improved landscaping and canopy treatment, particularly exposure of natural rock shelves and planting of Angophora. The principal boundary and retaining walls required demolition and reconstruction for durability and compliance. The secondary dwelling proposal was not granted consent due to unsatisfactory amenity, privacy, and physical access outcomes regardless of whether it was attached or separate, and did not meet zone objectives.

Court Disposition

Order appeal upheld and modified order to issue; landscaping/building certificate/secondary dwelling appeals dismissed

Orders

  • Council to re-draft Schedule of Works modifying the Order of 15 November 2013, requiring demolition/removal of walls, paving, stairs and reconstruction works per Powe Partnership Pty Ltd (exhibit 26) with landscaping as per Council plan.
  • Modified order to specify 12 months for compliance from date of the order.