G K Morgan Pty Ltd v Lane Cove Council [2006] NSWLEC 304

Land and Environment Court of New South Wales

CITATION : G K Morgan Pty Ltd v Lane Cove Council [2006] NSWLEC 304

APPLICANT G K Morgan PARTIES : RESPONDENT Lane Cove Council

FILE NUMBER(S) : 11173 of 2005

CORAM: Tuor C

KEY ISSUES: Development Application :- alterations and additions to existing house, subdivision and construction of new house impact on heritage significance

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 1987

CASES CITED: G K Morgan Pty Ltd v Lane Cove Council NSWLEC 163; Segal & Anor v Waverley Council [2005] NSWCA 310

DATES OF HEARING: 2 & 3 March 2006

DATE OF JUDGMENT: 06/05/2006

APPLICANT Mr J Cole, solicitor of Abbott Tout LEGAL REPRESENTATIVES:

RESPONDENT Mr S Griffiths, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

5 June 2006

11173 of 2005 GK Morgan Investments Pty Ltd v Lane Cove Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Lane Cove Council (the council) of a development application (D226/05) under the Environmental Planning and Assessment Act 1979 for partial demolition and alterations and additions to an existing house, subdivision into two allotments and construction of a two storey house on the proposed new lot at 88 Northwood Road, Northwood (the site). The site and its context 2 The site is on a corner bounded by three streets. It is generally rectangular and has an area of 1347sqm. Its frontage to Northwood Road and Eva Street is about 20m and the frontage to Cliff Road is about 71.5m. The boundary to the south adjoins another house and is about 63m. 3 The site is developed with a single storey house. It has a number of trees in the rear garden and a mixture of shrubs alone the southern boundary in the front garden. There are three mature Canary Island Date Palms on the verge of Northwood Road and nine Oleander bushes along the verge on the northern boundary. 4 The area is characterised by detached one and two storey houses on relatively large allotments with established gardens and generous front setbacks. Some larger houses on the opposite side of Northwood Road have been converted to flats. Eva Street has more of the character of a lane with mostly rear frontages providing access to garages. Adjoining the site to the south is a group of three houses, which were built around the same period as the house on this site. Background 5 The application was lodged on 5 August 2005. Council notified the application to adjoining residents and received 48 submissions. 6 The applicant lodged a class 1 appeal on 14 October 2005 against council's deemed refusal of the application. Council refused the application on 12 December 2005. 7 Council approved an earlier development application (D78/01) for substantial alterations and additions to the existing house in October 2001. This approval has not been implemented. 8 Another development application (DA18/04) by the same applicant was the subject of a Land and Environment Court Appeal (11085 of 2004). Bly C dismissed the appeal on 21 April 2005 (G K Morgan Pty Ltd v Lane Cove Council NSWLEC 163). The applicant submits that the current application takes into account the findings in his judgment. 9 The parties disagreed on the extent to which I should consider the previous decision of Bly C. Mr Cole, for the applicant, submitted that the findings of Bly C and the previous application were relevant matters to be considered. Further, he submitted that I should reach the same conclusion as Bly C for those aspects of the proposal, such as the subdivision, which remain the same as the previous application and which Bly C had found to be acceptable. 10 Whereas Mr Griffiths, for the council, held the opposite opinion that the application must be considered on its own merits and that in accordance with the decision in Segal & Anor v Waverley Council [2005] NSWCA 310 the Court is not bound to follow the decision of Bly C or even to take it into account if it is irrelevant to the resolution of the contested issues. 11 The decision of Bly C is clearly relevant to this appeal, I am not bound to follow his decision and the application must be considered on its merits in the particular circumstances of this case. However, I note that the decision in Segal also stated that it is desirable to refer to the previous decision where relevant. In providing reasons for my decision it is appropriate that this be done in the context of Bly C previous decision. The Proposal 12 The current application is for: · alterations and additions to the existing house, · the subdivision of the site into two Torrens title lots, and · the construction of a new two-storey detached house on the resulting new lot. 13 The additions to the existing house involve a part one and part two level extension at the side and rear. The alterations involve the demolition of some internal fabric and internal rearrangements. 14 The subdivision will create a new lot 2 (88 Northwood) with an area of 777 sq m which would accommodate the existing house. A new lot 1 (88A Northwood Road) with an area of 570 sq m is to accommodate the new dwelling. Lot 2 will have frontages to Northwood Road and Cliff Road. Car access to a single garage will be off Cliff Road. Lot 1 will have frontages to Cliff Road and Eva Street with car access to a double garage off Eva Street. 15 A number of trees are to be removed to accommodate the new house which is designed in a U shape around a large cheese tree and is contemporary in design. Planning Framework 16 The site is zoned Residential 2(a2) under Lane Cove Local Environmental Plan 1987 (LEP 1987). Dwelling houses and subdivision are permissible with development consent. Clause 9 (3) of the LEP provides that consent shall not be granted unless the proposal is consistent with the objectives of the relevant zone. 17 The objective of the 2(a2) zone is: To retain the existing residential amenity of detached single-family dwelling areas. New dwelling houses or extensions of existing dwelling houses will be permitted only where they would not be highly visible when viewed from the Lane Cove River or Parramatta River. 18 Under LEP 1987, the existing house is one of four separately identified houses together comprising a heritage item and referred to as B122 in Schedule 3 of the LEP. There are a number of other heritage items in the vicinity of the site. 19 Clause 18A of LEP 1987 relevantly provides that consent is required for alterations to a heritage item. Sub cl (3) provides that: