City Forum Pty Limited v Leichhardt Council - [2005] NSWLEC 369

Land and Environment Court

of New South Wales

CITATION:
City Forum Pty Limited v Leichhardt Council [2005] NSWLEC 369

PARTIES:
APPLICANT:
City Forum Pty Limited
RESPONDENT:
Leichhardt Council

FILE NUMBER(S):
11084 of 2004

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- Vehicular access
Lack of information and
Other matters including
streetscape
form of development
and internal amenity

LEGISLATION CITED:
Leichhardt Local Environmental Plan 2000, (LEP2000)
State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55)
Leichhardt Development Control Plan 2000, (DCP2000)
Draft Amendment 10 to Leichhardt Development Control Plan 2000, (Amendment 10)
Development Control Plan No 38 (Waste Minimisation, Removal and Storage), (DCP38)
Development Control Plan No 42 - Land Contamination, (DCP42)
Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 13/12/2004 and 05/07/2005

DATE OF JUDGMENT:

07/08/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, barrister instructed by
Mr P Saab, solicitor
SOLICITORS:
Macquarie Lawyers
RESPONDENT:
Mr G A Green, solicitor
SOLICITORS:
Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

8 July 2005

11084 of 2004 - City Forum Pty Limited v Leichhardt Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Council (the council) of a development application to demolish outbuildings and part of the existing building, remediate, excavate, alter and add to the existing dwelling to provide three (3) x two-storey attached dwellings over a basement car parking for three (3) cars, with associated works, and to strata subdivide the building into 3 lots at Lot 15, DP 921216, being No 28 Henry Street, Leichhardt.

2 I visited the land in company with the parties on the morning of the day of the on-site hearing.

3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979. Deferred commencement conditions are required to ensure that further structural and geotechnical information is supplied to ensure that adequate support is provided for the abutting and existing building and that a clear ramp width of 3.05m is provided.

The land

4 The land, which is situated on the western side of Henry Street, is rectangular in plan shape, and has a width of 12.19m and a depth of 50.29m with an area of 613m2. The land slopes down gently from Henry Street towards the rear.

5 Erected on the land is a single-storey double-fronted Victorian-style dwelling located towards the front of the land erected near its southern boundary. There are two (2) outbuildings and the rear of the land is paved. The rear of the land has been used in the past for semi-industrial uses such as storage of builder's materials and the like. A driveway is located abutting the northern boundary of the land. There is no vegetation of significance on the land and there is no easement or restriction-as-to-user on title.

6 Abutting the land to the north and south are single storey Victorian-era dwellings, similar in siting and appearance to that of the existing dwelling.

7 Other buildings in Henry Street comprise single and double fronted cottages, two-storey blocks of flats, two-storey contemporary townhouses, two-storey dwellings, a large warehouse building used for storage of liquor, and a large Orthodox Church. Also there are some single-storey detached Victorian and Federation style cottages.

Relevant planning controls

Leichhardt Local Environmental Plan 2000, (LEP2000)

8 Under the provisions of the LEP2000, the land is zoned Residential and the proposal is permissible with consent under cl 18(3) of that instrument. The land is not within a conservation area and is not identified as a heritage item; however, it is located in the vicinity of a number of heritage items.

9 Clause 19(2)-Floor Space of LEP2000 states

Except where the development is carried out in accordance with clause 23(1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area.

10 The proposal would achieve a floor space of about 305m2 (not including the basement car park, which would be located wholly below ground) on a site with an area of 613m2, which would equate to a floor space ratio (FSR) of 0.5:1. Thus the proposal would comply with cl 19(2) of LEP2000 and the allowable FSR of 0.5:1.

11 Clause 19(3) -Landscaped Area states:

Except where the development is carried out in accordance with clause 23(1):

(a) the minimum landscaped area for residential development is 40% of the site area, and
(b) 25% of the landscaped area required under paragraph (a) or 10% of the total site area:
(i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and
(ii) is to be permeable, and
(iii) is to be appropriate for substantial deep planting.

