Lasovski, M and Anors v Hurstville City Council [2006] NSWLEC 816

Land and Environment Court of New South Wales

CITATION : Lasovski, M and Anors v Hurstville City Council [2006] NSWLEC 816

APPLICANT: PARTIES : Mendo, Tome and Dobrica Lasovski RESPONDENT: Hurstville City Council

FILE NUMBER(S) : 10625, 10700 and 10843 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application - Local Government approval :- Outbuilding: Should the unauthorised works be allowed to stand in whole or in part?

Hurstville Local Environmental Plan 1994, (HLEP1994)Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, (REP2) LEGISLATION CITED: Code for the Erection of Outbuildings, (Code) Development Control Plan No 14 - Exempt and Complying Development, (DCP14) Environmental Planning and Assessment Act 1979, ss 79C, 96(6), 149 and 121

DATES OF HEARING: 18/12/2006

EX TEMPORE JUDGMENT DATE : 12/18/2006

APPLICANT: Mr S Kondilios, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Maddocks RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

18 December 2006

10625, 10700 and 10843 of 2006 - Mendo, Tome and Dobrica Lasovski v Hurstville City Council

JUDGMENT

1 Appeal No 10625 of 2006 is under s 121ZK of the Environmental Planning and Assessment Act 1979, against the decision of Hurstville City Council (the council) to refuse to maintain an Order 15 under s 121B of the Act in respect of unauthorised or non-complying building works at the rear of a dwelling house at Lot 15, DP 543881, being No 38 Scott Street, Mortdale. 2 Appeal No 10700 of 2006 is under 149F of the Environmental Planning and Assessment Act 1979, against the decision of the same council to not issue a building certificate in respect of unauthorised or non-compliant building works including a barbeque and storeroom on the land at Mortdale. 3 Appeal No 10843 of 2006 is under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the same council of an application to modify development consent for a dwelling house on the land at Mortdale. 4 I visited the land in company with the parties on the morning of the first day of the hearing and I heard from nearby residents. 5 I have concluded that the non-complying building works must be reduced in height at the rear eastern boundary in order to reduce adverse environmental amenity impacts on neighbours. Approval may then be given for new works to bring the development into reasonable compliance. The land 6 The land is situated on the eastern side of Scott Street, and a frontage of 17.675m to Scott Street, a depth of 43.04m and an area of 760.5m2. The land has a gradual fall to the rear of about 2m, and some filling has been placed at the rear. 7 Erected on the land is a new two-storey dwelling house (occupied) and at the rear is a partly built outbuilding. All trees have been removed during development. 8 Erected on the land to the north is a single-storey fibro cottage and swimming pool, and on land to the south is an old weatherboard dwelling with extensive additions. The dwellings at the rear are erected on sloping sites with shallow rear yards containing swimming pools. 9 The locality is characterised as low-density, single-lot dwelling houses with a mix of single-storey and two-storey buildings. Relevant planning controls Hurstville Local Environmental Plan 1994, (HLEP1994) 10 Under the provisions of the HLEP1994, the land is shown as Zone 2 (Residential Zone), and the proposal as a dwelling house and appurtenant buildings is permissible with consent. 11 Relevant clauses of the HLEP1994 include: · Clause 8(1) - Zone objectives. · Clause 8(2) - Development Control table. · Clause 9 - Council's policies. · Clause 9A - Exempt or complying development. Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, (REP2) 12 The site is within the area affected by the REP2 and the proposed disposal of stormwater, would be consistent with the council's requirements for the disposal of stormwater in the catchment. Code for the Erection of Outbuildings, (Code) 13 The council adopted the Code on 27 January 1993 and the relevant clauses include: · Clause 6.1 · Clause 6.3 – floor space ratio · Clause 6.5 - setbacks · Clause 6.6