Moit v Hornsby Shire Council [2005] NSWLEC 639

Land and Environment Court of New South Wales

CITATION : Moit v Hornsby Shire Council [2005] NSWLEC 639

APPLICANT George Moit

PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 11302 of 2003 and 11454 of of 2004

CORAM: Bly C

Appeal :- subdivision - commercial development - SEPP 5 development - parking and sewage storage tank - landscaping - noise - bulk and scale. KEY ISSUES:

State Environmental Planning Policy No. 5 LEGISLATION CITED: State Environmental Planning Policy No.1

CASES CITED: Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252

DATES OF HEARING: 26/07/2005 - 27/07/05 and 2/11/2005 EX TEMPORE JUDGMENT DATE : 11/02/2005

APPLICANT Mr I. Woodward, solicitor of Storey and Gough

LEGAL REPRESENTATIVES:

RESPONDENT Mr G. McKee, solicitor of McKees Legal Solutions

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

2 November 2005

11302 of 2003 and George Moit v Hornsby Shire Council 11454 of 2004 This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 In relation to these matters preliminary findings were published shortly after the hearing on 26 and 27 July 2005. These findings are attached as Annexure B hereto. 2 Those findings indicate that the commercial development as proposed would be satisfactory and worthy of approval subject to matters involving the relocation of the sewage storage tanks, a report in relation to odour, landscaping and some other associated matters. These matters have now been resolved to my satisfaction and I therefore conclude that Appeal 11454 of 2004 should be upheld and the development application for subdivision and commercial development of 899-905 Old Northern Road, Dural, is determined by the granting of conditional development consent. There will be no order as to costs. 3 In relation to the application under State Environmental Planning Policy No 5 ("SEPP 5") the findings effectively require a number of changes to the proposal. Those changes have now been effected and I am now satisfied that conditional development consent can be granted. In particular, I note that building 3 has been amended to reduce its height in the manner suggested in the findings. 4 As indicated in the findings, the overall density of the development is well within reason and two alternatives for the relocation of the dwelling deleted from building 1 were suggested. The solution involving the provision of an additional dwelling in the roof space of building 1 has now been taken up. The findings require that if the alternative involving building 1 is to be taken up it would be subject to the bulk and scale of the building remaining largely unchanged. Also any resulting non-compliance with development standards in SEPP 5 may require an objection under State Environment Planning Policy No 1, Development Standards ("SEPP 1"). An objection under SEPP 1 has now been provided in relation to the height and storeys development standards in SEPP 5. 5 I have now considered the bulk and scale of the amended building and am satisfied that the change resulting from the additional dwelling will be entirely satisfactory especially as I expect that the appearance of the additional dwelling within this building will make little difference to the overall presentation. Similarly, I would uphold the SEPP 1 objection for the reasons contained therein also being satisfied that in the circumstances of this case it would be unreasonable and unnecessary that there be strict compliance with the development standards. 6 I therefore conclude that Appeal No. 11302 of 2003 and 11454 of 2004 should be upheld and development application No 199/2003 for three residential buildings with basement car parking under SEPP 5 at 897 Old Northern Road, Dural, is determined by the granting of conditional development consent. There will be no order as to costs.