Anthony v Leichhardt Municipal Council

[2005] NSWLEC 614

Land and Environment Court

of New South Wales

CITATION:

Anthony v Leichhardt Municipal Council [2005] NSWLEC 614

PARTIES:

APPLICANT
Drew Anthony

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):

10933 of 2005

CORAM:

Hussey C

KEY ISSUES:

Subdivision :- Inadequate site area - SEPP 1 Objection required for minimum lot size - landscape area - on-site parking provision

LEGISLATION CITED:

State Environmental Planning Policy No. 1

DATES OF HEARING:

31/10/2005

EX TEMPORE JUDGMENT DATE:

10/31/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Anthony, litigant in person

RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

31 October 2005

10933 of 2005 Drew Anthony v
Leichhardt Municipal Council

This decision was given as an extempore decision. It has been revised and edited prior to publication.

JUDGMENT

1 This is appeal against council’s refusal of a 2 lot subdivision application to reconfigure the common boundary between No. 38/40 Alfred Street, Annandale.

2 The details of the site, planning controls are contained within the Statement of Basic Facts. But in summary the proposal involves the creation of ;

• Lot 500, which is effectively No. 40 with part of the rear yard of No. 38 annexed to provide a total area of 294 sq m,

• Lot 501 is effectively the remainder of No 38 in the, which has a reduced area of 200.07 sq m. But this includes a battleaxe type handle approximately 1.5 m wide for services. This means that the effective area of this lot is 187 sq m taking into account the definition of the site area in the LEP.

3 The development standards are contained within cl 19 of the LEP and they prescribe a minimum area of 200 sq m, also a landscape area greater than 40% and an FSR 0.6:1

4 The proposed Lot 501 does not comply with the development standards for site area and landscape area, therefore in the absence of any SEPP 1 objection the application must fail.

5 However, during the discussions reference was also made to the merits of the proposal. In particular, reference was made to the provisions of the DCP cl B 1.3 which deals with car parking. These controls include that:

Where rear lane access is achievable, design car parking to be accessed from the rear lane only

6 The initial application would not comply with this requirement because it would effectively cut off the existing access to the rear laneway. In my assessment this is contrary to the DCP and results in a poor planning outcome. In this regard I note the applicant’s offer to amend the proposal but this still denies rear access, which is again is contrary to the intent of the controls and therefore undesirable.

7 In summary then it is apparent that the subdivision pattern within the “YOUNG STREET PRECINCT” is relatively intact and despite considerable redevelopment, generally including enlargement of dwellings, the rear access opportunity remains a common feature.

8 Accordingly I accept Ms Laidlaw’s opinion that the proposal would unduly compromise further development options for No. 38 and the resultant lot does not readily suit redevelopment of the type and standard and size of dwellings that have been redeveloped. Therefore the subdivision would not be consistent with orderly development and this results in its refusal.

9 The Court orders then are:

1. The appeal is dismissed.

2. Development consent for DA D/2005/101 for a 2-lot subdivision of No. 38/40 Alfred Street, Annandale, is refused.

3. The exhibits may be returned except for Exhibits 1 and 2.

___________________

R Hussey
Commissioner of the Court
rjs