Liakopoulos v Sutherland SC [2004] NSWLEC 750

Land and Environment Court of New South Wales

CITATION : Liakopoulos v Sutherland SC [2004] NSWLEC 750 APPLICANT Con Liakopoulos PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10838 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Dwelling house - Floor Space Ratio - Streetscape - excavation - application of planning principle

Sutherland Shire Local Environmental Plan 2000 LEGISLATION CITED: Sutherland Development Control Plan 2000 State Environmental Planning Policy No. 1 - Development Standards Environmental Planning and Assessment Act 1979 CASES CITED: Drivas v Canada Bay [2004] NSWLEC 111; Leighton Properties v North Sydney [1998] 98 LGERA 389 DATES OF HEARING: 15/12/2004 and 22/12/2004 EX TEMPORE 12/23/2004 JUDGMENT DATE :

APPLICANT Mr C McEwen SC Instructed by Mavrakis & Associates

LEGAL REPRESENTATIVES: RESPONDENT Mr C Mathieson Solicitor of Sutherland Shire Council

JUDGMENT: - 7 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

23 December 2004

10838 of 2004 Con Liakopoulos v Sutherland Shire Council

JUDGMENT 1 This appeal relates to development application number 04/0328 which is for the demolition of an existing dwelling house and the erection of a new two-storey dwelling with basement garage at 10 Lucas Street. Cronulla. The appeal was dealt with as an on-site hearing. 2 The rectangular shaped site has a width of 12.19 m and an area of approximately 440 sq m. It is presently occupied by a single story dwelling house. The locality is generally characterised by single and two-storey dwelling houses. 3 The site is zoned Residential 2(a1) and is in a Foreshore Scenic Protection Area under Sutherland Shire Local Environmental Plan 2000 ("LEP 2000"). The proposal is permissible with development consent. 4 The remaining issues in the case comprise streetscape, setbacks, floor space ratio and the possible impacts of the proposed swimming pool on the neighbours. 5 Dealing firstly with the swimming pool, taking into account that it is a lap pool having a somewhat limited usage and the proposed masonry boundary fence I do not accept that any noise impacts from this pool would be such as to acquire its deletion or relocation. 6 In relation to streetscape, the matters of concern to the respondent involve the bulk and scale of the building and its presentation to the street. The particular aspect of the street presentation said to be unacceptable involves the contention that the building will appear as being in excess of two storeys. This appearance results from the presentation of the garage doors to the street. The ramped driveway enables the garage doors and thus the basement to be seen in conjunction with the two stories of building above. Otherwise the basement is slightly less than 1.5 m above ground level. Of further concern here is the parapet height despite the fact that the building complies with the 9 m building height limit and the 7.2 m ceiling height limit. 7 Clause 34(1)(d) of LEP 2000 requires that buildings in residential zones (other than the 2(c) zone) should maintain a maximum two storey appearance. In this regard I accept the applicant's submission that in terms of the height requirements in LEP 2000, including the provision in sub cl. 2(e) which sets out the maximum height above ground level for basement car parking, that these matters indicate that compliance with them would result in a two storey building. 8 I accept that a development of the kind here proposed is a reasonable form of development resulting from the application of the relevant standards. However this proposal, when viewed from directly in front of the garage, will appear as being more than two stories and this appearance needs to be mitigated. As I pointed out during the hearing the effect of the garage doors could be significantly mitigated by the provision of appropriate fencing along the boundaries of the site and the retaining walls associated with the ramp.