Carr, L and J v Lane Cove Council [2007] NSWLEC 196

Land and Environment Court of New South Wales

CITATION : Carr, L and J v Lane Cove Council [2007] NSWLEC 196

APPLICANT: PARTIES : Leon and Jennifer Carr RESPONDENT: Lane Cove Council

FILE NUMBER(S) : 10770 of 2006

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Bushland impacts

LEGISLATION CITED: Lane Cove Local Environmental Plan 1987, (LCLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 29/03/2007 and 30/03/2007

DATE OF JUDGMENT: 13 April 2007

APPLICANT: Mr I Hemmings, barrister, with Ms D Malnersic, solicitor, instructed by Mr N O'Shae, solicitor SOLICITORS: NRG Legal LEGAL REPRESENTATIVES: RESPONDENT: Mr S N Griffiths, solicitor, with Ms R Vickers, solicitor SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

13 April 2007

10770 of 2006 – Leon and Jennifer Carr v Lane Cove Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Lane Cove Council (the council) to refuse a development application to alter and add to an existing dwelling house and to construct a gym, laundry, swimming pool, deck and carpark with four car spaces at No 24E Upper Cliff Road, Northwood, being Lot 7, DP 96768 and the eastern part of No 26 Upper Cliff Road being part of Lot 106, DP 284499. The applicant also seeks to subdivide and consolidate the land. 2 I visited the land in company with the parties on the morning of the first day of the hearing. I heard from local residents on site. 3 I have concluded that the application should fail as a result of the adverse impact of the proposal on bushland. The land 4 The land is situated on the northeastern side of the north south section of Upper Cliff Road at Northwood. The land is irregular in shape, with an area of 610.78m2. 5 The land-locked narrow building site near the front boundary is accessed by way of right-of-carriageway linking with Upper Cliff Road. 6 There is a steep fall of about 15m from the right of carriageway to the rear boundary down to the Gore Creek Reserve at the rear or eastern side of the land. Bushland and rock outcrops predominate. Erected on the land is a two-storey dwelling house with a double carport adjacent to the driveway that serves the six dwelling houses further to the north also accessed via the right-of-carriageway that runs off a slip road below the level of Upper Cliff Road. The land has a drainage easement along the southern boundary of the land near the common boundary with No 24F Upper Cliff Road. 7 The land proposed to be annexed to No 24E Upper Cliff Road is the eastern down slope garden section of No 26 Upper Cliff Road. The existing two-storey dwelling house at No 26 Upper Cliff Road will be retained and the proposed alterations and additions to No 24E would be constructed on the presently undeveloped portion of the neighbouring property. Relevant planning controls Lane Cove Local Environmental Plan 1987, (LCLEP) 8 Under the provisions of the LCLEP land is partly zoned Environmental Protection Area and partly residential 2(A1) and the proposal is permissible with consent. 9 The objectives of zone residential 2(A1) under LCLEP are: (a) to retain and where appropriate improve the existing residential amenity of a detached single family dwelling area, and (b) to provide limited single storey villa home development whilst maintaining the existing street character and encouraging development that is in sympathy with existing neighbourhoods in the following respects: (i) setbacks, (ii) building mass and style, (iii) views, (iv) dwelling colour, (v) landscaping, (vi) the provision of off-street parking. 10 That part of the land designated Environmental Protection is subject to cl 11 of the LCLEP. Under cl 11(3) the "…council shall not consent to the carrying out of development on or with respect to land to which this clause applies where, in the opinion of the Council, the vegetation, topography or distinctive features of that land are likely to be adversely affected thereby." Other planning controls 11 Bushland Development Control No. 1 (DCP1) control of development adjacent to bushland, applies to the land. 12 State Environmental Planning Policy No 19 - Bushland in Urban Area, (SEPP19) applies. 13 The Rural Fires Act 1997, Section 100B requires a Rural Fire Safety Authority. The proposal and its history 14 Development application No D46/05 was lodged with the respondent council in March 2005 to alter and add to the existing building and to construct a gym, laundry, swimming pool, deck and carpark with four car spaces, on the land. The applicant also seeks to subdivide and consolidate into one lot the existing lot and part of the rear of the neighbouring lot. Notification 15 In March 2005 the application was notified to nearby owners and occupants and the council received five submissions. These included comment: · Lane Cove Bushland and Conservation Society: "…As a majority of the development is within the Environmental Protection Zone... it should be refused." However if approved, [the application] should be subject to conditions. eg recycling of grey water, retention of trees and bush fire considerations. · No 24A Upper Cliff Road: Strong support for the proposal particularly in relation to the provision of off-street parking. · No 28 Upper Cliff Road: Concerns relating to the approved proposal being within Environmental Protection Zone, preservation of trees, extra traffic within the subdivision, impact on bushland and effect of construction activity. · No 24F Upper Cliff Road: Increased parking and congestion to the right of carriageway, increase stress to the infrastructure and foundations on the land, over building on the land, disturbing the existing flora and fauna and validity of extension of right of carriage way to the consolidated allotment. · No 24D Upper Cliff Road: Clarification as to the extent of the alterations and additions to the dwelling, resultant increase in vehicle traffic to carrying out building work, engineer's report on suspended roadway to carry construction vehicles conditions which should be attached to any approval and the validity of extension of right of carriageway to the consolidated allotment.