Solheim v Bayside Council [2020] NSWLEC 1118

Land and Environment Court New South Wales

Medium Neutral Citation: Solheim v Bayside Council [2020] NSWLEC 1118 Hearing dates: 26-27 February 2020 Date of orders: 12 March 2020 Decision date: 12 March 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The appeal is dismissed. (2) Development Application 2018/244 by Bayside Council (the Council) for a demolition of an existing carport and reconstruction of a new carport structure on Lot 8 DP 6524, also known as 22 O'Connell Street, Monterey is refused. (3) The exhibits are retained. Catchwords: DEVELOPMENT APPLICATION – carport – consistency with streetscape character Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 Texts Cited: Rockdale Development Control Plan 2011 Category: Principal judgment Parties: Mark Anton Solheim (Applicant) Bayside Council (Respondent) Representation: Counsel: R Pearson (Solicitor) (Applicant) P Brown (Solicitor) (Respondent)

Solicitors: Creagh & Creagh (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/213582 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2018/244 by Bayside Council (the Council) for a carport on Lot 8 DP 6524, also known as 22 O'Connell Street, Monterey (the site). The (original) DA under appeal was lodged with Council on 21 September 2019. 2. At the conciliation conference for this appeal, held on 26 February 2020 and arranged by the Court pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (the Court Act), an agreement was unable to be reached between the parties. The conciliation was terminated as agreed with the parties. 3. After the termination of the conciliation conference, both parties consented to myself as the presiding Commissioner, disposing of the appeal proceedings forthwith based on what occurred at the conciliation, and in accordance with s 34AA(2)(b)(ii) of the Court Act. No objectors were heard at the conciliation, although the Court recognises one submission was received during the notification of the DA. The parties agree that the Court can rely on site observations from the conciliation. 4. Further to this, the parties seek the Court to rely on the following submitted in evidence: 1. Exhibit 1 – (Council) Bundle of Documents 2. Exhibit 2 – Expert (Engineering) report prepared by Mr Samuel Arulananthan for the respondent 3. Exhibit 3 – Draft Conditions of Consent 4. Exhibit 4 – Statement of Facts and Contentions 5. Exhibit A – Class 1 Appeal Application 6. Exhibit B – (Amended) DA 2018/244 7. Exhibit C – Joint expert (Planning) report prepared by Mr Michael Maloof for the respondent and Mr Brent Winning for the applicant. 8. Exhibit D – Photographic Survey dated 25 February 2020 1. The Court also gave, prior to reserving judgment, the parties an opportunity, to file written submissions in support of their position, which was filed on 26 February 2020.