Baillie v Leichhardt Council [2009] NSWLEC 1244

Land and Environment Court of New South Wales

CITATION : Baillie v Leichhardt Council [2009] NSWLEC 1244

APPLICANT Peter Baillie PARTIES : RESPONDENT Leichhardt Council

FILE NUMBER(S) : 11275 of 2008

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to the existing cottage and construction of a new two-storey dwelling Impact on streetscape and residential amenity

Land and Environment Court Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan Plan 2000 Leichhardt Development Control Plan 2000

DATES OF HEARING: 16 March 2009, 16 April 2009, 6 May 2009

EX TEMPORE JUDGMENT DATE : 6 May 2009

APPLICANT Mr P Rigg, solicitor of Deacons LEGAL REPRESENTATIVES: RESPONDENT Ms R Mc,Culloch, solicitor of Pikes

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

6 May 2009

11275 of 2008 Peter Baillie v Leichhardt Council

JUDGMENT 1 This is an appeal against the refusal by Leichhardt Council (the council) of development application (D/2008/360) for alterations and additions to the existing cottage and construction of a new two-storey dwelling at 9 Moore Street, Rozelle (the site). 2 The site, its locality, the history of the application and the planning controls are in the amended Statement of Facts and Contentions. 3 A conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) commenced on site on 16 March 2009 and was adjourned for amended plans and further information. The s 34 conference resumed on 16 April 2009 where the Court heard evidence on behalf of the adjoining owner at 5 Moore Street, Rozelle. The Court also heard expert evidence for the council from Ms D Laidlaw, planner, and Mr R Staas, heritage architect, and for the applicant from Mr B Lay, architect/planner/heritage consultant. 4 In response to the concerns raised, the applicant sought leave to rely on further amended plans. The further amended plans delete the second storey curved addition from the original cottage (unit 1), which is to be now two bedrooms plus a study. The curved second storey addition proposed for the new dwelling facing Pine Street (unit 2) has been deleted and a second storey containing one bedroom is now proposed. The second storey is set back further from 5 Moore Street. Only one car space is now proposed for both units and the carport over this car space is deleted. Subdivision of the allotments is no longer proposed. 5 The amended plans address the concerns of the experts, but the owner of 5 Moore Street maintained concerns in relation to solar access to north-facing windows and the rear garden, the outlook from their back garden and the loss of the landscape strip as well as impacts of noise and overlooking. 6 The hearing reconvened on 6 May 2009. The parties did not reach agreement and the s 34 conciliation conference was terminated. The parties consented to me disposing of the proceedings under s 34(4)(b) of the Court Act. The parties also agreed that the evidence from the conciliation conference including the site view, the objectors and expert evidence were admissible pursuant to s 34(12). 7 The key dispute between the parties is that the proposal does not comply with cl B1.2 in Leichhardt Development Control Plan 2000 (the DCP) and results in adverse amenity impacts, particularly overshadowing of 5 Moore Street. 8 No further evidence was called in relation to the amended plans. The parties agreed that the plans had addressed the concerns of the experts, including those in relation to the Building Location Zone (BLZ) in cl B1.2 of the DCP and overshadowing.