Foster v Hurstville City Council [2006] NSWLEC 53

Land and Environment Court of New South Wales

CITATION : Foster v Hurstville City Council [2006] NSWLEC 53

APPLICANT George and Marie Foster PARTIES : RESPONDENT Hurstville City Council

FILE NUMBER(S) : 11013 of 2005

CORAM: Hussey C

KEY ISSUES: Development Application :- Use of dual olccupancy - overlooking - loss of privacy - privacy screen

LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Development Control Plan No. 11

CASES CITED: PDF (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41

DATES OF HEARING: 01/12/2005, 25/01/2006 and 01/02/2006

EX TEMPORE JUDGMENT DATE : 02/01/2006

APPLICANT Mr D Wilson, barrister Instructed by: Mr J Hannaford LEGAL REPRESENTATIVES: Of Hannaford Lawyers RESPONDENT Mr J Hewitt, solicitor SOLICITORS Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

1 February 2006

11013 of 2005 George and Marie Foster v Hurstville City Council

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. 1 This appeal was lodged against council's refusal of a development application proposing the continuing use of an existing detached dual occupancy dwelling situated at 10A Ogilvy Street, Peakhurst. The lot is a battleaxe configuration. 2 The original dual occupancy dwelling was approved in 1990 on the basis that: "the consent is valid for a period of five years from the date of council's letter of consent. A further application is required prior to the expiration of the five year period for any extension of time of this approval." A number of other conditions of consent were also imposed. However, no further application was made for an extension of time and subsequently, pursuant to some complaints about the expiry of the consent action, was taken in order to vacate the use of the dual occupancy dwelling. 3 In response to this, a s 96 modification application was made to vary the original five year limitation on the use of the dual occupancy and the appeal arises from this. Planning controls 4 The relevant planning controls include: (i) Hurstville LEP 1994 : under which the dual occupancy is permissible and the relevant clauses include cll 11A(3), 11A(4) and 11A(5) have some relevance