12 The proposal would provide a landscaped area greater in area than 40% of the land; with a soft landscaped area in excess of 10% of the land area. As a result, the proposal would comply with cll 19(3)(a) and (b) of LEP2000.

13 Under cl 16(7) Development in the Vicinity of a Heritage Item of LEP2000:

Consent must not be granted for development on land in the vicinity of a heritage item, unless the consent authority has made an assessment of the effect the carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item.

14 The land is located in the vicinity of the following heritage items:

· The street trees along Henry Street - row of Brush box and one Ficus Hillii - Local Significance;

· The landscaping to Pioneers Memorial Park (former Balmain Cemetery) - Local Significance; and

· SRA site - SRA Stores Branch Building, former Tram Depot Office, Tramshed, Cable Store - State Significance.

State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55)

15 This matter may be dealt with by condition.

Leichhardt Development Control Plan 2000, (DCP2000)

16 Under DCP2000:

• Part A8.0 - Carparking Standards and Controls;

17 This matter may be dealt with by design and condition.

Development Control Plan No 38 (Waste Minimisation, Removal and Storage), (DCP38)

18 This matter may be dealt with by design and condition.

Development Control Plan No 42 - Land Contamination, (DCP42)

19 This matter may be dealt with by condition.

The proposal and its history

20 Development application No D/2002/ 321 was lodged with the respondent council on 20 May 2002 to demolish outbuildings and part of the building, remediate, excavate, alter and add to the existing dwelling to provide three (3) x two-storey attached dwellings over a basement car parking to accommodate three (3) cars and associated works, to strata subdivide the building into 3 lots at the land.

21 Development application No D/2001/943 was to retain the existing dwelling and to erect three (3) x two-storey townhouses over a basement car park and to strata subdivide No 28 Henry Street. The applicant withdrew this application after the council staff advised that the proposal would not be supported.

22 Development application No D/2002/321 was to alter and add to the existing dwelling, to Torrens title subdivide into 2 lots, and to construct two (2) new dwellings on the new rear allotment and to Strata subdivide. This application was refused by the council and upon appeal, refused by the Court. The Court was of the opinion that the proposal would have adverse impacts in the streetscape and would not comply with the Building Location Zone (BLZ) provisions of the DCP.

23 Nearby in Henry Street:

· Development Application DA 419/97 to retain a dwelling and erect four townhouses with underground car parking at No 45 Henry Street was approved in 1998.

· Development Application DA 222/93 to erect 6 x two-storey townhouses at No 3 Henry Street was approved in 1984.

· Development Application DA 315/84 to demolish dwellings and erect 7 x 2 storey townhouses at Nos 34-36 Henry Street was approved in 1984.

· Development Application DA 37/95 to demolish a dwelling and construct 3 x 2 storey townhouses at No 24 Henry Street was refused in 1995.

· Development Application DA 308/95 to carry out a battle-axe subdivision and erect a dwelling at the rear of the site at No 24 Henry Street was refused in 1996.

24 The council wrote to the applicant, on 5 August 2004, raising the following concerns with respect to the present application:

· The excessive extent of demolition works to the existing dwelling and whether the areas of the building that are nominated as being retained can be retained;

· Adverse incremental changes to the existing dwelling that will be detrimental to the existing dwelling and the streetscape;

· Excessive scale and the boundary-to-boundary form of the development and incompatibility with the existing built context of Henry Street;

· Proposed on-site car parking and non-compliance with the Australian Standard for car parking; and

· The adequacy of the plans and supporting information submitted.

25 In response, the applicant wrote on 16 August 2004, stating that the reasons for rejecting the application were unjustified. In response, the council wrote again on 19 August 2004, noting that the response did not adequately address any of the primary issues of concern, and that the officers of the council would be recommending refusal.

Notification

26 The application was notified to nearby owners and occupants from 23 June to 7 July 2004 and the council received twenty-one (21) pro-forma submissions.

