Forty Twenty Pty Ltd v Marrickville Council [2005] NSWLEC 117

Land and Environment Court of New South Wales

CITATION : Forty Twenty Pty Ltd v Marrickville Council [2005] NSWLEC 117

APPLICANT Forty Twenty Pty Ltd PARTIES : RESPONDENT Marrickville Council

FILE NUMBER(S) : 11428 of 2004

CORAM: Tuor C.

Development Application :- Existing use rights Compatibility with existing and future context KEY ISSUES: impact on adjoining residential amenity amenity of the proposal

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Marrickville Local Environmental Plan 2001

CASES CITED: Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

DATES OF HEARING: 14/03/2005

DATE OF JUDGMENT: 03/17/2005

APPLICANT Mr G Green, solicitor Pike Pike & Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Mr G Christmas, solicitor Marrickville Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

17 March 2005

11428 of 2004 Forty Twenty Pty Ltd v Marrickville Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Marrickville Council (the council) of a development application (200400622) at 246 Wardell Road, Dulwich Hill (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is close to Dulwich Hill Railway Station and is located on the eastern side of Wardell Road between Ewart Street and Dudley Street with rear lane access to Murray Lane. It is rectangular in shape with an area of 646sqm. It has frontages of approximately 12.39m to Wardell Road and Murray Lane and a depth of between approximately 51.89m to 54.10m. 4 The site is developed with two single storey shops on the Wardell Road frontage, a single storey dwellings and a double carport. There is no significant vegetation on the site. 5 Adjoining development to the north and south is detached single storey dwellings. Other development on the eastern side of Wardell Road is a mixture of retail, commercial and associated residential uses. The western side of Wardell Road is generally two-storey retail and commercial development. The opposite side of Murray Lane is developed with two to three storey residential flat buildings. The proposal and its history 6 The application was lodged on 29 September 2004 and was notified to adjoining and nearby residents. Council received three objections which raised concerns relating to loss of privacy, noise, loss of solar access, reduction in market value and loss of amenity. Council refused the application on 7 December 2004. 7 The proposal is to demolish the existing dwelling house and carport, carry out alterations to the existing shops, construct a second storey dwelling above the existing shops and four two-storey dwellings over basement parking for seven cars and two off street parking spaces accessed off Murray Lane. Planning Framework 8 The site enjoys existing use rights and the provisions of planning instruments that would derogate from those rights do not apply. The application is required to be assessed on it merits under s79C of the Environmental Planning and Assessment Act 1979. 9 The site and surrounding development to the north and south is zoned Residential 2(a) under Marrickville Local Environmental Plan 2001 (LEP 2001). Shops and mixed use development are prohibited within the zone. Multi unit housing is not permissible on a site the size of the subject site. 10 Surrounding development along Dudley Street, Ewart Street and on the opposite side of Murray Lane is zoned Residential 2(c), which permits multi unit housing and residential flat buildings but not commercial development. 11 The opposite side of Wardell Road is zoned 3(b) Neighbourhood Business which permits multi unit housing attached to a permissible use, such as commercial. 12 While not applicable, the standards in LEP 2001 are a guide to the likely future context anticipated by the planning controls. It specifies a maximum floor space ratio (FSR) in the 2(c) and 3(b) zone of 1:1 and a maximum height of 10m in the 2(c) zone. No height limit is specified for the 3(b) zone. 13 The LEP does not specify a maximum FSR or height for single dwelling houses in the 2(a) zone. Dual occupancy development is permissible in this zone and the LEP specifies a maximum FSR of 0.6:1 and a maximum height for a second dwelling of 3.6m. Multi unit housing is permissible in the 2(a) zone on sites over 1500sqm with a maximum FSR of 0.7:1 and a maximum height of 7.2m. 14 No development control plans were tendered The issues 15 The Statement of Issues before the Court contained 6 issues. The parties agreed that Issue 1 could be resolved by the submission of a contamination report if the appeal on the other issues were to be upheld. The key remaining issue can be categorised as: