Curk v Newcastle City Council [2004] NSWLEC 610

Land and Environment Court of New South Wales

CITATION : Curk v Newcastle City Council [2004] NSWLEC 610 APPLICANT Anthony Curk PARTIES : RESPONDENT Newcastle City Council FILE NUMBER(S) : 10613 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Should the Newcastle Urban Strategy 1998 prevail - drainage - streetscape - overlooking - privacy - shadowing - density - height/bulk - use of a drainage easement - lack of important details on plans

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Lower Hunter Urban Housing Development Control Plan 1995 Newcastle Urban Strategy 1998 Newcastle Local Environmental Plan 2003 CASES CITED: Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 13/09/2004 and 11/10/2004 EX TEMPORE 10/15/2004 JUDGMENT DATE :

APPLICANT Mr A Pickles, barrister SOLICITORS McDonald Johnson LEGAL REPRESENTATIVES: RESPONDENT Mr J B Maston, barrister SOLICITORS Sparke Helmore

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

K G Hoffman

15 October 2004

10613 of 2004 Anthony Curk v Newcastle City Council

JUDGMENT

1 This was a Class 1 appeal, No.10613 of 2004 between Anthony Curk and Newcastle City Council in regard to the refusal of DA99/3077 on 16 April 2004. 2 The application was lodged in 1999 for three 2-bed and one 3-bed attached dwellings or townhouses at No.111 Michael Street, Jesmond. The proposal was on the corner of Michael and Shereline Avenue. The 3-bed townhouse faced Michael Street and had a two car garage with driveway approximately in the same position as the existing drive to the existing house on the land. The other three units fronted Shereline Avenue and each had its own driveway and single garage and a street front garden. 3 Service courtyards for each unit were along the western boundary that adjoined No.113 Michael Street. It was a two storey house above high foundation walls and had a large carport attached at the rear at ground level adjoining the subject property. Number 113 had sizeable trees along the back boundary and some trees on the side boundary adjoining the site. The high foundations were caused by the slope of the land down from Michael Street. 4 The topography of No.113 indicated it had once been a natural gully and the owner indicated that much effort and money had been spent in resolving the drainage problems of No.113. 5 The subject Lot No.111 also sloped down from Michael Street towards the south and also down from Shereline Avenue towards the west and No.113. At the rear of the subject lot was No.17 Shereline Avenue. It had a garage adjacent to the subject lot and the southwest corner of the subject lot adjoined its backyard. Most of No.17's backyard adjoined the rear boundary of No.113. 6 The subject land comprised two lots, Lot 2 DP29494 was the main area with Lot 3135 DP755247 being up at the Michael Street frontage. It had been part of the Michael Street road reserve, but apparently as there was no continuous strip of extra road reserve along the street, and the Council had sold it to the applicant. 7 The site was rectangular and oriented north-south with 15.545 m frontage to Michael Street and 47.475 m to Shereline Avenue with an area of about 732 m sq. There was very little vegetation except for grass. There was an easement for drainage along the western boundary of Lot 2. It was 1.83 m wide and had a council drain pipe in it. There was no easement in Lot 3135 but the pipe pre-existed that sale, and it angled across Lot 3135 from the western boundary towards the north-east corner where there was a grated inlet sump near the corner of Michael Street and Shereline that carried water downhill. 8 The evidence was that in time of high rainfall, water built up in a sag in Michael Street adjacent to the existing driveway of the subject site, and when the drain could not take it, there was surcharge across the driveway and along the western boundary. The owners of both No.113 and No.17 told the Court considerable volumes of water ran down that route then through the backyards of No.17 and its neighbours downhill. 9 The locality was a mixture of detached houses and flats. Both types of housing had various design styles of one and two storeys high, some with garages under. There was one 1960's or 1970's block of flats at the west end of Shereline Avenue that was three storey. A local primary school was about one block west of the site in Michael Street. There were two sets of townhouses on the high side of Michael Street near the site and some 1990's detached dual occupancy houses. 10 The issues in the case were: