Huntington & MacGillivray v Hurstville C C [2005] NSWLEC 449

Land and Environment Court of New South Wales

CITATION : Huntington & MacGillivray v Hurstville C C [2005] NSWLEC 449

APPLICANT Huntington & MacGillivray

PARTIES : RESPONDENT Hurstville City Council

FILE NUMBER(S) : 10433 of 2005

CORAM: Bly C

KEY ISSUES: Development Consent :- Amendment of development consent for a residential flat building - character - ceiling - height - internal amenity

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan

DATES OF HEARING: 5/08/2005 EX TEMPORE JUDGMENT DATE : 08/05/2005

APPLICANT Mr M. Ball, town planner

LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

5 August 2005

10433 of 2005 Huntington & MacGillivray v Hurstville City Council

JUDGMENT 1 On 2 August 1999, Hurstville City Council granted development consent No. 1999/0163 for a three­storey plus basement residential flat building at Nos. 39-41 Pitt Street, Mortdale. The building for which consent was granted is presently under construction and according to the photographs is nearing completion. 2 This appeal relates to an application under s 96 of the Environmental Planning and Assessment Act 1979, ("the EPA Act") to incorporate a new mezzanine floor in each of units 7, 8 and 9, together with a stairway providing access thereto from the living rooms below. These mezzanine areas will have widths of between 3 and 3.1 m with lengths of between 6 and 8 m. They each have balustrades and overlook the living areas from which they obtain light and air. The floor to ceiling heights within these mezzanines range variously between, by scale, about 1.5 m, 1.8 m, 2.1 m and 2.6 m, taking into account the pitched roof configuration. 3 Apart from the possible installation of skylights in the roof, the proposed changes to the building will not have any apparent effects on the external appearance of the building. 4 The site of the development is included in Zone No. 2, under Hurstville Local Environmental Plan 1994 , and in this zone residential flat buildings are permissible with development consent. 5 Relevantly applicable to the application is the so called Interim Residential Development Code ("the Code"), which I am satisfied should be treated as a development control plan (consistent with its own description in part 1), prepared under s 72 of the EPA Act, for the purposes of s 79(C) of that Act. 6 The application was notified to owners and residents of neighbouring properties, and one letter of objection was received. That letter expressed concern about a possible increase in the height of the building and resulting overshadowing. In this regard I note that the proposed changes will not increase the height of the building, and that as a consequence there will be no resulting loss of sunlight to that objector's property. 7 The application was refused at council's development assessment committee meeting held on 1 June 2005, for reasons relating to: + The exceedance of the maximum number of storeys permitted under the code. - The development would be inconsistent with the desired character of Development Area D under the code. - The development would not be in the public interest in that it would set an undesirable precedent. - The mezzanine space does not provide adequate amenity for occupants in relation to natural light and ventilation.