Rocca & Anor v Ashfield Council [2011] NSWLEC 1361

Land and Environment Court New South Wales

Medium Neutral Citation: Rocca & Anor v Ashfield Council [2011] NSWLEC 1361 Hearing dates: 2 December 2011 Decision date: 13 December 2011 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION - weight to be applied to draft LEP; whether dwelling should be demolished; contribution of dwelling to character and streetscape; whether dwelling has heritage significance; dual occupancy; bulk, scale and height. Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Ashfield Local Environmental Plan 1985 Cases Cited: Carstens v Pittwater Council [1999] NSWLEC 249 Texts Cited: Ashfield Heritage Review of Properties zoned Residential 2(a) and some other properties Stage 5: Ashfield South - Final Report; Ashfield DCP 2007 Category: Principal judgment Parties: Raffaele & Teresa Rocca (Applicant)

Ashfield Council (Respondent) Representation: Counsel Dr S Berveling (Applicant) Solicitors Mr B Goldsmith (Applicant's agent)

Ms C Rose Maddocks Lawyers (Respondent) File Number(s): 10755 of 2011

Judgment 1This is a hearing under s 34AA(2)(b)(i) of the Land and Environment Court Act 1979 (the LEC Act) held following the termination of a conciliation conference. Ashfield Council has refused Development Application No 10.2011.078 which proposed the demolition of an existing dwelling house and the construction of a two-storey attached dual occupancy and a detached garage for two vehicles at the rear of the site at No 13 Service Avenue, Ashfield (the site) and the applicants are appealing that decision. 2As part of the conciliation phase, the applicants prepared amended plans to reflect recommendations of the council's experts made at the initial conference. Leave was granted to rely on those plans and the changes were considered to be 'minor' for the purposes of s 97B(1) of the Environmental Planning and Assessment Act 1979 (the Act). Those changes involved alternate fenestration and attic treatment however maintained the building footprint and floor plan layout. Those plans (Exhibit A) were the subject of further discussions and agreed changes, which, subject to resolution of two remaining contentions, could be addressed as conditions of consent. The council had originally identified 8 contentions that have been resolved in part through the changes made to the plans. The issues are now confined to two and they are whether the existing dwelling should be demolished and whether the two-storey form and appearance of the proposed dual occupancy is uncharacteristic of the locality.