Rubimint Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1265

Land and Environment Court New South Wales

Medium Neutral Citation: Rubimint Pty Ltd v Council of the City of Sydney [2012] NSWLEC 1265 Hearing dates: 14 September 2012 Decision date: 21 September 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeals are upheld. 2. Conditions 2A(a) and (f) of D/2010/1737C and D/2010/1738C are amended as follows: 2A(a) The porch at the ground floor level to Turtle Lane is to have a depth of 900 mm measured from the front façade; and 2A(f) The glass pane to the lower half of the dormer window shall be of fixed obscure glass to a height of 1635 mm above finished floor level and the outer face of the window to the dormer is to be setback from the front façade 2900 mm. 3. The exhibits, other than exhibit A, are returned. Catchwords: Modification consents: appeal against two conditions imposed on modification consents Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Category: Principal judgment Parties: Rubimint Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Mr Gary Green (Applicant) Ms Fenja Berglund (Respondent) Solicitors Pikes & Verekers Lawyers (Applicant) Council of the City of Sydney (Respondent) File Number(s): 10483 and 10484 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the imposition of two conditions of consent on Modification Applications D/2010/1738C (the 5-7 Turtle Lane application) and D/2010/1737C (the 9-13 Turtle Lane application), granted by the Council of the City of Sydney (the Council) for the properties at 5 -13 Turtle Lane, Erskineville (the sites). 2Because the terrace row of five dwellings is situated on two allotments, the applications were originally lodged as two development applications. As the appeals were lodged concurrently and the conditions, which are the subject of this appeal, are the same for both modification consents, the two appeals were heard concurrently. 3The applicant seeks the amendment of conditions 2A(a) and 2A(f) in both modification consents. The conditions state the following: (2A) Prior to the issue of a Construction Certificate, the drawings must be modified and be approved by the Director City Planning, Development and Transport as follows: (a) The porch at ground floor to Turtle Lane is to have a depth of 1380 mm measured from the street boundary. This requires the ground floor façade to be set in from the street boundary; (f) The proposed front dormer window to each terrace is not approved and is to be deleted from the plans and replaced with a skylight. 4Council contends that the purpose of imposing these two amendments to the development are as follows: * 2A(a) requiring a 1380 mm depth for the porch is to allow the three waste bins to be stored on the front porch. * 2A(f) requiring the deletion of the front dormer windows is imposed as the dormers will provide a significant increase in the visual bulk of the proposed terrace housing form and have the potential for overlooking of the rear private open space of dwellings fronting George Street, opposite the sites.