Arkos Pty Ltd -v- Leichhardt Council

[2004] NSWLEC 442

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Arkos Pty Ltd -v- Leichhardt Council [2004]  NSWLEC 442

PARTIES:
APPLICANT
Arkos Pty Ltd

RESPONDENT
Lechhardt Council

CASE NUMBER:      10036 of       2004

CATCH WORDS:     Development Application

LEGISLATION CITED:
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000 (Residential Development)

CORAM:        Hussey C

DATES OF HEARING:        09/08/04

EX TEMPORE DATE:          09/08/2004

LEGAL REPRESENTATIVES

APPLICANT
Mr B Threlfo, agent
SOLICITORS
Avendra Singh Strati & Kam Lawyers

RESPONDENT
Ms R McCulloch, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

C Hussey

9 August 2004

10036 of 2004     Arkos Pty Ltd –v- Leichhardt Council

JUDGMENT

1. This appeal was lodged against council's refusal of the development application for alterations and additions to an existing dwelling and construction of two new 2 storey attached dwellings and 3 carports in Chapel Street, Lilyfield.  The proposal also includes Torrens Title subdivision of the site into two allotments, with the existing dwelling occupying one allotment and proposed townhouses occupying the second allotment, which is then proposed to be Strata subdivided.

1. The site is within the Residential zone and the development is permissible with consent under the provisions of the Leichhardt Local Environmental Plan 2000.  However cl 19 (2) contains a development standard for floor space ratio, which is not to exceed 0.5:1.  Other development standards refer to landscape area and subdivision controls.

1. In addition to this, there are a number of other relevant controls, including Leichhardt Development Control Plan 2000 (Residential Development), which provides suburb profiles and building envelopes and car parking requirements.

1. Following detailed assessment of the initial proposal, a number of unsatisfactory aspects of the proposal were identified.  This resulted in conferencing between the parties, particularly the consultant town planners, with agreement to the following matters; alterations to the existing dwelling for the sliding door and balustrade to Mary St to be deleted, the location of the line of subdivision is satisfactory, provision of offstreet parking for the existing house is not necessary, which allows repositioning of the carports for Townhouse 2 and reinstatement of kerbside spaces.  However the experts agreed that the built form of the two townhouses is the key issue, rather than strict compliance with the floor space ratio control and consequently they agreed that with the following amendments the proposal is acceptable:

1. Increasing the setback to Chapel Street,

2. making the townhouses narrower,

3. providing a roof form with a single gable element facing Chapel Street, perhaps similar to the   house at 14 Chapel Street,

4. maintaining compliance with the landscape area,

5. treatment of the street elevation should be a simple form, and not include imitation Federation or                  Californian bungalow details,

6. the roof form should not include a split-level,

7. the front alignment should also not be split into two different setbacks.

After further consideration of these amendments, council now agrees to consent orders, which includes the foremention amendments.

1. On notification of the consent orders to the objectors, further objections were received from a number of neighbours including, Mr T Chui (3/35 Mary St) and Ms P Quay (4/35) Mary St.  Both these neighbours expressed concern about overdevelopment of the site, parking problems in the Street and amenity in terms of loss of privacy, loss of views and aural impacts.

1. Having considered these objections, together with the further evidence of Mr Threlfo I am satisfied that the increase in floor space is relatively minor in this case and that be underlying objective of the development standards is reasonably well achieved, as agreed by the experts planners.  I rely on the their conclusions that the SEPP 1 Objection to cl 19 (2) of the LEP 2000 is well founded.

1. In so far as conditions of consent require the lowering of carport 1, I do not consider Mr Chui’s further desire to have this townhouse 1 also lowered is justified in this case, because it will not significantly improve amenity or longer distance views opportunities.  With respect to privacy impacts, I accept Mr Threlfo's evidence that there is a reasonable separation distance of 8 - 9 m from the small upstairs bedroom to Mr Chui’s balcony and that any privacy impacts can be improved by provision of a highlight window to this bedroom and accordingly I consider this a reasonable condition to impose.

1. It seems that Ms Quays unit is somewhat offset from the new development, and I accept Mr Threlfo's evidence that the alterations to the existing dwelling providing for screening of its external entertainment areas together with perimeter landscaping, which should result in an acceptable level of amenity in this neighbourhood.

1. Whilst there was some further concern about the possibility of reducing the overall height of townhouse 1, in the ultimate I rely on the planners agreement that a better streetscape impact is achieved by maintenance of the common roof line, so as to achieve consistency with the bulk and scale of other dwellings in the immediate area.  Even though Mr Threlfo admits the roof line could be lowered to some extent, I am not satisfied that any benefits arising, would complement the streetscape considerations.

1. Having considered the evidence, including the detailed assessment (in Exhibit 3), of the proposal by council officers relative to the prevailing controls, I am now satisfied that is amended proposal merits conditional consent.

1. CONSENT ORDERS

1. The appeal is allowed.

1. Development consent be granted for alterations and additions to an existing dwelling and the   construction of two new two storey attached dwellings with carports to Chapel Street, Torrens Title          subdivision of the site into two allotments with the existing dwelling occupying one allotment and the      proposed townhouses occupying the second allotment and the Strata subdivision of the proposed              townhouses at 37 Mary Street Lilyfield subject to conditions as described in Annexure A hereto.

1. The SEPP 1 objection to the Floor Space Ratio development standard in cl 19(2) Leichhardt  Local Environmental Plan 2000 is allowed.

1. The exhibits may be returned except exhibits 1, 2 & 4.

1. No order as to costs.

________________________
R R Hussey
Commissioner of the Court

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