Dale v Blacktown City Council [2007] NSWLEC 810

Land and Environment Court of New South Wales

CITATION : Dale v Blacktown City Council [2007] NSWLEC 810

APPLICANT Robert and Colleen Dale PARTIES : RESPONDENT Blacktown City Council

FILE NUMBER(S) : 10866; 10867; 10868 of 2007

CORAM: Brown C

KEY ISSUES: Development Application :- three separate development applications for the erection of three dwellings - bulk, scale, character - zone objectives

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 10/12/07

EX TEMPORE JUDGMENT DATE : 10 December 2007

APPLICANT Mr J Hancock, agent

LEGAL REPRESENTATIVES: RESPONDENT Mrs M L Taylor, solicitor SOLICITORS Bartier Perry Solicitors

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

10 December 2007

10866, 10867 and 10868 of 2007 Robert and Colleen Dale v Blacktown City Council

JUDGMENT 1 COMMISSIONER: These are three separate but related appeals against the refusal by Blacktown City Council (the council) of three separate development applications for the erection of three dwellings at 3 Waratah Street Rooty Hill (the site). The appeals were heard concurrently.

2 The proceedings were originally set down as a Court Hearing however the parties agreed to amend the hearing to an On Site Hearing. The judgment reflects the relevant parts of the Statement of Facts and Contentions and the findings given at the On Site Hearing. The site 3 The proposal comprises three lots, being: o Lot 3, Sec C, DP 2358 – DA–07–346 (Appeal No 10867 of 2007), o Lot 4, Sec C, DP 2358 – DA–07–344 (Appeal No 10866 of 2007), o Lot 5, Sec C, DP 2358 – DA–07–345 (Appeal No 10868 of 2007). 4 Each lot has a frontage and rear boundary of 7.62 m and a depth of 33.53 m and an area of 252.9 sq m giving a total site area of 758.7 sq m. There is a fall from the Waratah Street frontage to the rear. The site is currently vacant with no significant trees. 5 The surrounding area is residential in character and developed predominantly with single dwellings of a mix of single and two-storey construction. Most dwellings were built in the 1950s and 1960s and consist of brick or clad construction. The proposal 6 The proposal is to erect a dwelling on each of the lots with a setback of around 11.5 m from Waratah Street. A carport is proposed on each of the lots between the dwelling and the street boundary with a setback of 3.4 m from Waratah Street. The carports for Lots 3 and 4 are joined along the common boundary and the carport for Lot 5 is located on the eastern boundary of this lot. Relevant planning controls 7 The site is zoned Residential 2(a) under Blacktown Local Environmental Plan 1998 (LEP 1998). The proposed use is permissible with consent within this zone. Clause 9(3) provides that consent shall not be granted unless the development is generally consistent with one more of the objectives of the plan or one or more of the objectives of the zone. The relevant zone objectives are: (b) to identify the existing residential areas of a predominantly single dwelling character, and to maintain the character by prohibiting residential flat buildings, (c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality, (d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy, 8 Blacktown Development Control Plan 2006 (DCP 2006) applies. Part A - Introduction and General Guidelines and Part C - Development in the Residential Zones apply. Relevantly, cl 3.2, Part C provides for a 7.5 m setback in the existing development localities or lesser where compatible with adjoining residential development.