Brendan Howell v City of Canada Bay Council [2005] NSWLEC 335

Land and Environment Court of New South Wales

CITATION : Brendan Howell v City of Canada Bay Council [2005] NSWLEC 335

APPLICANT: Brendan Howell PARTIES : RESPONDENT: City Of Canada Bay Council

FILE NUMBER(S) : 10311 of 2005

CORAM: Watts C at 1

Appeal - Subdivision :- Modification application of approved attached dual occupancy KEY ISSUES: Whether the same development Whether appropriate to delete condition and subdivide under Torrens title

LEGISLATION CITED: Drummoyne Local Environmental Plan 1986, (DLEP) - Drummoyne Comprehensive Development Control Plan 1999 - Environmental Planning and Assessment Act 1979 s 96 79C

CASES CITED: Stockland Developments Pty Limited v Manly Council [2004] NSWLEC 472 (3 August 2004)

DATES OF HEARING: 20/06/2005

DATE OF JUDGMENT: 06/24/2005

APPLICANT: Ms H Irish, barrister instructed by Mr J A Strati, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Avendra Singh Strati & Kam

RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

24 June 2005

10311 of 2005 - Brendan Howell v City of Canada Bay Council

JUDGMENT

1 This is an appeal under s 96 of the Environmental Planning and Assessment Act 1979, against the decision of the City Of Canada Bay Council (the council) to refuse a modification application of Development Consent No 486/04, for a two-storey attached dual occupancy dwelling house, to delete consent Condition 3 which prohibits subdivision of the land at Lot 9, DP 7156, being No 400 Lyons Road, Russell Lea. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the modification application must fail under s 96(2) of the Environmental Planning and Assessment Act 1979 as it would not be substantially the same development as was originally consented to. The land 4 The land is situated on the northern side of Lyons Road. The frontage of the land is 15.24m the depth is 45.72m and the area is 696m2. Erected on the land is a single two-storey dwelling house. 5 Nearby are other residential buildings set on regularly shaped allotments. Although the area is predominantly residential there are some commercial uses and multi-unit housing uses nearby. Relevant planning controls Drummoyne Local Environmental Plan 1986, (DLEP) 6 Under the provisions of the DLEP, the land is zoned 2(a) Residential and subdivision, as an innominate use, is permissible with consent. There are no applicable standards applying to the proposed subdivision under the DLEP. These are found in the development control plan. Drummoyne Comprehensive Development Control Plan 1999, (CDCP) 7 The council adopted the CDCP on 21 September 1999 effective from 13 October 1999 and last amended 13 July 2004 effective 20 August 2004, [Note: Exhibit 6]. Under the subdivision provisions of the CDCP a minimum allotment size of 450m2 and a minimum street frontage of 14m applies. 8 The objectives of the CDCP are to: [Note: Exhibit 6 p 6] · build upon the Drummoyne Local Environmental Plan 1986 by providing detailed objectives, performance criteria and minimum standards for residential commercial and industrial development; · foster ecologically sustainable development; · ensure development responds to the qualities of the subject site; · ensure development responds to the character of the surrounding neighbourhoods; · minimise negative impacts of development on the amenity of adjoining properties; · encourage innovative housing, commercial and industrial design; · maintain and enhance the natural, built and cultural significance of heritage items; and · provide a balance between flexibility and certainty in the assessment process; · ensure future developments will provide for a community that considers the needs of all people who live work and visit the Drummoyne area, including those people with disabilities.