Pikoulas v Canterbury City Council [2007] NSWLEC 747

Land and Environment Court of New South Wales

CITATION : Pikoulas v Canterbury City Council [2007] NSWLEC 747

APPLICANT Aristomenis Pikoulas PARTIES : RESPONDENT Canterbury City Council

FILE NUMBER(S) : 10619 of 2007

CORAM: Preston CJ

KEY ISSUES: Appeal :- Section 56A of the Land and Environment Court Act 1979 - Commissioner decision rejecting application to modify a development consent - misdirection as to application

Environmental Planning and Assessment Act 1979, s 96(1), s 96(1A), s 96(6) LEGISLATION CITED: Land and Environment Court Act 1979, s 56A Local Government Act 1919

CASES CITED: Pikoulas v Canterbury City Council [2007] NSWLEC 648

DATES OF HEARING: 9 November 2007

EX TEMPORE JUDGMENT DATE : 9 November 2007

APPLICANT Mr A Pikoulas (In Person)

LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird (Solicitor) SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

9 NOVEMBER 2007

10619 OF 2007

ARISTOMENIS PIKOULAS V CANTERBURY CITY COUNCIL

JUDGMENT

1 HIS HONOUR: Mr Pikoulas appeals under s.56A of the Land and Environment Court Act 1979 against the decision of a Commissioner of this Court to dismiss his appeal under s.96(6) of the Environmental Planning and Assessment Act 1979. Such an appeal under s 56A is confined to questions of law only but before dealing with the grounds of Mr Pikoulas' appeal, I will outline the circumstances of the appeal under s.96(6) of the Environmental Planning and Assessment Act. 2 Mr Pikoulas owns and resides at 17 Crinan Street, Hurlstone Park. Erected on the land are two buildings separated in the middle by an open courtyard. In the front of the allotment fronting Crinan Street is a two-storey building comprising a shop and a dwelling. I will refer to this building as the shop building. On the ground floor of the shop building is, going from front to back, the shop, a dining room and a kitchen, with a toilet and shower and a laundry and toilet outside in the open courtyard. The stairs to the first floor are also located in this courtyard area at the rear of the ground floor of the building. On the first floor, again going from front to back, is a living room, toilets, shower, study and two bedrooms and a balcony which serves in part as the landing for the rear stairs. 3 At the rear of the allotment, past the open courtyard, is another building. This building started its life as a single storey garage but after approval of a development consent for alterations to it, became a two-storey building (with the first floor being split with a mezzanine level), still with the garage on the ground floor but with a games room and bar on the first floor and a bedroom and bathroom on the mezzanine floor. I will refer to this building as the garage building. 4 The origin of the appeal to this Court under s.96(6) of the Environmental Planning and Assessment Act is the application Mr Pikoulas lodged with Canterbury City Council on 22 August 2006 under s.96(1A) of the Environmental Planning and Assessment Act to modify the development consent that authorised the additions to the garage building to which I have earlier referred. That development consent was number R8256/96. It approved the erection on top of the existing garage of, on the first floor, a games room with a bar area, and on a mezzanine floor above, a bedroom and bathroom. The development consent was subject to conditions, one of which was condition 4 which provided as follows: "4. The rear building being used in conjunction with the existing dwelling and not as a separate dwelling. No kitchen facilities being provided within the proposed additions." 5 Mr Pikoulas' application under s.96(1A) proposed to change the use of the first floor of the garage building in, firstly, the area described as "games room" to "living/dining" and, secondly, the area described as "bar" to "kitchen". The terms of the s.96(1A) application are important. Mr Pikoulas stated in the application as follows: "I desire modification of DA457/97 to change the compart (GAMES ROOM) to LIVING/DINING ROOM and the compart (BAR) to kitchen as this proposal for food facilities of service." 6 It can be seen that the s.96(1A) application did not expressly request modification of condition 4 of the development consent. However, by reason of the application seeking to substitute a kitchen for the bar, the application must impliedly seek to modify by deletion the second sentence of condition 4. However, it is not implied that the application seeks to modify the first sentence of condition 4. The change in the designation of the areas on the first floor of the garage building as sought does not necessarily demand that the garage building not be used in conjunction with the shop building. 7 The Council refused the s.96(1A) application on 9 November 2006. In the Notice of Determination dated 15 November 2006, the Council gave two reasons: "1. The separate occupation of the dwelling at the rear of the site will require additional off street parking. The proposal does not demonstrate that the site can accommodate adequate and accessible parking for the site in accordance with the requirements of Council's Car Parking Code – DCP 20.