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[2012] NSWLEC 1176
appellant. Appeal upheld; development consent granted to DA-130/2011 for demolition and construction of a new dwelling, single garage, detached garage with cabana, swimming pool and landscaping at 40 Gardyne...
The Land and Environment Court allowed the applicants' appeal and granted development consent for a new dwelling at 40 Gardyne Street, Bronte, but required deletion of the proposed third level because it would completely block an existing public panoramic ocean view from the lower Gardyne Street stairs and create unacceptable bulk in the streetscape. The Court also required modifications to the detached garage/cabana on Pacific Street to protect neighbours' solar access and privacy; other elements including the Gardyne Street garage were approved subject to conditions. The decision applied the Waverley DCP 2010 objectives and s 79C EPA Act assessment criteria (see [18]–[30]).
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1,760 words · generated 16/07/2026
The applicants, Andrew and Chloe Podgornik, sought development consent for demolition of existing structures and construction of a new multi-level dwelling, a single garage, a detached single garage with a cabana above, a swimming pool and landscaping at 40 Gardyne Street, Bronte (DA-130/2011) (see [1]). The site is a steep, corner block in the Bronte Terraces Precinct under the Waverley Development Control Plan 2010 (DCP), with panoramic ocean and district views available from public stairs and walkways on Gardyne Street (see [2], [19]).
No linked legislation citations have been extracted yet.
Waverley Council and neighbouring residents objected principally on the ground that the proposed third level of the new dwelling would completely extinguish public panoramic ocean views from the lower landing and lowest flight of the Gardyne Street stairs, and would create excessive bulk and massing in the streetscape (see [3], [18]–[20]). Other objections included private view loss to the adjoining property at 42 Gardyne Street, loss of amenity and solar access for units at 40 Pacific Street arising from the proposed detached cabana/garage, and pedestrian safety concerns about a proposed garage crossover on Gardyne Street (see [12], [13], [15], [25]).
The appeal was heard in the Land and Environment Court. The matter commenced with an on-site conciliation conference under s 34AA LEC Act; the parties could not agree and the matter proceeded to a hearing and site inspection with evidence from council and applicant town planners and oral evidence from objectors (see [7], [12]–[16]). Commissioner Dixon decided the appeal on 25 June 2012. The Court upheld the appeal and granted development consent, but required the deletion of the third level (deferred commencement condition 2) and modifications to the Pacifc Street cabana/garage (deferred commencement conditions 6 and 7). Consent was otherwise granted subject to the draft conditions in exhibit 5 (see [29]–[30]).
Primary legal framework and evaluative task
Key factual determinations
Balancing private view and amenity impacts
Garage siting and road safety
Use of conditions
Before: The DCP controls already articulated that public and private panoramic views were to be minimised in impact by new development. The Court's role was to apply those controls to the factual circumstances.
After: The decision reiterates and applies the DCP's prioritisation of public panoramic view protection in the Bronte Terraces Precinct to a concrete design question. It confirms that where a proposed element of development entirely extinguishes an identified public panoramic view visible from an established public vantage, the Court can require deletion of that element to secure consistency with precinct objectives. It also illustrates the Court's readiness to rely upon deferred commencement conditions to ensure neighbour-protective design changes for amenity reasons.
The decision does not create a new statutory rule, but it reinforces the practical operation of DCP view-based objectives in the exercise of s 79C assessment and the use of conditions to resolve conflicts between neighbourhood amenity and site-responsive design.
Passage: "the third level of the development as proposed completely extinguishes the panoramic ocean views which exist from the top of the landing of the lowest Gardyne Street stairs and the lowest stair" ([18]).
Passage: "concentration of building height and massing along Gardyne Street creates a 'fortress like walling effect' ... and obstruct existing public views" ([3]).
Passage: "The current design offers no view sharing between public and private views at this level. Rather it removes entirely the existing public panoramic ocean views from the lower stairs and replaces that view with a mass of building." ([19]).
Passage: "There was no traffic evidence to support such a concern." ([25]).
Passage: "I am of the opinion that the third level as currently designed should be deleted ... the garage/cabana on Pacific Street should be modified ..." ([29]).
This judgment is directly engaged when:
It is less directly engaged where the view impact is marginal, where the public vantage is not specifically identified in planning controls, or where older neighbouring developments already block public views but the current proposal does not make that existing obstruction materially worse.
