Carvouni v Hurstville City Council

[2011] NSWLEC 1238

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carvouni v Hurstville City Council [2011] NSWLEC 1238

Hearing dates:

3, 4 August 2011

Decision date:

04 August 2011

Jurisdiction:

Class 1

Before:

Pearson C

Decision:

(1)The appeal be upheld.

(2)The development consent 2009/DA-384 granted on 22 July 2010 be modified under s 96 of the Environmental Planning and Assessment Act 1979 in accordance with the terms and conditions in exhibit C in these proceedings.

(3)The exhibits other than exhibits A, B, C, 1 and 3 are returned to the parties.

Catchwords:

Consent orders - development modification - dwelling house - setback - impact on streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994

Category:

Principal judgment

Parties:

Greg Carvouni (Applicant)
Hurstville City Council (Respondent)

Representation:

Mr M Driscoll, BCP Lawyers & Consultants (Applicant)
Mr P Rigg, Norton Rose Australia (Respondent)

File Number(s):

10316 of 2011

EX TEMPORE Judgment

1. This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application made under s 96(1A) of the Act to modify a development consent granted for the erection of a dwelling house at 115A Mi Mi Street Oatley, Lot 2 DP 303451 (the subject site). The amendments sought as part of the modification application 2009/DA-384REV01 were:

(a)   reduce part of the basement floor level by 100mm from 21.9 metres AHD to 21.8 metres AHD to permit the use of a standard sized garage door;

(b)   increase the ground floor ceiling level by 200mm from 26.8 metres AHD to 27 metres AHD to provide a 2600mm floor to ceiling height on this level;

(c)   increase the first floor ceiling level by 200mm from 29.2 metres AHD to 29.4 metres AHD to retain a 2600mm floor to ceiling height on this level;

(d)   deletion of the gable end roof and provision of a hipped roof;

(e)   reduce the southern side boundary setback to 900mm from 1500 mm;

(f)   reduce the northern side boundary setback from 2000mm to 900 mm;

(g)   increase the length of the dwelling to the rear by 680mm;

(h)   delete the approved swimming pool.

1. The Council accepted that a number of the amendments proposed were appropriate, and the issues in dispute between the parties related to two particular matters. The first issue was the internal ceiling height in the first floor family room, which the relevant planning controls specify to be a maximum of 7.2m above natural ground level. The second issue identified by the Council in its Statement of Facts and Contentions related to the proposed modification of the setback at the southern boundary.

1. The subject site is located in an area that is predominantly residential, with a mix of one and two storey single dwelling houses, and with a mixture of design types. The street has a significant fall from north to south, and the housing designs respond to the topography of the street, with a number of split-level designs and the use of basements and partial basements.

1. The property to the north, 113 Mi Mi Street, compromises a part one, part two-storey single dwelling house, and the property to the south, 115 Mi Mi Street, comprises a two-storey single dwelling house.

1. The site is narrow and the applicable provision that enabled the Council to grant development consent for the erection of dwelling house on the site was cl 11(5) of the Hurstville Local Environmental Plan 1994 (the LEP) which permits the erection of a dwelling house in the Zone No 2 (Residential Zone) on an allotment of land that existed as a separate allotment on the appointed day.

1. The matter was originally set down as an on site hearing and commenced on site with a view of the subject site and the immediate locality. The owner of 128 Mi Mi Street gave evidence. Present on that occasion were the two expert planners retained by the parties, being Mr Kennan for the applicant and Mr Betros for the Council. Mr Kennan and Mr Betros provided a joint report addressing the planning issues (exhibit 4). Evidence was given on site by the two expert planners addressing the particular matters that were of concern to the Council.

1. The parties have now reached agreement that in essence permits the modifications identified above, and request the Court to make orders by consent.

1. The parties propose to amend condition 2 of Development Consent 2009/DA-384 to reference amended plans, and to require in relation to the internal ceiling height, a specification that that height not exceed 7.2m above natural ground level. The substance of the amendments to the southern side setback as agreed between the parties are to retain the 1500mm setback at the first floor at the street and to permit modification to a 900mm setback at the rear of the property.

1. The Council is satisfied that the plans as amended in this form now satisfy the specific controls specified in the Hurstville Local Government Area Wide Development Control Plan Section 4.5 Single Dwelling Houses (the DCP), in particular the controls specified at 4.5.3.1 and 4.5.3.3 of the DCP.

1. The Council had notified the original application to modify the development consent and received two submissions in response. The written submission from the owner of 128 Mi Mi Street raised concerns that the proposed amendment exceeded the specified ceiling height requirement, and raised concerns about impact on the streetscape given the development on a narrow allotment. Those concerns were also expressed by the owner of 128 Mi Mi Street on site in oral evidence. The second written submission came from the owner of 113 Mi Mi Street, which adjoins the property on the northern side. That objection was in part to the original development, on the ground that the subdivision should not have been allowed because the site is too narrow, and in relation to the modification application, on the ground that it exceeded the specified ceiling height requirements.

1. I am informed by Council's representative that the owner of 128 Mi Mi Street has been informed of the proposed consent orders and has stated that he is satisfied that the 1500mm setback on the first floor at the street frontage is a good outcome and is appropriate in the circumstances. I am informed that the Council's representative has not been able to contact the owner of 113 Mi Mi Street, and I have been taken to the terms of the written objection made to the modification application. I agree with the Council's representative that the outcome as agreed between the parties now does comply with the specified ceiling height requirement in the DCP, and to that extent, the objection made to the modification application by the owner of 113 Mi Mi Street has been addressed.

1. In terms of other more general concerns raised by the Council, shadow diagrams prepared to reflect the plans as originally put to the Council on the modification application are in evidence. Those plans show that the bulk of the overshadowing to the property on the southern side, namely 115 Mi Mi Street, arises from the plans approved in the development consent granted by the council. There is some additional shadow identified on the overshadowing diagram in relation to the modification application. I accept the evidence of the planners that the modifications now made as a consequence of the discussions between the parties will reduce any additional overshadowing impact and will certainly not exacerbate that created by the original consent.

1. Having considered all of those matters, I am satisfied that the issues in dispute between the parties have been addressed, and I accept that it is appropriate to approve the modifications as they are now put to the Court as meeting the aims and objectives of the LEP and the 2 (Residential Zone), and the requirements of the DCP.

1. Accordingly I make the following orders by consent:

(1)   The appeal be upheld.

(2) The development consent 2009/DA-384 granted on 22 July 2010 be modified under s 96 of the Environmental Planning and Assessment Act 1979 in accordance with the terms and conditions in exhibit C in these proceedings.

(3)   The exhibits other than exhibits A, B, C, 1 and 3 are returned to the parties.

Linda Pearson

Commissioner of the Court

Decision last updated: 15 August 2011