Bachir v Kogarah City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bachir v Kogarah City Council [2013] NSWLEC 1124
Hearing dates:	1-2 July 2013
Decision date:	12 July 2013
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions
Catchwords:	MODIFICATION: increase in height of constructed dwelling; impact on streetscape; impact on view from neighbouring property
Legislation Cited:	Environmental Planning & Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126 Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley [2004] NSWLEC 91 Tenacity Consulting v Warringah [2004] NSWLEC 140 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Raed Bashir (Applicant) Kogarah City Council (Respondent)
Representation:	Applicant: Mr S Nash (Barrister) Respondent: Ms S Puckeridge (Solicitor) Solicitors Applicant: Salim Rutherford Lawyers Respondent: Matthews Folbigg Pty Ltd
File Number(s):	10274 of 2013

Judgment

1. COMMISSIONER: The applicant appeals Kogarah City Council's refusal of a Section 96 Modification Application No. 347/2010/4 to allow an increase in building height and an increase in floor space ratio for a newly constructed two-storey dwelling.

1. The appeal to the Court is made under s 97AA(b) of the Environmental Planning and Assessment Act 1979 (the Act), that is, as a deemed refusal. Since the filing of the Class 1 application, the council determined the s 96 application and resolved to refuse it.

The proposal, relevant background and the issues

1. In January 2011, the council granted Development Consent No: 347/2010 for the demolition of an existing dwelling and construction of a new two storey dwelling with basement garage and in-ground pool on approved Lot 110, known as 59 Townson Street, Blakehurst (the site). The site is located on the corner of Townson and East Streets.

1. The dwelling, including the pool and the garage has been constructed.

1. The applicant has lodged a number of s 96 applications to modify the approved development. The history of applications is detailed in the council's Statement of facts and Contentions. While a number of internal modifications have been approved, the council has consistently refused approval to increase the height of various elements of the dwelling.

1. The Statement of Environmental Effects included with the modification application describes the proposed modifications in the current application. These relate to the as-built form of the dwelling and are summarised as:

• Basement level: additional space for access to plant equipment and lift; finished floor level raised by 30mm; backfilling of an excavated void space;
• Ground floor level: finished as-built floor levels raised by 590mm at the rear and by 600mm at the front; changes to the size and configuration of internals spaces; enclosure of an alfresco covered area on western side of the kitchen beneath a first floor bedroom;
• First floor level: as-built floor level raised by 670mm;…