The present deep dive confines itself to this judgment's text. The decision itself does not cite subsequent cases. Within the judgment, the Court emphasised proper application of the DCP objectives and the evidence required to show view loss and amenity impacts. Practitioners should treat this judgment as an example of the Court's factual evaluation of view loss under a local DCP and its willingness to use deferred commencement conditions to achieve acceptable outcomes. To understand how later courts have treated Podgornik v Waverley Council, one must consult subsequent reported decisions and databases; that material is beyond this source judgment and should be checked directly.
Practitioners and applicants should therefore approach similar development proposals with detailed photographic and vantage-specific evidence of existing public views, consider early engagement with Council on design changes that maintain public view corridors, and be prepared to present traffic and arboricultural evidence where safety and tree protection objections are raised.
Mr M Staunton (Respondent) Solicitors Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent) File Number(s): 10060 of 2012
Judgment 1The applicants, Andrew and Chloe Podgornik seek approval to demolish their family home and secondary dwelling/garage; and, construct a new dwelling, detached single garage with cabana over, swimming pool and landscaping at 40 Gardyne Street, Bronte as detailed in exhibit E. 2Their property is located on the corner of Gardyne and Pacific Streets, Bronte within the Bronte Terraces Precinct under the Waverley Development Control Plan 2010 (the DCP). It has a steep slope and is divided midway by a significant rock ledge. On the highest part of the site - at the Gardyne Street frontage - there is opportunity to capture magnificent panoramic views of the Pacific Ocean and surrounding areas. Not surprisingly, the applicants have designed their main dwelling around these views and generally followed the natural topography of the site. In doing so however, Waverley Council contends that the applicants have unreasonably impacted on the private views across the site from the adjoining property at 42 Gardyne Street and the panoramic ocean views from the public stairs and walkway in Gardyne Street. 3The Council contends that the development does not satisfy the objectives of the desired future character of this Bronte residential precinct under the DCP. The Council's planner, Mr Boston, believes the "...concentration of building height and massing along Gardyne Street creates a "fortress like walling effect" which will be perceived as entirely disparate in the streetscape and which will create a sense of enclosure and obstruct existing public views available across the site from the lower landing of the adjacent public stairs, the lowest flight of stairs and from the Gardyne Street road alignment. " 4Despite criticism of the applicants' proposal, the Council supports a residential development for the site in accordance with its deferred commencement conditions in Schedule A of exhibit 5. The conditions require the deletion of the entire third level and associated structure; the deletion of the garage and vehicle crossing at Gardyne Street; reduction of the northern and eastern elements of the proposal; and design changes to reduce the eastern level one terrace; setback of the western frontage from Gardyne Street and changes to the proposed fence and entry gate area. With respect to the ancillary dwelling/garage (cabana) on Pacific Road, the Council suggests an overall height reduction of 500 mm, a shortening of the building in length at the rear and a setback at the street front. 5However, the applicants do not accept the design proposed by the Council. They contend the modified design in exhibit E (prepared after the conciliation conference) satisfactorily addresses the Council's planning controls and the concerns raised by the council and the objectors. 6I must decide on the evidence whether the development as proposed or in a modified form is acceptable on this site after a consideration of the relevant matters in s 79C of the Act. 7At the direction of the Registrar this appeal was dealt with under s 34AA of the LEC Act. Therefore, it commenced onsite with a conciliation conference. As the parties were unable to resolve the matter by agreement I terminated the conference and proceeded to dispose of the matter forthwith by a hearing back at the Court. It was agreed that the evidence taken at the conciliation conference from the objectors could be received as evidence in the hearing. The Court was assisted at the hearing by town planning evidence from Mr Darroch for the applicants and Mr Boston for the Council.
The Site 8The Council's statement of facts and contentions filed on 5 March 2012 describes the site as being made up of two allotments, known as 40 Gardyne Street, Bronte. Lot A has an approximate area of 863 sq m and Lot B has an area of 311 sq m. It is a corner site with frontages to both Gardyne Street and Pacific Street. The northern frontage to Pacific Street measures 34.39 m, the eastern boundary with 40 Pacific Street measures 33.53 m, the southern boundary with 42 Gardyne Street measures 34.57 m and the western frontage to Gardyne Street measures 35.53 m. The total site area, including both Lots A and B, is 1.155.9 sq m. The applicants agree to the consolidation of the two lots as a condition of development consent. 9The site falls from the southwestern corner to the northeastern frontage to Pacific Street approximately 12 m. A single storey rendered dwelling with a pitched tiled roof at RL 38.2 is erected on the southwestern boundary. At the northeastern corner of the site fronting Pacific Street is a two-storey rendered masonry dwelling with a flat metal roof with car parking accommodation at the ground level and habitable space above.
