Collins & Anor v Leichhardt Municipal Council [2010] NSWLEC 1145

Land and Environment Court of New South Wales

CITATION : Collins & Anor v Leichhardt Municipal Council [2010] NSWLEC 1145

APPLICANT John and Kathy Collins PARTIES :

RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 10139 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT CONSENT :- s 96 application to delete condition. Impact of two storey rear extension on adjoining property and park.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Leichhardt Local Environmental Plan 2000 Land and Environment Court Act 1979

DATES OF HEARING: 20 May 2010

EX TEMPORE JUDGMENT DATE : 20 May 2010

APPLICANT Mr P Vergotis, solicitor of DLA Phillips Fox LEGAL REPRESENTATIVES:

RESPONDENT Ms J Walsh, solicitor of Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

20 May 2010

10139 of 2010 Collins & Anor v Leichhardt Municipal Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by Leichhardt Municipal Council (council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (D/2008/353) for alterations and additions to an existing single storey house at 12 Waratah Street, Leichhardt (the site). 2 Council has subsequently approved the s 96 application however condition 2 remains in dispute. Condition 2 requires the deletion of the two storey section at the rear of the house that provides a void over the ground floor living/dining area. 3 The applicant's principle position is the deletion of condition 2 but as a secondary position would accept a reduction in the area to be deleted. 4 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions and Statement of Facts and Contentions in reply. 5 A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) was held on site. The Court heard from the adjoining neighbours at 14 Waratah Street, whose principal concerns were the impact of the bulk of the proposal when viewed from their property, particularly their rear courtyard and the reduction in solar access and daylight that will occur. They considered that the development consent already impacted on their amenity and that the proposal would further exacerbate this. 6 The Court heard planning evidence from the Ms D Laidlaw, for council, and Mr S Layman, for the applicant. 7 The parties did not reach agreement and the s 34 conciliation conference was terminated. The parties agreed to me disposing the appeal under s 34(4)(b)(i) and that the evidence from the conciliation conference could be considered in the hearing. 8 The key difference in opinion between the planners is the reasonableness of the proposal and its impacts on the adjoining property at 14 Waratah Street and the park. 9 Mr Layman considers that the proposal will provide greater amenity for the occupants of the dwelling and assist in providing a reasonable level of the accommodation on a small site. He acknowledges that the approved development does not comply with the floor space ratio (FSR) and the landscape area controls in Leichhardt Local Environmental Plan 2000 (LEP 2000) or the side setback controls in Development Control Plan 2000 (DCP 2000). However, he states the proposal does not increase this non-compliance. In his opinion, the increased side setback of the upper floor and the reduction in ridge height proposed in the s 96 application will provide greater compliance and reduce impacts on 14 Waratah Street, when compared to the approved development. 10 Mr Layman considers that the proposal complies with the building location zone (BLZ) in DCP 2000. He refers to other properties in the street, including the adjoining property at 10 Waratah Street, which is two storeys at the rear, as indicative that the form of development that is appropriate when viewed from the park and from adjoining properties and consistent with the desired future character envisage for the area in DCP 2000. 11 In Mr Layman's opinion the proposal will have no adverse impact from bulk overshadowing or privacy on the adjoining property or the park and is acceptable. 12 Ms Laidlaw acknowledges that the proposal does not add to the floor space of the building, because it is a void. However, it presents a two storey element at the rear that will add to the bulk of the building when viewed from 14 Waratah Street and the park and result in greater impacts than the single storey element proposed by the condition 2. 13 In Ms Laidlaw's opinion the development approval has already permitted a reasonable development on the site and has balanced the amenity of the occupants against the impacts on the neighbours and the park. This development approval has already allowed variations to the controls in LEP 2000 and DCP 2000. In her opinion, the proposal does not meet the BLZ or the side setback controls in the DCP 2000 and the two storey element over the void is unwarranted. 14 In Ms Laidlaw's opinion the ridge could be increased to achieve a greater floor to ceiling height for bedroom 4 and the kitchen/dining/living area, which would address any amenity issues with these rooms. 15 Ms Laidlaw stated that the street is predominantly single storey. The other two storey developments in the street were approved prior to the current controls and are not characteristic of the street and are contrary to the desired future character of the Piperston Distinctive Character Neighbourhood.