Armstrong v Ashfield Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Armstrong v Ashfield Council [2013] NSWLEC 1144

Hearing dates:

22 July 2013

Decision date:

06 August 2013

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is dismissed.

2. Development Application No. 10.2012.75.1 for the substantial redevelopment of an existing residential flat building is refused.

3. The exhibits, other than exhibits 1 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to an existing residential flat building; existing use rights; local character; impacts on adjoining properties; internal amenity

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Ashfield Municipal Council v L Armstrong [2003] NSWCA 353
Ashfield Municipal Council v Armstrong [2002] NSWCA 269
Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587
Foder Investments v Hornsby Shire Council [2005] NSWLEC 71
Armstrong L v Ashfield Municipal Council [2004] NSWLEC 166

Category:

Principal judgment

Parties:

Mr Leonard Armstrong (Applicant)
Ashfield Council (Respondent)

Representation:

Counsel
Mr Adam Seton (Applicant)
Mr Peter Jackson (Respondent)
Solicitors
Marsdens Law Group (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

11187 of 2012

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 10.2012.75.1 for the substantial redevelopment of an existing residential flat building (the proposal) by Ashfield Council (the Council) at 6 Kensington Road, Summer Hill (the site).

1. The appeal was subject to mandatory conciliation on 13 March 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 5 April 2013 pursuant to s 34(4) of the LEC Act.

Issues

1. The Council's contentions in the matter can be summarised as:

• The proposal is an overdevelopment of the site and it will have a detrimental impact on the character of the locality, as the degree of intrusion of the built form into the rear yard will compromise the vegetated nature of the rear yards in the locality, which are effective in providing a 'green' zone between properties addressed to the respective street frontages. The freestanding built form proposed within the rear yard is excessive in area and occupies the majority of the area of the rear yard;
• The two units within the proposed freestanding built form, to the rear of the existing building, will have inadequate internal and external amenity;
• The only private open space for units within the existing building and the proposed addition to the existing building are located adjacent to the side boundary shared with 4 Kensington Road and these courtyards will have a detrimental impact on the visual and acoustic privacy of the residents of 4 Kensington Road;
• The proposal achieves inadequate solar access for three units;
• There are insufficient canopy trees to maintain the landscape character of the area; and
• The proposal provides a planning precedent for other…