The statutory controls 10The controls which apply to this site are as follows: Waverley Local Environmental Plan 1996 (LEP)
Objectors Submissions 12Apart from receiving the written submissions - including submissions in support of the application - the Court also heard oral evidence onsite from local residents and a representative of the Bronte Beach Precinct Committee. The objectors concerns include:
Issues 17By the conclusion of the hearing the issues in dispute related to public and private view loss, the streetscapes in Gardyne and Pacific Streets, the garage/driveway crossing in Gardyne Street, and the ancillary building (cabaña).
Public and Private Views/Streetscapes 18Council's statement of facts and contentions records a series of amendments to this application DA -130/2011 after its lodgment in March 2011. Despite opportunity the applicants have elected not to remove or significantly amend the third level of this development, which is of central concern to the council and the local residents. Based on the evidence - which was confirmed at the view - the third level of the development as proposed completely extinguishes the panoramic ocean views which exist from the top of the landing of the lowest Gardyne Street stairs and the lowest stair as depicted in photograph 9 of exhibit B. This element of the development is therefore inconsistent with the desired future character for the Terraces Precinct in the Bronte Residential Character Study (sections 4.2, 4.3 and 4.4), which seeks to "... minimises the impact of new development on existing public and private views and vistas, especially panoramic landscapes and ocean views". 19The local residents explained to me their daily use of the public stairs and walkways on both sides of Gardyne Street. They told me they enjoyed the panoramic ocean and district views obtained from the stairs and their desire to retain that public view. Having walked the public stairs in Gardyne Street I appreciate their evidence. The DCP identifies Gardyne Street as characterized by ocean and landscapes views from public areas. The photographs in exhibit B show the existing panoramic ocean and landscape views from the public areas in Gardyne Street. I accept Mr Boston's assessment that the existing character of the street will be undermined if the development is approved with the third level as proposed. The current design offers no view sharing between public and private views at this level. Rather it removes entirely the existing public panoramic ocean views from the lower stairs and replaces that view with a mass of building. I agree with the Council's evidence that the setback of the development at the ground level does not overcome the fact that the third level by virtue of its height and setback will result in an unacceptable visual bulk "fortress wall" impact on the streetscape. 20The retention of the existing panoramic views of the ocean at the higher stair level does not justify the loss at the lower level; particularly, when it arises from a numerical non-compliance with the height and FSR controls in the DCP. As Mr Boston and the residents told me the series of public footpaths and stairs provide important pedestrian access between the residential areas to the south and west of the site and to the Bronte Beach precinct to the northeast. It is a highly utilized public link. For the above reasons I cannot approve the third level as currently proposed. 21The fact that the adjoining development, which was approved under different planning controls, also removes public ocean views does not justify the approval of the third level as currently designed. The Council's current DCP controls seek to "minimize the impact of new development on existing public views and vistas, especially panoramic landscapes and ocean views".
Eastern Terrace 22I have considered the evidence about the impact of the level 1 eastern terrace of the main dwelling on the adjoining property at 42 Gardyne Street. In my assessment the amended design does not unreasonably impact on the amenity or views across the site from 42 Gardyne Street. The residents of 42 Gardyne Street enjoy magnificent panoramic views to the ocean from various levels of their large, multi - terraced dwelling and given the proximity of their dwelling to the common boundary and the fall of the land I do not accept it is reasonable to impose condition 8 and require the redesign as proposed by the Council in "Detail1" of exhibit 5. The property at number 42 has been orientated to take advantage of the ocean views primarily but it also significantly overlooks of the applicants' site. The roof of the terrace allows the applicants some privacy from overlooking from the higher levels of the dwelling at 42 Gardyne Street. It also offers a usable open space off their kitchen/ family area. The eastern terrace area is a principal out door living area for the applicants' family. I accept Mr Darroch's assessment that the reduction in the length and angling of the eastern terrace result in acceptable amenity for the applicants and the adjoining neighbors. Importantly, the reduction in length of the terrace also increases its setback from the flats at 40 Pacific Street and addresses those neighbors' concerns about bulk and overlooking of their communal open space. 23The deletion of the third level of the development means that the Vaughan property will keep its existing side boundary district views from their kitchen window. While this was an issue of concern for the residents of 42 Gardyne however, based on the evidence the loss of this side window district view alone would not have justified the deletion of the third level. 24I accept Mr Darroch's assessment that the green living/partly open fence proposed on the boundary is acceptable in the streetscape. I also approve of the 2 m setback of the development along Gardyne Street to allow additional planting, the reconfigured porch/awning over the entry and the enlarged opening for increased planting. All these amendments improve the appearance of the development and its integration with the streetscapes in Gardyne and Pacific Streets. It is also my view that this corner block needs some privacy. The proposed height of the fence achieves that privacy on the corner and its open elements allow for public views across the site from Pacific Street.