27 Concerns related to:

· Insufficient car parking;

· Preservation of the rear yard;

· Poor quality of development;

· Bulk and scale;

· Precedent;

· Large scale remediation required;

· Privacy; and

· Noise.

The council’s decision

28 By notice dated 22 September 2004 the council, despite a planning report recommending approval, the present application was refused under delegated authority for the following reasons:

1. The application is not in the form required by clause 54(1) of the

Environmental Planning and Assessment Regulation 2000.

2. The extent of demolition works proposed to the front portion of the dwelling is considered to be excessive and unacceptable, and based on the information provided, there is uncertainty as to whether the areas of the building that are nominated as being retained can be retained.
3. No details have been provided as to the proposed methods of excavation, shoring or pile construction, or vibration emissions and any possible damage which may occur to adjoining or nearby premises and the measures that are to be implemented to prevent or minimise structural damage to nearby premises.
4. The inappropriate siting of Unit 3, the boundary to boundary form of the development and the unnecessarily excessive scale of the building would be incompatible with the general established pattern of development in this street, and is not considered to accord with the `Site Layout, Subdivision and Building Design' provisions of Part B1.1 of DCP 2000 and the `Building Form, Envelope and Siting' provisions of Part B1.2 of DCP 2000.
5. The roof alterations, proportions of openings, finishes and general design and detail of particular aspects of the development would be inappropriate to the existing dwelling and would detract from this building, the immediate adjoining similar style cottages and the streetscape in general, and would not accord with the 'Elevation and Materials' provisions of Part B1.5 of DCP 2000, the 'Dormer Windows' provisions of Part B3.6 of DCP 2000 and the 'Alterations and Additions to Dwelling houses' provisions of Part B4.1 of DCP 2000.
6. The proposal would result in poor circulation space for vehicles when entering and exiting the basement car park at the base of the access ramp, and is not considered to be satisfactory with respect to AS/NZS 2890.1-2004.
7. The location and visibility of the garbage bin storage area would detract from the streetscape, and together with the lack of scope for planting substantial trees at the front of the site, would result in a development that is not considered to accord with the `Dwelling Entries' provisions of Part B1.6 of DCP 2000 and the `Site Facilities' provisions of Part B1.8 of DCP 2000.
8. The `Solar Access' provisions of Part B3.1 of DCP 2000 have not been demonstrated by this proposal, specifically with respect to solar access to the new dwellings.
9. The proposal is considered to be inconsistent with the 'General Objectives' of clauses 13(1)(b) and (2)(a)-(d) of LEP 2000, the 'Heritage Conservation' Objectives of clauses 15(b) and (c) of LEP 2000 and the 'Housing Objectives' of clause 17(a) of LEP 2000.
10. The site is not suitable for the proposed development.
11. The approval of this application would not in the public interest.

The hearing

29 The appeal was filed on 6 September 2004. Present at the on-site hearing, which was held on site at 9.30am and at around 10.00am on 13 December 2005, in the Leichhardt Council Chambers were:

· Mr P Clay, barrister for the applicant;

· Mr P Saab, solicitor of Macquarie Lawyers;

· Mr S Fares, building designer;

· Mr N Kennan, consultant town planner for the applicant

· Mr Green, solicitor for the respondent;

· Ms M Lyons, solicitor for the respondent;

· Mr A Smith, consultant town planner;

· Mr S Cannavo, No 30 Henry Street; and

· Ms Gibson, No 26 Henry Street.

30 At the hearing the court heard evidence on behalf of the respondent council from Mr A Smith, consultant town planner.

31 On behalf of the applicant Mr N Kennan, consultant town planner, and Mr S Fares, building designer, gave evidence on site and at the council chambers on 13 December 2004.

32 On 5 July 2005, Ms M C Petrozi, who lives at No 22 Henry Street and who gave evidence on behalf of her parents who live at No 30 Henry Street, gave evidence in Court. Ms Gibson, of No 26 Henry Street was also present.

