IUS Pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 319

Land and Environment Court of New South Wales

CITATION : IUS Pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 319 APPLICANT IUS Pty Ltd PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 10254 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- 2 town houses - floor space ratio - sympathy of design for existing and future character of locality

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Leichhardt Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 15/06/2004 EX TEMPORE 06/15/2004 JUDGMENT DATE :

APPLICANT Ms S Duggan, barrister SOLICITORS Stone and Partners LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

15 June 2004

10254 of 2004 IUS Pty Ltd v Leichhardt Municipal Council

JUDGMENT 1 This was a class 1 appeal No. 10254 of 2004 between IUS Pty Ltd and Leichhardt Municipal Council in regard to deemed refusal of D/2003/783 for the demolition of an existing house No. 58 Mackenzie Street, Leichhardt, and its replacement with 2x2 storey attached town houses with basement parking for four cars. 2 The issues in the case were summarised into two main matters. First was the State Environmental Planning Policy No. 1 objection against the exceedance of the statutory floor space ratio that was set at 0.5:1. The proposal was either 0.538:1 or 0.547:1 according to the applicant or respondent respectively. 3 The second issue was whether or not the proposal would be sympathetic to the existing and future character of the Piperston Distinctive Neighbourhood under the Leichhardt Local Environmental Plan 2000 as amended to 2 April 2004. 4 The latter gazettal was important as it specifically required under cl 17(a) the assessment of any development application to take account of the suite of controls under Development Control Plan 2000. 5 In regard to achieving the desired future character the respondent's case for not achieving that character related to detailed provisions in the Development Control Plan which were listed in the Issues as follows:- Aims and Objectives 1. Whether the proposal satisfies Clause 7(3) Land Use Objectives of LEP 2000. 2. Whether the proposal satisfies the requirements of Clause 13 - General Objectives of LEP 2000, in particular, Clauses 13 (1) (b) and 13(2)(a),(b), (c) and (d). Particulars The proposed development will have a detrimental effect on the existing streetscape and does not promote good design. Housing 3. Whether the proposal satisfies the requirements of Clause 17 – Housing Objectives of LEP 2000, in particular, Clause 17 (a) and (b). Floor Space Ratio 4. Whether the proposal is unacceptable having regard to non-compliance with the floor space ratio controls in Clause 19 (2) of the Leichhardt Local Environmental Plan 2000 ("LEP 2000"). 5. Whether the submitted State Environmental Planning Policy No 1 – Development Standards ("SEPP 1") Objection in respect to Clause 19 (2) of LEP 2000 should be supported and upheld. 6. Whether the SEPP 1 objection refers to the correct objective in LEP 2000 to rationalise non-compliance with clause 19(2) of LEP 2000. Particulars: LEP 2000 was amended vide Amendment No. 11 published in the Government Gazette No. 69 dated 2 April 2000 which amends the underlying floor space objectives, which objectives are not referred to in the SEPP 1 objection prepared by Mr Goodyer in his statement of environmental effects at page 28. There are no savings provisions which apply to amendment No. 11. Height, Bulk and Scale and Streetscape Character 7. Whether the proposed development is compatible with the scale, form, design and character of existing development in the locality. 8. The proposed development will have an unacceptable height, bulk and scale which will result in a degradation of the streetscape character. Particulars: Non-compliance with: § Clause 15 (c) of LEP 2000; § Objectives and requirements of Part A 4.0 of the DCP – Urban Form and Design § Part A 10.2 of the DCP – Leichhardt Suburb Profile of DCP 2000, particularly with respect to Clause 10.2.3 – Piperston Distinctive Neighbourhood; § Clauses B1.2, B1.3 B1.5, B1.6 and 1.7 of the DCP, particularly with regard to the building envelope control of 3.6 metres for the Piperston character precinct, and the underlying objectives of that control to establish appropriate built form ie 'single storey or low 2 storey utilising the roof space'. The proposal is for a full two storey height dwelling plus partly expressed basement and is inconsistent in terms of its fundamental form with Part B1.2's requirements. Sufficient information 9. Whether the applicant has submitted sufficient information to allow the consent authority to assess the structural engineering works proposed to be carried out to the party wall adjoining No. 56 Mackenzie Street, Leichhardt. 10. Whether consent of the owner of No. 56 Mackenzie Street is required due to the works proposed to the party wall. 11. Whether sufficient details have been provided regarding rights of access to parking arrangements with the subdivision application. 6 In regard to Issues 9, 10 and 11 the parties indicated that they could be dealt with by conditions of consent.