Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55

Land and Environment Court of New South Wales

CITATION : Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council [2006] NSWLEC 55

APPLICANT: PARTIES : Allan Robert Cooley and Janet Louise Patterson RESPONDENT: City of Sydney Council

FILE NUMBER(S) : 11038 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Consent :- Whether or not the development consent should be modified.

LEGISLATION CITED: South Sydney Local Environmental Plan 1998, (SSLEP) Environmental Planning and Assessment Act 1979, ss79C and 96

CASES CITED: Windy Dropdown Pty Limited v Warringah Council [2000] NSWLEC 240

DATES OF HEARING: 12/01/2006 Section 34 Conference adjourned to allow the applicant to amend the plans. Mention 13/02/2006

DATE OF JUDGMENT: 02/17/2006

APPLICANT: Mr P Tomasetti, barrister, instructed by Mr G L Pignone, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Kemp Strange RESPONDENT: Mr S Kondilios, solicitor, with Ms P Whitford, solicitor SOLICITORS: Maddocks

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

17 February 2006

11038 of 2005 - Allan Robert Cooley and Janet Louise Patterson v City of Sydney Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by the Council of the City of Sydney (the council) of a modification application to alter and add to the building as part of the change of use of an art gallery at Lot 1, DP 59925, being No 9 Darley Street, Darlinghurst. 2 I visited the land in company with the parties on the morning of the s 34-conference and I heard from local residents. 3 I have concluded that the development as shown in the further amended plans showing the proposed modifications of consent are satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979. The approval subject to conditions is appropriate under s 96 of the Act. The land 4 The land is situated on the western side of Darley Street, about 25m north of the intersection with Burton Street and to the north of the National Arts School, East Sydney campus. The land has an 11.175m frontage to Darley Street, and a depth of around 33.5m giving an area of some 374.3m2. Darley and Liverpool Streets intersect around 100m to the north of the land. There is no rear vehicular access to No 9 Darley Street and the premises presently is unoccupied. There are various cross easements for support of adjoining properties. 5 The subject premises is a single storey Victorian terrace with attic located within a predominately residential area. 6 The premises is listed as a heritage item under Schedule 2 of the South Sydney Local Environmental Plan 1998 (Item No 335), and is also within the East Sydney and Darlinghurst Conservation Area (Area No CA18) and is within the vicinity of other heritage items, being Nos 11-15 Darley Street, No 5 Darley Place and Nos 106-112 Burton Street. 7 Nearby in Burton Street are mixed uses such as cafes, retail shops and other commercial uses. 8 The western side of Darley Street is characterised by two, three and four-storey residential buildings. The eastern side of Darley Street is characterised by four and seven-storey residential buildings. 9 The rear of the subject premises abuts No 5 Darley Place, for which the council received another s 96(2) modification application on 13 May 2005. Relevant planning controls South Sydney Local Environmental Plan 1998, (SSLEP) 10 Under the provisions of the SSLEP the land is zoned 2(b) Residential (Medium Density) and the proposal is permissible with consent. Other planning controls · Draft South Sydney Local Environmental Plan 1998 - Amendment No 9, (SSLEP9); · South Sydney Development Control Plan 1997: Urban Design, (SDCPUD); · South Sydney (Heritage Conservation) Development Control Plan 1998, (SSDCPH); · The City of Sydney Access Policy, (Access Policy); · Guidelines for Alterations and Additions to Terraces, (Guidelines); and · City of Sydney Roof Extensions and Dormer Windows Policy 2005, (Dormer Policy). The proposal and its history 11 The first modification of development application No D/2004/81 was lodged under s 96 of the Environmental Planning and Assessment Act 1979, (the 'B" modification) with the respondent council on 20 September 2004, seeking a review of Condition 2 of the development consent (D/2004/81). 12 On 21 April 2004, the council had approved by grant of development consent a change of use to the ground floor of a dwelling to an art gallery by development consent No D/2004/81. 13 The 21 April 2004 approval (development consent No D/2004/81) for the change of use to an art gallery was limited to the following fit-out works: 1) painting of internal walls, 2) installation of lighting, 3) racking system for the storage of paintings, and 4) floor sanding. 14 Condition 2 of the development consent No D/2004/81, related to the fire rating of "…the ceiling separating the gallery from the residential use". Approval was granted for the s 96-modification application by amendment of development consent No D/2004/81 on 24 September 2004 (D/2004/81A). 15 The applicant lodged a second s 96(2) modification application on 13 May 2005 seeking a number of variations to that approved development consent No D/204/81A including: 1) to alter the roof pitch to the rear skillion addition, 2) to raise the wall height of the rear skillion addition by 1400mm, 3) to enclose rear verandah, and 4) internal works under the modification application No D/2004/81B, the present application. The application was lodged after the council advised the applicant that a s.96 application was required to facilitate notification of works and assessment of alleged unauthorised works. 16 The second modification application appeal under s 96(6) of the Act is de novo and the Court is required to consider the modification afresh. 17 The applicant submitted a set of amended plans on 19 May 2005, which formed part of the original notification documentation for this application. During the notification period, the applicant submitted on 31 May 2005, another set of amended plans. As a result, the 31 May 2005 modification application was renotified. 18 Emergency Orders were made under the Environmental Planning & Assessment Act 1979 in April 2005, after it was identified that works (including the demolition and rebuilding of the rear wings, the construction of a new stair and related roof-top structure) were being carried out without development consent. 19 The works the subject of the Emergency Orders were not approved under D/2004/81 or D/2004/81A, however they are included in the s 96(2) modification application D/2004/81B that is the subject of this appeal. 20 The terms of the Emergency Order are to the effect that the Notice of Determination for D/2004/81B did not approve the following works (Condition 1): The following works are not approved and shall be demolished and made good: a. The extension to the roof related to the new attic stair. A new attic stair may be constructed but shall be within the original building envelope. Applicant to submit amended drawings for approval by Council.