The issues

33 On 30 September 2004 the council filed a statement of issues:

1 Streetscape - 1.1 - absence of side setbacks in a street characterised by dwellings having at least one side setback from the adjacent boundary (Leichhardt LEP 2000, cll 15(b) & (c) Leichhardt DCP 2000, B1.1 and 1.2)

1.2 - excessive scale of the building incompatible with the established pattern of development in the street (Leichhardt LEP 2000, cll. 15(b) & (c) Leichhardt DCP 2000, B1.1 and 1.2)

1.3 - Proposed roof form, dormer and window proportions, finishes and general design details would be inappropriate to and would detract from the existing building, similar style cottages in the street and the streetscape in general (Leichhardt LEP 2000, cll 15(b) & (c) Leichhardt DCP 2000, B1.5, B3.6 and B4.1)

1.4 - the location and visibility of the proposed garbage bin storage area combined with the absence of opportunity for substantial planting at the front of the site would detract from the streetscape (Leichhardt DCP 2000, B1.6 and 1.8)

2 Inappropriate form of development - 2.1 - the proposed form of development, comprising three dwellings constructed from boundary to boundary over basement car parking, does not satisfy the general objectives for ecologically sustainable development, built and natural environment and amenity or heritage contained in Leichhardt LEP 2000 (Leichhardt LEP 2000, cll 13(1)(b), 13(2)(a)-(c), 13(4))

2.2 - the proposed form of development does not satisfy the urban design principles contained in Leichhardt LEP 2000 (Leichhardt LEP 2000, cl 14 (a)-(f) & (l))

2.3 - the proposed form of development does not satisfy the specific objectives for housing contained in Leichhardt LEP 2000, (Leichhardt LEP 2000, cl 17(a)-(d))

3 Internal Amenity - the main living areas of the proposed new dwellings are not oriented so as to optimise solar access and would not receive 3 hours of direct sunlight in midwinter (Leichhardt DCP 2000, B3.1)

4 Absence of Information - 4.1 - Strata Subdivision - no plan of strata subdivision has been lodged by the applicant (Environmental Planning and Assessment Regulation 2000, cl 54(1))

4.2 - Engineering details - the application is deficient in that it does not contain adequate information to address the following matters:

· the proposed method of excavation

· the proposed method of construction (ie. shoring or pile)

· vibration emission

· likelihood of damage to nearby premises and measures to prevent or minimise such damage

· certification that the parts of the existing building shown as being retained can in fact be retained

· certification that the remaining parts of the existing structure can support the proposed additions

· demolition plan in elevation or of the roof of the existing dwelling

· details of the proposed extension of Council's underground drainage system to the site frontage (minimum 375mm pipe required)

· details demonstrating that all pits and pipe junctions can be contained wholly within the site boundaries

· details demonstrating that stormwater and subsurface water discharge from the proposed basement sump can be drained to the on-site detention tank

· geotechnical report relating to subsurface conditions at the site including proposed subsurface drainage and expected discharge rates, construction of retaining walls, proposed excavation adjacent to neighbouring properties and the existing dwelling (Environmental Planning and Assessment Regulation 2000 cl 54(1))

· certification of the proposed vehicular access and carparking facility by a suitably qualified traffic engineer with NPER registration that the access and facility comply with the requirements of AS/NZS2890.1.

5 Extent of demolition - the extent of demolition works proposed for the front portion of the existing dwelling is excessive.

6 Extent of excavation - the extent of excavation proposed for the basement carpark being in excess of 2m in depth and extending up to or close to the site boundaries is considered excessive and inappropriate in the locality.

7 Inconsistencies between the demolition plan and the drawings of elevations of the proposed development - the plans are inconsistent in relation to the proposed extent of demolition of the eastern, southern and northern walls of the existing dwelling.

8 Access and egress - the location of the stairway to Unit 3 and resulting ramp width would result in poor circulation space for vehicles entering and exiting the basement car park. The applicant has not produced a longitudinal section along both sides of the vehicular access to demonstrate that boundary levels are 150mm above the adjacent road gutter invert and that access complies with the ground clearance requirements of AS/NZS2890.1 (AS/NZS2890.1).

