Linbay Pty Limited v Marrickville Council [2004] NSWLEC 193

Land and Environment Court of New South Wales

CITATION : Linbay Pty Limited v Marrickville Council [2004] NSWLEC 193 APPLICANT Linbay Pty Limited PARTIES : RESPONDENT Marrickville Council FILE NUMBER(S) : 11386 of 2003 CORAM: Watts C KEY ISSUES: Development Application :- proposed subdivision and implications on the streetscape - Height and architectural style - Side setbacks and Carparking Marrickville Local Environmental Plan 2001, (LEP 2001) LEGISLATION CITED: Marrickville Development Control Plan No. 35, Vol 1 - Urban Housing, (DCP 35) Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 27/04/2004 DATE OF JUDGMENT: 04/29/2004

APPLICANT Mr C C Gough, solicitor

SOLICITORS Storey & Gough

RESPONDENT LEGAL REPRESENTATIVES: Mr G A Christmas, solicitor SOLICITORS Marrickville Council RESPONDENT Mr G A Christmas

SOLICITORS Marrickville Council

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Marrickville Council v Linbay Pty Limited

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Marrickville Council (the council) of a development application to subdivide into two lots and erect a two-storey dwelling on each lot at Lot 1 in DP 85202, being 10 Alfred Street, St Peters. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the application should succeed since when considered under s 79C of the Environmental Planning and Assessment Act 1979 it is satisfactory. I am satisfied that the proposal would fit in with the street both in terms of the subdivision pattern and building form. The land 4 The land is situated on the southwestern side of Alfred Street, between Rolfe and Bakers Lanes. The land, which is vacant, is rectangular in shape and has a frontage to Alfred Street of 9.27m and is 30.715m deep, with an area of 283m2, and is generally level. 5 Nearby are other dwelling houses, and industrial uses are found on the Princes Highway and Rolfe Lane. 6 Single-storey dwelling houses are erected on abutting land. To the southeast at No 8 Alfred Street is a single-storey weatherboard cottage with a corrugated iron roof abutting the common boundary with the land. To the northwest at No 20 Alfred Street is another single-storey weatherboard cottage with a corrugated iron roof, set back about 900mm from the common boundary with the land. 7 With the exception of Nos 22, 22A and 24 Alfred Street the southwestern side of Alfred Street is generally characterised by single-storey dwelling houses. Nos 22, 22A and 24 Alfred Street are all two-storey terraced houses and on a corner site at No 56 Alfred Street two x two-storey dwelling houses are under construction, setback around 1.2m from each side boundary. 8 On the opposite northeastern side of Alfred Street single dwelling houses predominate and Nos 1 & 9 Alfred Streets are two-storey rendered brick residences. 9 Most land within the area has a frontage width in excess of 7.5m, with only four (4) of the thirty-five (35) properties having a width of less than 7.5m. No 22 Alfred Street two doors removed from the subject land is 4.03m wide. 10 Alfred Street also contains a significant number of 40-foot (12.19m) and 50-foot (15.24m) allotments. 11 The land is within the 25 to 30 ANEF2010 of Sydney Airport. Relevant planning controls Marrickville Local Environmental Plan 2001, (LEP2001) 12 The land is zoned Residential 2(A) under the provisions of LEP2001, gazetted on 18 May 2001, and the proposal is permissible with development consent. 13 There are no floor space ratio controls applying to land with a site area up to 200m2. No height limit applies to dwelling houses in the Residential A zones. Marrickville Development Control Plan No 35, Vol 1 - Urban Housing, (DCP35) 14 DCP35 was adopted by the council on 5 December 2000 and came into force upon gazettal of LEP2001. The relevant sections of DCP35 include: · B2 Building Setbacks; · B3 Streetscape; · 3A Subdivision; and · 3B Garages, Carports and Driveways. 15 DCP35 includes Objective O1 and O3 and Control C1: O1 To retain the prevailing subdivision and building character of the street. O3 To ensure subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street. C1 Proposed subdivision or amalgamation is similar to the prevailing subdivision and building character in terms of block width, site dimensions and layout, and is consistent with the streetscape of the subject development. NB: 1. Council generally considers "streetscape" to apply to those adjoining and adjacent properties on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances, it is appropriate to consider up to ten allotments on either side of the subject site. 2. Properties located in the surrounding streets do not usually form part of the streetscape context, and are therefore not taken into account. 16 Other Development Control Plans and Policies include: · DCP No 19 - Parking Strategy; · DCP No 27 - Controls for Site Waste Minimisation; · DCP No 32 - Energy Smart Water Wise; · DCP No 38 - Community Safety; and · Marrickville Contributions Plan 1996.