Catania v Sydney City Council [2005] NSWLEC 611

Land and Environment Court of New South Wales

CITATION : Catania v Sydney City Council [2005] NSWLEC 611

APPLICANT Alexander and Jeffery Catania

PARTIES : RESPONDENT Sydney City Council

FILE NUMBER(S) : 10453 of 2005

CORAM: Murrell C

KEY ISSUES: Appeal :- Development application for subdivision and the erection of two dwellings - streetscape - impact on adjoining neighbour - character of the conservation area - amenity of open space areas -solar access

Environmental Planning and Assessment Act, 1979 LEGISLATION CITED: South Sydney Local Environmental Plan, 1998

DATES OF HEARING: 17/08/2005

DATE OF JUDGMENT: 11/03/2000

APPLICANT Mr A Catania, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios, solicitor Of Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

3 November 2005

10453 of 2005 Catania Alexander v Sydney City Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against the refusal by the City of Sydney Council of a development application for the property known as No. 40 Devine Street, Erskineville. 2 The application is for the demolition of the existing single storey cottage and the construction of two detached two-storey dwellings. The application submitted to the council is also for the subdivision of the land into two allotments, although the applicant advises the Court that subdivision is not pressed. 3 The subject site is on the corner of Devine and Flora Streets and is Lot 1 in DP 524065. The boundary to Devine Street is 6.91 m and to Flora Street about 20 m yielding a site area of 138.4 sq m. The site falls approximately 0.5 m from the west to the east along Devine Street, and 1 m from the south to the north along Flora Street. 4 Currently erected on the site there is a single storey weatherboard cottage with frontage to Devine Street and a single storey garage at the rear with access to Flora Street. 5 The character of the area can be generally described as being of a fine urban fabric with a relatively small subdivision size, refer to Figure 1, and a mix of one and two storey dwellings, dual occupancies and residential flat buildings. 6 Opposite the site in Flora Street there is a railway reservation/open space area that leads to an underpass. Adjoining the site at No. 38 Devine Street is an infill two storey dwelling house built boundary to boundary constructed in about the 1970s/80's and this is adjoined by a more recent part single and two storey residence at No. 38 and No. 36 Flora Street is also a more recent infill development that reads as a terrace style building with a party wall. No. 38 is an allotment of 6.9 m x 20 m, built boundary to boundary, with the large mass of the building punctuated by a light well/court yard adjacent to the boundary of the subject site. 7 To the north of the subject site there is a large two storey terrace style building and the pattern of development opposite near the railway line in Flora Street is either two storey or single cottages. 8 The area is made up of buildings spanning a wide period from modest weather board cottages to two storey terrace style development including more recently constructed dual occupancies, and while not in the visual catchment of the subject site there are residential flat buildings of modern design with basement parking. 9 In the Statement of Issues, council raised five issues that can be summarised as follows: + Whether the proposed allotment sizes are of a suitable size to permit adequate solar access, landscaping, open space and car parking given the proposed built form and extent of non-compliance. + Whether the open space is of sufficient size and dimensions to enable recreational use and to serve as an extension of the function of the dwelling for relaxation, dining and entertainment. + Whether the proposed built form provides a reasonable level of solar and daylight access to the principle living areas and private open space of the dwelling. + Whether the proposed built form is appropriate given the surrounding built form and the impacts on privacy of neighbouring dwellings from the windows and upper level deck of No. 48A Devine Street. + Whether the proposed design adversely impacts upon the heritage conservation area and streetscape given the proposed built form and the existing built form and the extent of non-compliance. 10 The statutory planning regime for assessment of the proposed development includes: the South Sydney Local Environmental Plan 1998 (LEP); South Sydney (Heritage Conservation) Development Control Plan 1998, the Urban Design Development Control Plan 1997 and Development Control Plan No 11 – transport guidelines for development. 11 Under the LEP cl 10 states that the council shall not grant consent unless it is of the opinion that the proposal is consistent with the objectives of the zone. The subject site is in the Residential Medium Density 2(b) zone and the relevant objectives include: (a) to enhance the amenity of existing medium density residential areas; (c) to ensure that building form including alterations and additions is in character with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents or the existing quality of the environment; and (e) to facilitate a higher density and diverse forms of residential development on appropriate sites. 12 Division 1 of the LEP contains the heritage conservation provisions and cl 22 states consent shall not be granted within a heritage conservation area unless the consent authority is of the opinion that the proposal is consistent with the following relevant aims and objectives: (e) to ensure that any development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of heritage items, of heritage conservation areas and their setting, and of streetscape within heritage streetscape areas and their setting …