Robinson, Kirk v Leichhardt Council [2007] NSWLEC 16

Land and Environment Court of New South Wales

CITATION : Robinson, Kirk v Leichhardt Council [2007] NSWLEC 16

APPLICANT: PARTIES : Kirk Robinson RESPONDENT: Leichhardt Council

FILE NUMBER(S) : 10716 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application - Subdivision :- Pedestrian and vehicular safety in lane and stacked car parking condition

Leichhardt Local Environmental Plan 2000, (LLEP) LEGISLATION CITED: Leichhardt Development Control Plan 2000, (LDCP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 11/12/2006

DATE OF JUDGMENT: 16 January 2007

APPLICANT: Mr I Hemmings, barrister, instructed by Mr B Watts, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Baker Ryrie Rickards Titmarsh RESPONDENT: Ms J Walsh, solicitor SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

16 January 2007

10716 of 2006 - Kirk Robinson v Leichhardt Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Council (the council) of a development application to alter and add to an existing residential flat building of seven (7) dwellings to reduce the number of dwelling units to three (3) and to strata subdivide at Lot B, DP 420842, being No 40 Cove Street, Birchgrove. 2 I visited the land in company with the parties on the morning of the hearing and I heard from local residents, some of whom supported the development. 3 I have concluded that the application should succeed. The land 4 The land is situated to the west of the junction of Cove and River Streets, at Balmain. It has a street address to Cove Street and partly fronts an unmade section of that street, adjacent to the Parramatta River. The land is largely rectangular in plan and the length of the northeastern boundary to Cove Street is 24.28m, of the southeastern boundary to River Street is 16.765m, the rear splayed boundary is 18.25m and the land is 350.3m2 in area. 5 Erected on the land is a three-storey building that accommodates seven (7) dwelling units. The building was originally a two-storey brick dwelling and has had numerous additions over the years. 6 No on-site car parking is presently provided. A large Eucalyptus is located at the northern corner of the land. The survey indicates that the site slopes one metre from its frontage with River Street at 18.44m AHD to the rear of the site at a level of 17.46m AHD. 7 The area is residential and is characterised by a mix of single-storey and two-storey dwellings and two-storey and three-storey townhouses. 8 To the northeast is the unmade section of Cove Street. The residential flat complex known as Mariner's Cove is located across Cove Street at Nos 2-6 Louisa Road, Birchgrove. This comprises a number of two-storey red brick residential flat buildings with a basement garage accessed from Cove Street. 9 To the southeast the land fronts River Street that not much more than a lane about 4.4m wide. On the opposite side of River Street is No 36 Cove Street. This dwelling is a two-storey timber and fibro dwelling that has the appearance of a single-storey dwelling with attic level fronting Cove Street and two storeys to the rear, with a single storey skillion side addition to River Street. The single-storey addition of this dwelling is built onto the River Street frontage and a set of gates that gives access to the rear of this property would be located directly opposite the entrance to the proposed stacked parking area at No 40 Cove Street. The rear section of No 36 Cove Street comprises a sandstone wall to River Street - this wall is setback about 1.8 metres from the side of that dwelling. 10 To the northwest and southwest (side and rear): There is a residential flat complex known as Nos 18-20 River Street. This development is about five-storeys in height and steps down the slope to the Parramatta River. The aspects of the development that are visible from River Street include the double garage, hardstand parking areas, entrance gate and vestibule and landscaping. Views of Parramatta River are available from River Street over the adjacent property. Relevant planning controls Leichhardt Local Environmental Plan 2000, (LLEP) 11 Under the provisions of the LLEP the land is zoned Residential and the proposal is permissible with consent. Under cl 18(3) of LLEP alterations and additions to approved dwellings, are permissible development. 12 The land is located in a heritage conservation area under the LLEP and is located within the Birchgrove and Ballast Point Heritage conservation area under Draft Local Environmental Plan 2000 (Conservation and Heritage Provisions). The land is located within 40 metres of the Parramatta River and involves works to a residential flat building; therefore the proposal was formerly integrated development under the Rivers and Foreshores Improvement Act 1948, (RFI). 13 River Street is uncoloured on the zoning map to the LLEP and cl 38(1) and (2) of the LLEP provides: Development on public roads - clause 38 (1) A person must not carry out development on a public road shown uncoloured on the Zoning Map, or part of such a road lawfully closed, without the development consent of the consent authority. (2) The consent authority may grant its consent under subclause (1) only for a purpose that may be carried out either with or without development consent on land adjoining that road. 14 Clause 19(2) of the LLEP relates to floor space: Except where the development is carried out in accordance with clause 23(1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area . 15 In this part of Balmain the FSR is 0.7:1. 16 Clause 19(3) of the LLEP deals with landscaped area and states: Except where the development is carried out in accordance with clause 23(1): 1 the minimum landscaped area for residential development is 40% of the site area, and 2 25% of the landscaped area required under paragraph (a) or 10% of the total site area: (i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and (ii) is to be permeable, and (iii) is to be appropriate for substantial deep planting. Landscaped area means the part of a site area at ground level: (a) not occupied by any building above or below ground, and (b) not overhung by part of a building with a clearance of less than 2.4 metres, and used for recreation, lawns, gardens and substantial planting. It does not include balconies, driveways and parking areas, but includes decks where they have a direct connection to ground level and are no higher than 500 millimetres above ground level.