Brookes v Hurstville City Council [2010] NSWLEC 1021

Land and Environment Court of New South Wales

CITATION : Brookes v Hurstville City Council [2010] NSWLEC 1021

APPLICANT Edward and Jon Brookes PARTIES : RESPONDENT Hurstville City Council

FILE NUMBER(S) : 10713 of 2009

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- Residential flat building density, open space, building envelop and setback controls

Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Buildings LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Development Control Plan No 1 Residential Flat Design Code

DATES OF HEARING: 21 and 22 December 2009

DATE OF JUDGMENT: 9 February 2010

APPLICANT Mr D Thomas, solicitor of Wellings Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Deacons Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

9 February 2010

10713 of 2009 Brookes v Hurstville City Council

JUDGMENT 1 This is an appeal against the refusal by Hurstville City Council (the council) of a development application (09/DA-39) to demolish two existing dwellings and construct a 3-storey residential flat building with eight units and basement parking for 14 cars at 22B and 24 Macquarie Place, Mortdale (the site). 2 The main issue between the parties is whether the proposal is an overdevelopment of the site due to the non compliance with the density, open space and setback controls in Hurstville Development Control Plan No 1 (DCP 1). Site and context 3 The site is located on the northern side of Macquarie Place near the corner of The Strand. It comprises two lots with a combined area of 720.6sqm, a street frontage of 20.12m and a depth of 35.81m. Each lot is developed with a single storey house. 4 The site adjoins residential flat buildings and Mortdale RSL Club is opposite the site. The surrounding area is characterised by residential flat buildings and single storey houses. Mortdale shopping centre is located approximately 200m to the east of the site. Planning controls 5 The site is in zone 2 Residential under Hurstville Local Environmental Plan 1994 (LEP 1994). The proposal is permissible with consent. 6 Clause 8(3) of LEP 1994 provides that: