Land and Environment Court of New South Wales CITATION : Sekendek v Leichhardt Council [2007] NSWLEC 711 APPLICANT Douglas Sekendek PARTIES : RESPONDENT Leichhardt Council FILE NUMBER(S) : 10829 of 2007 and 10830 of 2007 CORAM: Tuor C Development Consent - Section 96 Modification :- works constructed without approval KEY ISSUES: order issued by Council landscape area and floor space ratio, car access and impact on streetscape and conservation area LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 DATES OF HEARING: 17/10/2007 EX TEMPORE JUDGMENT DATE : 17 October 2007 APPLICANT Mr S. Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Ms R. McCulloch, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 17 October 2007 10829 of 2007 Douglas Sekendek v Leichhardt Council 10830 of 2007 JUDGMENT 1 Appeal No. 10829 of 2007 is against the refusal by Leichhardt Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent No. D/2001/320 for the demolition of an existing house and construction of a new dwelling (the development consent) at 9 Hanover Street, Rozelle (the site). 2 The s 96 application seeks approval for works that have been constructed without approval that are inconsistent with the development consent. 3 Appeal No. 10830 of 2007 is against Order EPA/2007/247 issued by the council pursuant to s 121B of the Act, which requires the applicant to comply with the development consent. 4 The parties agreed that the appeals could be held together. 5 The site, its context, the history of the application and the planning controls are set out in the Statement of Facts and Contentions. 6 Council did not raise issue with a number of the proposed amendments but was concerned that: + The proposal does not comply with the floor space ratio (FSR) and landscape area development standards in Leichhardt Local Environmental Plan 2000 (LEP 2000). Council considered the out buildings should not be approved. + The ground clearance and head room of the roller door providing car access off Collins Street, do not comply with AS2890.1:2004. Council did not object to car parking being provided on site or to the loss of one on street parking space to provide car access. + The windows on the Collins Street façade and the fence on Hanover Street have an adverse impact on the streetscape and conservation area. Council proposed amendments to the windows and the fence to achieve a more appropriate relationship. 7 No expert evidence was provided. The Court heard evidence on site from Mr D. Landa, a nearby resident, who supported the amendments. The owner of 2 Murdoch Street raised concerns about privacy impacts, the height of the rear fence, the inadequacy of the landscaping and the removal of a significant Pine Tree which he considered resulted in a loss of amenity to his property. Findings Landscape area 8 The key issue in the proceedings is the extent of landscape area, particularly deep soil planting. LEP 2000 requires a landscape area of 40 percent of the site. The development consent complied with this standard. The amendments resulted in 23 percent landscape area, none of which is deep soil. 9 The rear courtyard that adjoins 2 Murdoch Street is paved and used for parking. A planter box adjoins the rear boundary but is built over the concrete slab. I accept the council and the owner of 2 Murdoch Street concerns that this provides limited opportunity for landscaping to soften and reduce the impacts of the development and provide deep soil for planting and runoff. The provision of no deep soil planting does not meet the objectives of the standard and there is no evidence that justifies the extent of non compliance. 10 Greater compliance can better be achieved by the removal of the concrete slab and the replacement with a permeable surface also suitable for parking. The planter box should be rebuilt to remove the slab and enable plants to access the water table and deep soil. Conditions to this effect have been agreed between the parties. Floor space ratio 11 LEP 2000 permits a maximum FSR of 0.7:1. The development consent approved 0.8:1. The additional out buildings increase the FSR to 0.86:1 (13.64 sq m). The out buildings do not add on a material way to the bulk of the development and, with the amendments to the landscape area, are acceptable, despite the non compliance with the standard. Car access 12 The roller door in part does note meet AS 2890.1.2004. The applicant has agreed to increase the headroom to ensure compliance as part of the works to be undertaken to provide a driveway off Collins Street. 13 Following the hearing, the parties disagreed whether condition 19A(a) was required which states that: 19A. The applicant shall bear the cost of the following works: a) The power pole adjacent to the proposed vehicle access in Collins Street must be relocated clear of the proposed vehicle crossing. b) Construction of a concrete vehicle crossing at the Collins Street frontage of the site. An application shall be made to Council for the construction of the above works. Upon receipt of advice from council of the estimated cost of construction, payment of the amount must be made as soon as practicable to enable the crossings to be constructed prior to completion of the building work. The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant. 14 The applicant is concerned about the cost of relocating the poles, being $1500.00. 15 The width of the roller door is 3.8 metres, it would appear that a driveway of a lesser width could be provided which would not necessitate the removal of the pole. In the absence of an application for the construction of the driveway required by condition 19A(b) it is not possible to definitely determine whether the pole requires removal. I note that 19A(b) requires that the cost of relocating any public utility services shall be borne by the owner/applicant. Condition 19A(a) is therefore not required and it is appropriate that any relocation of the power pole be considered as part of any application for a vehicle crossing. Streetscape 16 In relation to the impact of the windows and fence on the streetscape and conservation area, I am not persuaded, given the varied context of the area, that the changes suggested by council are necessary. While the development consent was perhaps more compatible the current changes do not result in the unacceptable impact. Orders 17 In relation to Appeal No. 10829 of 2007 the Court Orders that: 1. The Appeal be upheld in part. 2. Application M/2007/35 made pursuant to s.96 of the Environmental Planning and Assessment Act 1979 to modify development consent D/2201/320 be approved subject to the conditions in Annexure A to these orders. 3. Exhibits other than exhibits 2 and 4 may be returned. 18 In relation to Appeal No. 10830 of 2007 the Court Orders that: 1 The Appeal against the Order EPA/2007/247 issued by Leichhardt Council pursuant s. 121B of the Environmental Planning and Assessment Act 1979 on 15 August 2007 be allowed in part. 2 Order EPA/2007/247 be amended to the following effect: To comply with Development Consent D/2001/320 approved on 12 December 2001 as modified by M/2007/35 approved by the Land and Environment Court on 18 October 2007 within 60 days of the date of issue of a construction certificate for the works proposed in M/2007/35. 3 Exhibits other than exhibits 2 and 4 may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.