Pambris v Marrickville Council [2005] NSWLEC 764

Land and Environment Court of New South Wales

CITATION : Pambris v Marrickville Council [2005] NSWLEC 764

APPLICANT Sam Pambris PARTIES : RESPONDENT Marrickville Council

FILE NUMBER(S) : 10544 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Consent :- Section 96 amendment - bulk - height - privacy - shadows

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Marrickville Local Environmental Plan Marrickville Development Control Plan No. 35

DATES OF HEARING: 19-20/12/2005 EX TEMPORE JUDGMENT DATE : 12/23/2005

APPLICANT Dr S Berveling, barrister Instructed by: Mr P Kapetas, solicitor Of: Landerer & Co. LEGAL REPRESENTATIVES:

RESPONDENT Mr G Christmas, solicitor Marrickville Council Legal Branch

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

23 December 2005

10544 of 2005 Sam Pambris v Marrickville Council

JUDGMENT 1 This is a class 1 appeal No. 10544 of 2005 between Pambris and Marrickville Council in regard to the refusal of a s 96 application to amend development consent 2003 00601 dated 3 October 2004 in regard to the restoration and extension of a heritage item stone house and the erection on the same property of nine townhouses above basement carparking at 114 Ewart Street, Dulwich Hill. 2 The heritage item is known as Gladstone Hall. The property had been used as a rehabilitation clinic. During that time extensions to the house and a large accommodation block had been present where the proposed townhouses and heritage house extension are located. The earlier accommodation block and the previous house extension had been demolished at the time of the hearing and the basement excavation was completed. 3 The changes to the approved plans now sought by the applicant are in Exhibits A, C, G and H. They show, inter alia: (a) A gate and entry ramp to the front garden of the heritage house so that residents of the townhouses can use it for communal recreation. (b) Conversion of four townhouses in the western end of the site to be changed into three larger townhouses covering about the same area. (c) One of the four townhouses was two storey with a master bedroom on the third half level in the original consent. That third half level is not repeated in the amended design so that component of the building is lower. However due to a site constraint the three new larger townhouses are up to about half a metre higher to the second storey eaves level than the original consent. (d) To retain the number of townhouses at the originally approved nine there is a new two storey townhouse at the east end of the building. It occupies in part a space in the original approval for a one storey component. There were no issues or objections in regard to this part of the development. (e) The basement carpark remains the same as approved. Each townhouse and the heritage house have separate garages in the basement with separate stairs for each dwelling up from the basement level. (f) There were no issues in regard to the restoration and extension to the heritage item Gladstone Hall. (g) The landscape plan amendments had also led to changes to the hydraulic drainage plans to move underground pipes away from both existing trees and proposed new trees and to delete masonry boundary fences to protect neighbours' trees. 4 The parties had negotiated before the hearing and the plans had been further modified and exhibited for neighbours to comment. The amended issues in the appeal were: Issue 1: had been deleted. Issue 2: the proposed modification would result in the southern elevation of the townhouses being both higher and longer than currently approved which would have an adverse impact on the adjacent properties by way of bulk, scale and overshadowing. Issue 3: was deleted. Issue 4: Having regard to the configuration of the site the proposed modification would result in an unacceptable level of floor space and density which constitutes an overdevelopment of the site. 5 The parties had agreed that the Court should appoint Ms D Laidlaw, town planner, as the joint expert. She had prepared three reports in August, October and November of 2005 after each round of negotiations and changes to the plans. The council had resolved on 6 December 2005 not to oppose the s 96 application in this appeal. 6 The objectors were notified of this and two chose to give evidence. They were: