Derums v Leichhardt Council [2010] NSWLEC 1366

Land and Environment Court of New South Wales

CITATION : Derums v Leichhardt Council [2010] NSWLEC 1366

APPLICANT Yanis Derums PARTIES : RESPONDENT Leichhardt Municipal Council

FILE NUMBER(S) : 10272 of 2010

CORAM: Brown C

KEY ISSUES: APPEAL :- modification of existing approval for alterations and additions to an existing dwelling - roof form/bulk and scale/ FSR - overshadowing - loss of privacy - breach of Building Code of Australia

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Pafburn v North Sydney [2005] NSWLEC 444

DATES OF HEARING: 12 November 2010

EX TEMPORE JUDGMENT DATE : 12 November 2010

APPLICANT Dr S Berveling, barrister

LEGAL REPRESENTATIVES: RESPONDENT Ms J Walsh, solicitor SOLICITORS Pikes Lawyers

JUDGMENT: - 1 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

12 November 2010

10272 of 2010 Yanis Derums v Leichhardt Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Leichhardt Municipal Council (the council) of an application to modify an approval for alterations and additions to an existing dwelling at 7A Johnston Street Balmain East. The Land and Environment Court granted the approval for the alterations and additions on 17 September 2004, subject to deferred commencement conditions. On 9 December 2004 the council issued an operational consent; the deferred commencement conditions having been satisfied. 2 The appeal was subject to a conciliation conference on 12 November 2010 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceedings forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conferences held on 26 August 2010 and 1 October 2010 pursuant to s 34(4)(b)(ii). 3 The modification application seeks a number of modifications although not all modifications are opposed by the council. The areas of contention relate to the modification of the second level floor plan for the rear module of the proposed residential development. The modification sought to change the roof form, increase the floor area by 6 sq m and reconfigure the internal space. The contentions raised by the council relate to: (1) unacceptable increase in bulk and scale through the new roof form, (2) unacceptable increase in floor space ratio (FSR), (3) unacceptable overshadowing, (4) unacceptable loss of privacy, and (5) breach of the Building Code of Australia (BCA).