Single Garage On Gardyne Street 25The Council contends the garage entry/crossover from Gardyne Street is unsafe and that it is in the wrong location. It suggests any garage should be on the less prominent Pacific Street frontage consistent with the performance criteria in the DCP. Despite that position the Council I accept that its initial complaint about the impact of traffic on the adjoining Hill Fig street tree is addressed by the erection of cement bollards around the base of the tree as recommended by the arborists. 26Despite council's concerns about pedestrian safety there is no traffic evidence to support such a concern. The application proposes a single garage in a cul-de-sac. The increase in traffic will be marginal and the design of the entry/ crossover will be a matter for council in its consideration of the application under the Roads Act. Based on the evidence before me I agree with Mr Darroch that the amenity created by locating the garage proximate to the main dwelling and not in Pacific Street is justified in this case.
Garage/ Cabana on Pacific Street 27I have decided the single detached garage/ cabana fronting Pacific Street should be amended in accordance with the Council's deferred commencement conditions 6 and 7 in exhibit 5. 28The residents of the flats at 40 Pacific Street do not have any water views or a district outlook. They have a small communal open space at the rear of the flats, which I was told, is there only sunny open area. Having stood in their rear yard I appreciate their evidence. They currently enjoy the landscaped area of the site and that will change with any development of the site. They cannot expect to rely on landscaping on adjoining land as a permanent outlook. However, they can expect some privacy from overlooking and an opportunity for solar access. The modifications proposed in the Council's deferred commencement conditions, based on Mr Boston's evidence, ensure existing solar access is maintained where possible and mutual privacy is maximized for both developments. Given the proximity of the flats to the existing built form a reduction in height by 500mm and reduction in length at the rear will ensure a greater amenity for the residents in units 2 and 4 and have a positive impact on the open space at the rear of the flats. The setback to the street will improve the amenity of the ground floor front unit and better integrate the development into the streetscape consistent with the existing the development. 29The performance criterion in the DCP encourages individual expression where the site is irregular in shape and has unique characteristics provided such expression does not undermine the established character of the street. The amended design before the Court has taken advantage of that opportunity for individual expression on this difficult site. However, after a consideration of the evidence, and, with the DCP as a central focus of my assessment, I am of the opinion that the third level as currently designed should be deleted from the development in accordance with deferred commencement condition 2 of exhibit 5. In making this finding, however, I note it may be possible to provide an acceptable design for a third level which allows a some panoramic ocean view to be maintained from the public stairs and lower landing in Gardyne street. My concern about the current design is that it extinguished completely the existing panoramic ocean view from the identified public areas and this is in conflict with the DCP. I am also of the opinion that and the garage/cabana on Pacific Street should be modified in accordance with the deferred commencement conditions 6 and 7 of exhibit 5 in order to protect the amenity of the residents in 40 Pacific Street. In all other respects the development as proposed in exhibit E and as modified by my judgment is acceptable after an assessment under s 79C of the Act. 30I make the following orders: (1)The appeal is upheld. (2)Development consent is granted to DA -130/2011 for the demolition of the existing dwelling and associated structure and the construction of a new dwelling and single garage, detached single garage with cabana over, swimming pool and associated works and landscaping on land at 40 Gardyne Street, Bronte as detailed in plans which are exhibit E subject to the draft conditions in exhibit 5 including deferred commencement conditions in Schedule A numbers 2, 6, 7 and 9. (3)The exhibits are returned except exhibits E and 5. Susan Dixon Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2012
Podgornik
Waverley Council
Appeal upheld; development consent granted to DA-130/2011 for demolition and construction of a new dwelling, single garage, detached garage with cabana, swimming pool and landscaping at 40 Gardyne Street, Bronte as per exhibit E, subject to the draft conditions in exhibit 5 including deferred commencement conditions in Schedule A numbers 2 (deletion of third level), 6, 7 (modifications to Pacific Street cabana) and 9; exhibits returned except E and 5 (see [30]).