Heywood v Hunters Hill Council [2007] NSWLEC 124

Land and Environment Court of New South Wales

CITATION : Heywood v Hunters Hill Council [2007] NSWLEC 124

APPLICANT Peter & Marion Heywood PARTIES : RESPONDENT Hunters Hill Council

FILE NUMBER(S) : 11051 of 2006

CORAM: Brown C

KEY ISSUES: Development Application :- erection of an awning - breach of rear and side setbacks and garden area requirements

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan No 1

DATES OF HEARING: 7/03/07

EX TEMPORE JUDGMENT DATE : 7 March 2007

APPLICANT Mr A Gough, solicitor SOLICITORS Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr P Brown, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

7 March 2007

11051 of 2006 Peter & Marion Heywood v Hunters Hill Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application 06/1119 by Hunters Hill Council (the council) for the erection of an awning at 29 Mortimer Lewis Drive, Huntleys Cove (the site). Background 2 The proceedings were heard as an On Site Hearing on 7 March 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site. 3 The site has an area of 289 sq m and forms part of a planned residential estate between Victoria Road and Tarban Creek at Huntleys Cove. The site has a frontage to Mortimer Lewis Drive and a rear boundary that adjoins a passive open space area and Riverglade Reserve. The proposal 4 The proposal seeks to erect an awning at the rear of the existing dwelling. The awning is described as a vergola and is an aluminium structure that has moveable blades in the roof to control sunlight and rain. It is 4.45m long with 1.48m located under an existing balcony, 4.185m wide and 2.55m high when measured from the top of the structure. The setback from the rear boundary ranges between 1.95 m and 2.2m. Relevant planning controls 5 The site is within Zone No. 2(c)(Residential "C") under Hunters Hill Local Environmental Plan No 1 (LEP 1). The proposed use is permissible with consent within this zone. The aims, objectives, etc of the plan are found at cl 2. 6 Hunters Hill Development Control Plan No 15 - Residential Development (DCP 15) applies. The relevant provisions are Objectives (cl 3.1), Design Parameters (cl 3.2), Front, Side and Rear Setbacks (cl 7.2) and Garden Area (cl 7.3). The issues 7 The council filed a Statement of Issues containing five issues. The adequacy of the documentation (Issue 5) was not pressed by the council following the submission of further plans. The remaining issues can be grouped into following main areas: 1) whether the departure from the rear setback requirement can be supported? 2) whether the departure from the side setback requirement can be supported? 3) whether there was a departure from the garden area requirement and if so, whether the departure can be supported? Rear setback 8 The departure from the rear setback requirement was the significant issue in the proceedings. Clause 7.2.4 provides that " the distance between any part of a building and the rear boundary shall be 6 metres". The clause further states, "single storey buildings will be permitted within the 6.0 metre rear boundary setback area. Single storey buildings having a maximum wall height of 2.4 metres shall be permitted up to the boundary for a maximum length of 33% of the boundary". 9 Clause 7.2.5 provides for exemptions to the front, side and rear setback provisions. It states, in part, "council may permit buildings to be erected within the calculated boundary setback area, where it can be demonstrated that the objectives of the setback controls, particularly privacy and sunshine can be achieved without strict adherence to the standards…..However, in considering such encroachments, the applicant must demonstrate to Council that the adjoining properties will not be unduly adversely affected". 10 The relevant objectives of the setback controls are: a. To ensure that setbacks of new dwellings and alterations and extensions to existing dwellings respect the characteristic pattern of setbacks in the locality and in particular conserve the identity of the Municipality established by its townscape of pre-1930s buildings (cl 7.2.1 a).