McKees Legal Solutions v Leichhardt Council [2009] NSWLEC 1346

Land and Environment Court of New South Wales

CITATION : McKees Legal Solutions v Leichhardt Council [2009] NSWLEC 1346

APPLICANT McKees Legal Solutions PARTIES : RESPONDENT Leichhardt Council

FILE NUMBER(S) : 10385 of 2009

CORAM: Brown C - Sullivan AC

KEY ISSUES: DEVELOPMENT APPLICATION :- subdivision of an existing lot into 2 Torrens Title lots - concept dwelling design - impact on heritage items

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000

CASES CITED: Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353 Parrott v Kiama [2004] NSWLEC 77

DATES OF HEARING: 15, 16 September 2009

DATE OF JUDGMENT: 20 October 2009

APPLICANT Mr G McKee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Ms R McCulloch, solicitor SOLICITORS Pikes Lawyers

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

Brown C with Sullivan AC

20 October 2009

10385 of 2009 McKees Legal Solutions v Leichhardt Council

JUDGMENT 1 COMMISSIONERS: This is an appeal against the refusal by Leichhardt Council (the council) of Development Application D/2009/46 for the subdivision of an existing lot into 2 Torrens Title lots at 24 Pearson Street, Balmain East (the site). 2 The contentions raised by the council relate to whether the proposed subdivision will provide the opportunity for a dwelling that complies with the council's planning controls and in the event a dwelling could be constructed on a new lot created by the subdivision, whether the dwelling would adversely affect the heritage significance of an adjoining heritage item and other nearby heritage items. The site and surrounding area 3 The site is Lot 100 in DP 872400 with a street frontage of 17.39 m and side boundaries of approximately 49 m giving a total site area of 819.1 sq m. The northern part of the site has a slight slope towards the south to a sandstone cliff face located around 36 m from the northern boundary. South of the cliff face, the land continues to slope gradually towards and an irregular dry-packed stone retaining wall up to 2 m in height and located about 6 m south of the sandstone cliff face. The retaining wall extends east of a sandstone rock face/outcrop, which is located in the south western portion of the site. South of the retaining wall, the ground surface continues to gradually slope towards another retaining wall located approximately 4 m away, along the southern boundary of the site. This retaining wall is approximately 4 m in height and located adjacent to the southern boundary, shared with properties in William Street. Expansive views are available of Johnstons Bay towards Pyrmont from the site. 4 The northern part of the site, at the Pearson Street frontage, is occupied by a single storey Victorian gothic cottage with attic and is called "Rothesay". It is identified by the council as a heritage item. Rothesay is currently unoccupied and in a poor state of repair. The southern part of the site, contains only retaining walls and no structures. Crossing the site an east-west direction is a rock ledge revealing previous quarrying activity and which forms part of the historic character of the area. Rothsay is situated above this rock ledge and was built after quarrying ceased.