Gavin and Deborah McConnell Leichhardt Council [2006] NSWLEC 25

Land and Environment Court of New South Wales

CITATION : Gavin and Deborah McConnell Leichhardt Council [2006] NSWLEC 25

APPLICANT: PARTIES : Gavin and Deborah McConnell RESPONDENT: Leichhardt Council

FILE NUMBER(S) : 11306 of 2005

CORAM: Watts C at 1

Development Application :- Bulk KEY ISSUES: scale and siting

Streetscape.

Leichhardt Local Environmental Plan 2000, (LLEP2000) LEGISLATION CITED: Leichhardt Development Control Plan 2000, (DCP2000) Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED: Gillespies v Warringah Shire Council [2002] 124 LGERA 147; Project Venture Developments v Pittwater Council [2005] NSWLEC 191

DATES OF HEARING: 20/01/2006

DATE OF JUDGMENT: 01/20/2006

APPLICANT: Mr G McConnell, litigant in person SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr S Griffiths, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

20 January 2006

11306 of 2005 - Gavin and Deborah McConnell v Leichhardt Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Council (the council) of a development application to alter and add to an existing two-storey terraced dwelling, at Lot 1, DP 196923, being No 5 Hearn Street, Leichhardt. The subject terrace is the middle of a row of three. 2 I visited the land in company with the parties on the morning of the s 34 conference held on-site. Local residents gave evidence. 3 I have concluded that the SEPP1 objection to the floor space ratio, (FSR) in cl 19 of Leichhardt Local Environmental Plan 2000, (LLEP2000) is not well founded and as a result the application must fail. The land 4 The land is situated on the eastern side of Hearn Street, between Emily and Albion Streets, and has an area of some 182m2. The site is irregular in shape with a frontage of 4.84m to Hearn Street, and a depth on the north of around 22.7m, and a rear boundary of 14.18m. It has a right-of-way about 900mm wide, extending 9.3m in length from the Hearn Street property boundary, limited in height, provided on title between Nos 5 and 7 Hearn Street for the extent of the original two-storey portions of these dwellings. 5 The land falls approximately 1.1 metres from Hearn Street to the rear and White's Creek, with a slight crossfall at the rear. 6 The existing dwelling on the land is a two-storey terraced dwelling, with part single/ part two storey additions to the rear and is in a row of three similar dwellings. 7 White's Creek runs through the rear of the land on a strip of land about 3m wide covered by a concrete slab. 8 Two small freestanding metal sheds are located to the rear of the land. 9 A mature eucalypt tree is growing near the rear of the land, and a Chinese tallowwood is located within the street setback to Hearn Street. 10 A large eucalypt is also located in close proximity to the land, within the front setback of No 3 Hearn Street. 11 A brick party wall exists on title between No's 3 and 5 Hearn Street, that extends for a distance of 18.185m. 12 The building on the subject land is the middle dwelling in a row of three two-storey terraced homes. 13 No 3 Hearn Street abuts the land to the south, and shares a party wall with the subject property. It is on a triangular-shaped site and accommodates a two-storey brick terrace, with a two storey rendered brick addition to the rear. At No.7 Hearn Street to the north is a two-storey brick terrace dwelling, with corrugated iron roofing. Properties adjoining the site to the rear across White's Creek are Nos 119, 121 and 123 Albion Street. 14 The land is located within a residential area comprising mixed housing, including two-storey semi-detached or terraced dwellings and freestanding single-storey cottages. Relevant planning controls Leichhardt Local Environmental Plan 2000, (LLEP2000) 15 Under the provisions of the LLEP2000 land is zoned residential and the proposal as alterations and additions to a single dwelling house is permissible with consent. 16 To the rear of the land, White's Creek is 'unzoned' land under LLEP2000. 17 Other relevant planning controls are found in: · State Environmental Planning Policy No 1 - Development Standards, (SEPP1); · SEPP 55 - Contaminated Land (no issue raised under current proceedings); · Leichhardt Local Environmental Plan 2000 (LEP2000); · Leichhardt Development Control Plan 2000 (DCP2000); · Development Control Plan No 42 - Contaminated Land Management (no issue raised under current proceedings); · Development Control Plan No 38 - Waste Management; and · Draft Stormwater Requirements for Developments in Leichhardt.