Porfiri, I v Ku-ring-gai Council [2007] NSWLEC 168

Land and Environment Court of New South Wales

CITATION : Porfiri, I v Ku-ring-gai Council [2007] NSWLEC 168

APPLICANT: PARTIES : Mr Ivo Porfiri RESPONDENT: Ku-ring-gai Council

FILE NUMBER(S) : 10024 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Whether 'substantially the same development'

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) Environmental Planning and Assessment Act 1979, ss 79C and 96

DATES OF HEARING: 22/02/2007

EX TEMPORE JUDGMENT DATE : 22 February 2007

APPLICANT: Mr I Porfiri, in person SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr J Robson, barrister, instructed by Ms O Hancock, solicitor SOLICITORS: Deacons

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

22 February 2007

10024 of 2007 - Ivo Porfiri v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Ku-ring-gai Council (the council) to refuse a to modify a development application to alter and add to a dwelling house at Lot 17, DP 5313 being No 4 Dudley Avenue, Roseville. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that as the modified proposal would not be substantially the same development as was originally consented to by the council that it cannot be a modification application and thus the appeal must be dismissed. The land 4 The land is situated on the northwestern side of Dudley Avenue close to the intersection of Dudley Avenue and Archbold Road, between Archbold Road and Skinner Parade. It is rectangular in plan and has a frontage to Dudley Avenue and a rear boundary of 20.115m and side boundaries of 57.91m giving an area of 1164.86m2. 5 The land falls about 3.12m from the front southwest corner at 96.32m AHD to the rear northeast corner of 93.20m AHD, at an average gradient of about 5.2%. 6 The existing building was a contributory item to the National Trust Urban Conservation Area – Roseville, however this listing was not included in any environmental planning instrument. Surrounding development consists of single-storey and two-storey dwellings. 7 Most parts of the former dwelling house have been now demolished leaving only remnants of the former front façade. Relevant planning controls Ku-ring-gai Planning Scheme Ordinance, (KPSO) 8 Under the provisions of the KPSO the land is zoned Residential 2(a) and the proposal is permissible with consent. 9 Nos 7 and 8 Dudley Avenue nearby are items of local heritage significance under Schedule 7, Part 2 of the KPSO. The proposal and its history 10 The second application to modify Development Consent No 325/04B was lodged with the respondent council on 30 November 2006. It is this application that is for consideration by the Court and before this there were other applications as indicated below. 11 On 20 May 2004, Development Application No DA 1528/03 to demolish the existing house and to erect a two-storey dwelling and pool at No 4 Dudley Avenue, Roseville was refused by the council. 12 On 2 April 2004, Development Application DA 325/04 was lodged for alterations and additions to the existing dwelling and on 20 August 2004, this application was granted development consent. This application was to partly demolish the existing dwelling house and to erect a new double-storey dwelling, carport and pool. The consent included the following conditions: · Condition 4 (under the heading 'General Conditions') 4. Demolition work affecting the facade of the dwelling shall be monitored by a suitably experienced and qualified structural engineer before, during and after completion of the works. · Condition 91 (under the heading 'conditions to be complied with prior to work commencing') 91. A report prepared by a suitably experienced and qualified structural engineer shall be submitted to Council, which indicates: · that the proposed works can be carried out in such a manner so as to ensure the facade of the building can be maintained intact; · the methods proposed to ensure the facade of the building is maintained; · the methods of construction recommended so that any damage to the fabric of the building is minimised; and · a statement of the structural adequacy of the existing building.