34 The salient issues were the lack of structural and geotechnical information concerning support for the abutting and existing building and the narrow width of the vehicular ramp to the basement.

The evidence and findings

Vehicular access and lack of information

35 When the matter came before me on 13 December 2004 the parties agreed that amended plans would be provided showing “…Underpinning and retaining walls for the ramp and basement against the side boundaries of Nos 26 and 30 Henry Street, the existing building, and this should be shown on a cross-section through the ramp at the new garbage bin store; supplemented by a amended geotechnical report.” I gave directions to that effect.

36 At the hearing on 5 July 2005, Mr Clay submitted that the required sections were shown in Exhibit F. However, in Exhibit F there is no cross-section through the ramp in the previous position for the garbage bin store (now relocated).

37 At the hearing on 5 July 2005, Mr Mitchell engineer for the applicant, and Mr Jeffery for the council, gave concurrent evidence as to the method of supporting the foundations of the abutting dwelling at No 30 Henry Street at the vehicular ramp. Both agreed that where the excavation would be in excess of 1.5m deep at least 300mm diameter reinforced concrete cantilevered piles forming a contiguous retaining wall around the perimeter of the site would be required. Mr Jeffery stated: “I would expect a cantilevered wall of around 400mm pile diameter would be necessary (ie. Given the substantial surcharge load plus groundwater pressure)”, [Note: Exhibit 9 Tab 6 letter dated 23 February 2005]. Allowing for a 100mm offset from the boundary to the outer edge of the 300mm diameter pile for the driving or torque head of the mechanical plant and 50mm for ‘wobble’ the overall minimum width of the 300mm diameter contiguous piling from the boundary would be 450mm. This would mean that the width of the ramp to the wall of the existing building would be 3.05m and less than required by the Australian Standard AS/NZS 2890.1-2004.

38 Mr Clay submitted for the applicant, referring to the evidence of Mr Hazell in a letter dated 14 March 2005 [Note: Exhibit 9 Tab 8], that a clear ramp width of 3.05m would be sufficient for vehicular access and egress to and from the basement car park. Mr Clay also submitted that although the ramp would not comply with the AS/NZS 2890.1- 2004, this deficiency was to be weighed in the balance with the benefits of retaining the existing building and maintaining a reasonable streetscape and that only three car parking spaces are being accessed. He indicated that his client was prepared to submit to a deferred commencement condition that would enable the council and the Court to be involved in the firming up of the detailed design of the retaining walls and ramp after further geotechnical and structural studies are undertaken.

39 Mr Green submitted that the evidence of the width of the retaining walls and the clear width of the vehicular ramp “was worse” than that contemplated by the traffic engineer in his report dated 14 March 2005 and that the vehicular access and egress to and from the basement is likely to be constrained to a width less than 3.05m. He pointed to the evidence of Ms Petrozi, that she and her parents were concerned that the proposed retaining wall abutting the boundary with No 30 Henry Street might cause the lime mortar bedded brick walls of that neighbouring dwelling to crack. He submitted that on the evidence, a greater clearance between the proposed retaining wall and the southern wall of No 30 Henry Street might be required.

40 As presently proposed the clear width of the vehicular access ramp would be 3.05m if the 300mm diameter contiguous reinforced retaining wall were driven as contemplated by the applicant. Mr Mitchell referred to discussions with Robar? (my note) piling contractors who were capable of piling in close proximity to the southern wall of No 30 Henry Street. Mr Jeffery was sceptical of this evidence and was of the opinion that much depends on the type of equipment used to drive the 300mm diameter piles, engineering design and the skill of the piling operators. He suggested some piling contractors might require a greater distance than 100mm for tolerance from the common boundary with No 30 Henry Street. He indicated that it would be necessary to ensure that the piling equipment were spaced far enough from the lime mortar brick wall supporting No 30 Henry Street to avoid mechanical damage. If greater tolerances were required the clear width of the vehicular access ramp to the basement might be less than 3.05m.

