Lam D v Hurstville City Council [2007] NSWLEC 602

Land and Environment Court of New South Wales

CITATION : Lam D v Hurstville City Council [2007] NSWLEC 602

APPLICANT: PARTIES : Donald Lam RESPONDENT: Hurstville City Council

FILE NUMBER(S) : 10755 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Breach of covenant Amenity impacts

LEGISLATION CITED: Hurstville Local Environmental Plan 1994, (HLEP) Environmental Planning and Assessment Act 1979, ss97C and 97

DATES OF HEARING: 19 September 2007

EX TEMPORE JUDGMENT DATE : 19 September 2007

APPLICANT: Mr O Stichter, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Otto Stichter & Associates RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

19 September 2007

10755 of 2007 - Donald Lam v Hurstville City Council

JUDGMENT

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hurstville City Council (the council) to refuse a development application to lift a condition relating a covenant under Section 88B of the Conveyancing Act 1919 and to permit a change of use from a shop to a residence at Lot 1 of SP 71364, known as Unit 1/ 47 Croydon Road, Hurstville. 2 At the rear of the land is a two-storey dwelling on Lot 2 of SP 71364, known as Unit 2/ 47 Croydon Road, Hurstville. 3 I visited the land in company with the parties on the morning of the Section 34 Conference. The parties agreed that under s 34(3)(a) of the Land and Environment Court Act 1979, it would be acceptable for the commissioner to dispose of the hearing in accordance with the decision reached. 4 I have concluded that after considering the issues, consent may be granted and Condition 7 of the original strata plan will be varied in consequence of the findings below. The land 5 The land comprising Lot 1 in the strata plan is situated on the western corner of Croydon and Queens Roads. It is rectangular in shape with a frontage to Croydon Road of 13.9m, a depth of 24.6m and an area of some 341.3m2. Erected on the land is a single-storey brick shop with attached awning on the eastern side and an elevated open car space with balustrades on the southern side of the land. 6 The land falls from the rear boundary to the front about 0.7m and there is no significant vegetation found on the land. Landscaped area is provided in form of a lawn and hard pavement. The covenant 7 The subject land, Lot 1 of SP 71364 is burdened by a covenant under Section 88B, which states: The registered proprietor shall not use the lot for residential purposes at any time. 8 This covenant was reflected in Condition 7 of the original strata subdivision that was imposed on the development consent of a strata subdivision. Relevant planning controls Hurstville Local Environmental Plan 1994, (HLEP) 9 Under the provisions of the HLEP land is zoned residential and the proposal is permissible with consent. However, the existing shop is not permissible in that zone, relies upon existing use rights, (EUR) under ss 106 and 107 of the Environmental and Planning Assessment Act 1979. 10 Other planning controls include: · Development Control Plan Number 2 - Car Parking. · Development Control Number 11 - Dual Occupancy Housing. · Development Control Plan Number 18 - Crime Prevention Through Environmental Design. · Development Control Plan Number 22 - Energy Efficiency. · IRDC - Interim Residential Development Code. 11 The council has consolidated all development control plans into two documents, namely, Development Control Plans Nos 1 and 2 that came into force on 23 April 2007, after the application was lodged. The proposal and its history 12 Development application No 2006/DA-577 was lodged with the respondent council on 11 December 2006, to change the use of existing storerooms of a single-storey brick shop to a residence. Also, the proposal includes deletion of Condition 7 that would require a modification of the Section 88B instrument. 13 The proposed change of use would comprises two (2) bedrooms, family room, dining room, meals area, bathroom and garbage area adjacent to an existing car space to the rear of the land. 14 No internal structural works are proposed. Council officers have inspected the premises and noted that all the uses specified on the submitted plans currently exist (i.e kitchen, meals and bathroom), with the exception of an external new garbage area to the rear. 15 Previous development applications include: · 1999/DA-019; for the erection of a single-storey dual occupancy that was withdrawn by a previous applicant. · 1999/DA-374; approved, and included the demolition of the residential component of the shop and the erection of a new two-storey dwelling house in the rear portion of the earlier parcel of land (now a separate strata lot). · 2002/DA-413; application for Torrens Title subdivision was refused based on the fact that 1999/DA-374 was not approved for a dual occupancy, and does not meet the requirement of a minimum of 450m2 for each lot. · 2003/DA-139; strata subdivision approved with conditions to satisfy all conditions of 1999/DA-374 and rear part of the shop was not to be used for residential purposes. A restriction as to user under s 88B, required Lot 1 not to be used for residential purposes. Notification 16 The application was notified for twenty-one days, from 29 December 2006 to 22 January 2007 to nearby owners and occupants and the council received no submission in relation to the proposal. The council's decision 17 By notice dated 06 June 2007, the council refused the application for reasons, that the proposal is burdened by a covenant under Section 88B of the Conveyancing Act 1919, and the non-compliance with the council's Interim Residential Development Code. 18 Council officers met with one of owners of site on 17 March 2007, and on 19 March 2007, the council sent a letter to the applicant seeking additional information in relation to health, building, history of the shop and whether the residence is to be used by the same occupant. 19 The applicant submitted a BASIX certificate on 03 April 2007. The hearing 20 The appeal was filed on 08 August 2007. 21 At the conference the court heard evidence on behalf of the respondent council from: · Mr Graeme George Young, Manager Development Control; · Mr Kevin Kim, Development Assessment Officer. The contentions 22 On 31 August 2007 the council filed a statement of contentions. a) The nature and extent of non-compliances with the car parking provisions and Interim Residential Development Code are genuinely in dispute. b) The proposed residence will significantly reduce the amenity for the occupants of the dwelling. The shop storage area has direct access to the yard area of the proposed dwelling and the shop will have need to access the recycling area which will impact on the occupant's privacy. In all likelihood deliveries will take place through the storeroom and again this will impact on the privacy of intended residents. c) The occupants will be subject to the odours and smells from the communal garbage area situated in close proximity to their living areas. The proposal does not provide an internal connection between the residence and the shop and the possibility exists that it will be used as a separate dwelling, independent of the shop. In view of this, the proposal does not demonstrate the residence being ancillary to the existing shop nor provide any adequate justification to extinguish the restriction on use on the current Section 88B instrument. d) The use of part of the site as a dwelling is inconsistent with the earlier consent and with the site density controls of the Interim Residential Development Code and Hurstville Local Environmental Plan 1994 as amended. e) 'Over development' of the site, will set an unfavourable precedent in the locality. In comparison to the established and desired development in the vicinity of the site, it is not viable to accommodate a dwelling on the site. 23 The council noted that the original land area was 674.6m2. It was subdivided into two separate allotments one for the two-storey dwelling house and the other for the existing shop and storage area. 24 The council also noted that the existing shop consists of a floor area of 123.94m2, including retail area and attached storeroom. The shop has the benefit of 'existing use rights'. It is reasonable to exclude the floor area of the shop from the site area, which is unavailable to the proposed dwelling. 25 A minimum of 315m2 in area is required for residential developments to ensure that adequate areas are provided as useable private open space and useable landscaped open space for outdoor activities, solar access and to create a pleasant and safe living environment that is environmentally responsive. The council considers that it is unreasonable to overrule any non-compliances of the proposal resulting from its 'existing use rights' of the shop. 26 The following emerged as the salient issues: · Covenant; and · Amenity.