Bitsikas v Canterbury Council - [2004] NSWLEC 601

Land and Environment Court

of New South Wales

CITATION: Bitsikas v Canterbury Council [2004] NSWLEC 601

PARTIES:
APPLICANT
Parry Bitsikas
RESPONDENT
Canterbury City Council

FILE NUMBER(S): 10574 of 2004

CORAM: Brown C

KEY ISSUES: Development Application :- categorisation of use
streetscape
solar access
overlooking
view loss

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Canterbury Planning Scheme Ordinance

CASES CITED: Segal & Anor v Waverley Council [2004] NSWLEC 363

DATES OF HEARING: 10/09/04, 19/10/04

DATE OF JUDGMENT: 11/03/2004

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Berveling, barrister
SOLICITORS
Norman Waterhouse
RESPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

3 November 2004

10574 of 2004 Parry Bitsikas v Canterbury City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Canterbury City Council (the council) of Development Application No 1175/03 for the demolition of an existing dwelling and the construction of three attached dwellings at 18, 18A and 18B Stone Street, Earlwood (the subject site).

The subject site

2 The subject site consists of three separate lots being lots 19, 20 and 21 in Section 4 of DP 32036. Each lot is 6.095 m wide and 28.65 m long, giving an area of 174.6 sq m. The three lots have a total area of 523.8 sq m. The subject site slopes approximately 4 m from the south eastern corner of 18 Stone Street to the north western corner of the same property. A single storey brick cottage with a tiled roof and a detached brick fibro garage is constructed over the three lots.

3 The locality is residential in nature with a range of older style cottages generally constructed over two lots but in some locations constructed over three lots. Recent residential developments generally consist of attached dwellings constructed over two lots with parking at grade or partially below ground level.

The proposal

4 The proposal seeks the demolition of the existing improvements on the subject site and erection of 3 attached dwelling houses, one on each of the existing lots. The dwellings would be attached by common walls running along the boundary of the three existing lots. Each dwelling has two car parking spaces in a tandem configuration at a similar level to Stone Street. The dwellings have two levels above the garages when viewed from Stone Street. The rear elevation presents as two levels due to the topography of the subject site that rises from the street frontage.

Relevant planning controls

5 The subject site is zoned Residential 2(b) under the Canterbury Planning Scheme Ordinance (the Ordinance). The classification of the proposed use was an issue between the parties and depending on the classification, the proposed use could be permissible with council consent or prohibited within this zoning. The Ordnance contains no relevant controls for the proposed development.

6 The subject site was subject to the provisions of draft Canterbury Local Environmental Plan 204 (the draft LEP) however by letter dated 25 August 2004, the Minister…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 601
Decision Date: 11/03/2004

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered an appeal by Parry Bitsikas against the Canterbury City Council's refusal of his development application for the demolition of an existing dwelling and the construction of three attached dwellings at 18, 18A and 18B Stone Street, Earlwood. The primary legal issues revolved around the categorisation of the proposed use, the compatibility of the development with the existing character of the area, and potential amenity impacts such as solar access, view loss, and privacy.

The court first examined the classification of the proposed use, determining whether it fell under "multiple unit housing" or "group dwelling" as defined in the Canterbury Planning Scheme Ordinance. The applicant argued that the development could be categorised as a "group dwelling," which would allow it to proceed with council consent. However, the court found that the proposal also qualified as "multiple unit housing," a use prohibited in the Residential 2(b) zone. Consequently, the court concluded that the proposed use was not permissible, leading to the dismissal of the appeal.

On the issue of streetscape, the court found that the proposed development's bulk and massing, along with its design features such as the splayed blade walls, would have an unacceptable impact on the streetscape. Despite satisfying height and floor space ratio requirements, the overall design was inconsistent with the character of the area, leading to the refusal of the development application on this ground.

Regarding amenity impacts, the court determined that the proposed development would not significantly affect solar access or privacy, as supported by the evidence presented. However, the court noted that some district views would be lost, though it did not consider this sufficient grounds alone to refuse the application.

Ultimately, the court dismissed the appeal and refused the development application, highlighting the significant impact the proposed development would have on the streetscape. The exhibits were returned to the applicant.

Orders