Michels v Sutherland Shire Council [2007] NSWLEC 391

Land and Environment Court of New South Wales

CITATION : Michels v Sutherland Shire Council [2007] NSWLEC 391

APPLICANT Jix Anthony Michels aka John Michels PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 10289 of 2007

CORAM: Tuor C

KEY ISSUES: Section 96 Application :- impact of height and bulk of works consructed without consent consistency with objectives of height control and zone objectives

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula

DATES OF HEARING: 22/06/2007

EX TEMPORE JUDGMENT DATE : 22 June 2007

APPLICANT Mr J Burrell, solicitor LEGAL REPRESENTATIVES: of Burrell Solicitors RESPONDENT Mr Mathieson, solicitor of Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

22 June 2007

10289 of 2007 Jix Anthony Michels aka John Michels v Sutherland Shire Council

JUDGMENT 1 COMMISSIONER: This is an appeal against a refusal by Sutherland Shire Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (00/1907) to construct a three-storey dwelling at 102 Prince Charles Parade, Kurnell (the site). 2 The works the subject of the s. 96 application have been constructed without consent. 3 The parties agreed that the appeal could be converted to a binding s. 34 Conference. 4 The site, its context, the history of the application, and the statutory controls are in the Statement of Basic Facts. The Statement of Issues contains 3 issues, the key issue being whether the proposal has an unacceptable impact on the streetscape. 5 The Court heard expert evidence from Mr. Mark Adamson, planner for the council, and Mr. John Cox, planner for the applicant. 6 Mr. Adamson stated that the proposal did not meet Objective (a) for the Residential 2(a) zone under Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula (SREP 17) as it does not maintain and enhance the existing village character of the residential areas of Kurnell. He considered the predominant character to be one to two storey cottages. In his opinion, the east-west gable increased the bulk of the building and added to its three storey appearance. It did not meet the objectives for height in cl 10.3 of Development Control Plan - Dwelling Houses in 2(e) Residential Zones and Kurnell (the DCP). Mr. Adamson considered the length of the gable should be reduced by approximately 1 metre to mitigate its impact. 7 Mr. Cox considered the bulk and height of the proposal met the relevant objectives for the zone in SREP17. He stated that the proposal complies with the wall height and overall height controls and met the objectives in cl 10.3 of the DCP. 8 The objectives in cl 10.3 in dispute are: