BATSHON v HUNTERS HILL COUNCIL [1997] NSWCA 42

BATSHON v HUNTERS HILL COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 18 February 1997, 18 February 1997

[1997] NSWCA 42

CLASS I appeal — no true question of law — appeal dismissed

Cole JA This is an appeal by Mr Bassam Batshon from the decision of Bannon J in the Land & Environment Court dismissing a Class 1 appeal!. In consequence of s57(1) Land & Environment Court Act 1979 an appeal may be brought to this Court only on a question of law.

FACTS

The facts are in narrow compass. Mr Batshon wished to develop No 9 Junction Street, Gladesville by altering an existing dwelling and constructing a separate self-contained dwelling in the backyard of the property, thus creating a dual occupancy.

Such a development was permissible with consent under the terms of Local Environment Plan No 1. State Environmental Plan No 25 provided that the minimum allotment size for subdivision for dual occupancy comprising detached houses was 600m2. The subject land has an area of 685.6m2. Thus when the development application was lodged on 2 March 1995 the development was permissible, and remained permissible on 8 March when amended plans were lodged. However on 17 March 1995 there was gazetted the Hunters Hill Local Environment Plan No 22. By cl17A(1)(b) it was provided that a second detached dwelling house could not be erected on land having an area of less than 900m2. CI7 of LEP No 22 however, saved this application as it had not been "finally determined". On 30 March 1995 Hunters Hill Council refused the development application. After delivering a further amended plan, the appellant lodged on 18 May 1995 a Class | application appealing to the Land & Environment Court against the rejection.

In September 1995 the appellant lodged further plans. On 3 October 1995 the Council determined that the appeal to the court should be disposed of by a consent order embodying certain conditions. However when the matter was listed three residents objected to the development. In consequence the appeal proceeded before Bannon J on 8 and 20 December 1995. In a reserved decision delivered 21 December 1995, Bannon J dismissed the appeal.