Mike George Planning Pty Ltd v Woollahra Council [2012] NSWLEC 1357

Land and Environment Court New South Wales

Medium Neutral Citation: Mike George Planning Pty Ltd v Woollahra Council [2012] NSWLEC 1357 Hearing dates: 10 December 2012 Decision date: 21 December 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 11/467 for a change of use of a studio over the garage to a dwelling is refused. 3. The exhibits, except for exhibit 3, are returned. Catchwords: DEVELOPMENT APPLICATION: change of use of an existing studio space over a communal garage to a dwelling; power of the Court to determine the appeal in the absence of owners' consent; amenity impacts on residential flat building; internal amenity of proposal. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mike George Pty Ltd (Applicant) Woollahra Council (Respondent) Representation: Mr M Sahade (Barrister) (Applicant) Mr P Rigg (Solicitor) (Respondent) Oliveri Lawyers (Applicant) Norton Rose (Respondent) File Number(s): 10960 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 11/467 (the proposal) by Woollahra Council (the Council) to change the use of an existing studio space over the communal garages to a dwelling for Lot 3, at 84-86 Wolseley Road, Point Piper (the site).

Issues 2The Council's contentions in the matter can be summarised as: * The application, if approved, will require work to be carried out on common property and there is no owners' consent in respect of the work that is to be carried out on common property; * The proposal is an intensification of the existing residential apartment development, which is not supported in a 2(a) Residential Zone; * The existing 7 car garage on the level below the proposal will impact on the amenity of the guest apartment; * The proposal does not provide any off street parking and the proposed dwelling does not provide for any private open space. 3The applicant disputes three (without prejudice) conditions of consent proposed by the Council, as follows: A.1 Deferred Commencement Condition - (s80(3) of the Act, cl. 95 of the Regulation) Modification of consent - s80A(1)(b) and s80A(5) of the Act. Lodgement with Council of a Notice of modification of development consent of DA 28/1998 endorsed 12 May 1998, as modified by consent dated 28 July 1998, for the deletion of condition 33 in compliance with the requirements of clause 97 of the Environmental Planning and Assessment Regulation 2000 and, if repealed, in accordance with any savings or transitional provision. B.4 The subject premises shall not be used as a domicile other than by an immediate family member of the owner of Lot 3 or for temporary occupation by a guest of that family for a period of not more than two months in any 12 month period. The subject premises shall not be advertised for rent or for lease or any similar arrangement. G.1 Payment of Long Service Levy, Security, Contributions and Fees. Total security, contributions, levies and fees $962.22 plus any relevant indexed amounts and long service levy. 4In regard to condition A.1, the applicant contends that it is unnecessary to modify development consent DA 28/1998. It is the applicant's submission that the application is seeking the deletion of condition 33 of Development Consent DA28/1998, which states: The premises shall not be used for residential purposes at any time. 5It is the Council's contention that the applicant does not have legal entitlement to delete condition 33 of the original consent without owners' consent. 6In regard to condition B.4, the applicant contends that it is ambiguous, as the condition does not define an immediate family member and the maximum period of occupation of 2 months per annum has no basis and is therefore arbitrary. In regard to condition G.1, the applicant contends that the levy is unnecessary as a levy would be inconsistent with the proposed use as guest accommodation.