AK6 Pty Limited v Leichhardt City Council [2009] NSWLEC 1427

Land and Environment Court of New South Wales

CITATION : AK6 Pty Limited v Leichhardt City Council [2009] NSWLEC 1427

APPLICANT AK6 Pty Limited PARTIES : RESPONDENT Leichhardt City Council

FILE NUMBER(S) : 10650 of 2009, 10655 of 2009 and 10656 of 2009

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- On site car parking, pergola and carport

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 11 December 2009

EX TEMPORE JUDGMENT DATE : 11 December 2009

APPLICANT Ms A Kavanagh (agent)

LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh (solicitor) SOLICITOR Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

11 December 2009

10650 of 2009 AK6 Pty Limited v Leichhardt City Council 10655 of 2009 10656 of 2009 This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 In August 2007, the Leichhardt City Council approved a four-lot subdivision of lots 1 and 2, DP 772288, at 7 Alexander Street, Balmain. 2 The applicant in these proceedings subsequently lodged three development applications with the council for the erection of a single dwelling house on each of lots 101, 102 and 103 that resulted from the approved subdivision. Each of those development applications included a single uncovered car space in the front building setback area with access off Alexander Street. The three applications were approved, but the applications for lots 102 and 103 had the car spaces deleted. 3 The applicant has now lodged three further development applications for each of the three lots, seeking the construction of a carport and pergola for lot 101 and seeking a single off-street car parking space plus pergola and carport for lots 102 and 103. 4 These development applications were advertised and objections were received expressing concerns mainly regarding the loss of on-street car parking and the visual impacts associated with the three proposed carport and pergola structures. The council refused the development application for lot 101 for reasons relating to the visual impacts associated with the car parking arrangement, the carports and pergola structures. The development applications for lots 102 and 103 were refused for reasons of loss of on-street car parking. 5 The applicant subsequently appealed to this Court in relation to these three refusals. The contentions contained in the statement of facts and contentions identifies in essence two concerns, the loss of on-street car parking and the visual impact of the carport and pergola structures. 6 These appeals were the subject of a s 34 conciliation conference on 5 November 2009. That conference was unsuccessful and was consequently terminated. 7 The applicant in consultation with the council has now decided not to press that part of each of the applications that seeks consent for the pergolas and carports, hence the proposals now effectively only involve the provision of car parking spaces for lots 102 and 103. 8 Each of the three development applications was subject to a detailed assessment by a council town planning officer and these reports consider in some detail the issue of car parking in those reports. It is there noted that car parking will not significantly affect the streetscape and that there are no heritage aspects that arise, taking into account that the site is situated in a conservation area. Because the provision of the two additional crossovers from Alexander Street (that provide access to the two additional parking spaces) will result in the loss of one on-street parking space, this was a matter of concern to the council. However the officer's report notes that there will be a net increase of one car parking space and a resultant reduced demand for on-street parking from the occupants of the new dwellings. 9 Taking these matters into account, together with the decision to omit the carport and pergola structures, the parties have entered into consent orders and now invite the Court to make those orders. Relevantly, the objectors to the applications have been notified and those objectors have indicated that they do not wish to be heard. 10 I have now reviewed the statement of facts and contentions and the council officer's reports and am satisfied that the consideration and conclusions in those reports can be supported and that, in effect, the concerns of the residents are answered. There are now no matters in dispute between the parties that require the determination of the Court. 11 Finally, by reference to the council officer's reports, I am satisfied that the relevant s 79C assessment (of the Environmental Planning & Assessment Act 1979), has been carried out and that there is no statutory impediment to me granting the consent as sought. Therefore, by consent, I make the orders as sought with the additional order in each case, providing that Exhibit 1, the consent orders, is retained. Orders 12 The orders of the Court for No. 10650 of 2009 are: 1. The appeal is upheld. 2. Development consent is granted to development application D/2009/20 for off street parking at proposed Lot 101 in part Lots 1 and 2, DP 772288 and Lots 1 and 2 in DP 112877, 7 Alexander Street, Balmain subject to conditions in Annexure A hereto. 3. Exhibit 1 is retained. Orders 13 The orders of the Court for No. 10655 of 2009 are: 1. The appeal is upheld. 2. Development consent is granted to development application D/200/21 for off street parking at proposed Lot 102 in part Lots 1 and 2, DP 772288 and Lots 1 and 2 in DP 112877, 7 Alexander Street, Balmain subject to conditions in Annexure B hereto. 3. Exhibit 1 is retained. Orders 14 The orders of the Court for 10656 of 2009 are: 1. The appeal is upheld. 2. Development consent is granted to development application D/2009/22 for off street parking at proposed Lot 103 in part Lots 1 and 2, DP 772288 and Lots 1 and 2 in DP 112877, 7 Alexander Street, Balmain subject to conditions in Annexure C hereto. 3. Exhibit 1 is retained.