41 The foundations of the land are clay and shale as described in the report by Geotechnique Pty Limited in Exhibit K and seasonal variation of the moisture of the foundations are likely to cause cracking and this could be exacerbated by driving piles in close proximity to the southern wall of No 30 Henry Street. Ms Petrozi’s evidence was that given the foundation material that underlies the footings of her parents dwelling at No 30 Henry Street, there is a strong likelihood of movement and cracking were the proposed contiguous reinforced concrete piling driven so close to the lime mortar brick southern side wall of that property.

42 Although the applicant has prepared additional drawings since the hearing on 13 December 2004 much is still to be done. If approval were contemplated deferred commencement conditions would be essential.

43 The proposal is for part of the northern wall of the existing dwelling on the land to be retained in its existing location, underpinned and modified with arched openings on the ground floor. I am satisfied that with the right equipment, and experienced operators, the contiguous reinforced concrete piling near No 30 Henry Street might be driven near the boundary with No 30 Henry Street to provide a vehicular ramp of clear width of 3.05mm. Construction would need to be within tight constraints to achieve this.

44 This clear ramp width would be adequate to enable vehicular access to be gained to the basement. Were the width less than this, it is likely that vehicular access to the basement car park would be so restricted as to only provide access and egress for small cars. This would be unacceptable, so conditions have been imposed to ensure that the design, as proposed, is carried into effect. If the proposed clear ramp width of 3.05m cannot be achieved, the development application would need to come back for further consideration to the council and the Court if necessary.

45 I would not refuse the application for reason of inadequate documentation, provided the finished clear ramp width of 3.05m as proposed could be achieved.

Other matters including streetscape, form of development and internal amenity

46 The proposal is now largely situated within the building location zone, (BLZ) as required by the DCP2000 and would leave open the western rear yards. Ms Petrozi was concerned that the proposal would be overpowering when viewed from the windows of rooms facing to the southern light well of No 30 Henry Street. Along the boundary near the light well it is proposed to erect a 2.4m high acoustic masonry wall and 2.4m high northern masonry wall of the living room of Unit No 3. Thus from viewpoints facing south in No 30 Henry Street, a wall 700mm higher than a 1.8m high fence is proposed. Over part of that wall would be a roof, sloping away from the viewer. I am satisfied that this would not unreasonably overpower the residents of No 30 Henry Street such that refusal of the application would be indicated.

47 The street-front eastern elevation shows much of the existing building retained. New works are setback from the frontage and of modest height and scale. Although somewhat unusual in form, being of skillion form, I consider these new works would not so detract from the streetscape as to warrant refusal of the application.

48 The main living areas of the proposed new dwellings are proposed oriented to the west. The council refused the application for reason of inadequate solar access to these living rooms and the fact that in its view, these rooms would not receive 3 hours of direct sunlight in midwinter as required by DCP2000, cl B3.1. I agree that the west facing vertical windows would not receive the required amount of sunlight. However, there is a skylight shown in the cross-section on drawing No 05, above the living room of Unit No 3, and this might be expected to provide 3 hours sunlight in midwinter to that living room. Some sunlight in midwinter would be received through the vertical west facing windows on the ground floor and attic of that and other units.

49 There are proposed west facing skylights to the living rooms of Units 1 and 2 that might be expected to capture some midwinter afternoon sunlight.

50 In addition the cross-section on drawing No 5 also shows skylights to the attic bedrooms of each of the units and access for midwinter afternoon sunlight could be expected.

51 Every attempt to provide midwinter solar access has been taken, and given the constraints of the east west orientation of the subdivision pattern, I would not refuse the application for reason of inadequate solar access or internal amenity.

52 Other issues have been addressed by conditions agreed between the parties.

53 For the above reasons, the appeal is upheld.

Conditions

54 The conditions are those in Exhibit 4 as amended by conditions sent by email to the Court on 6 July 2005. Of importance are the Deferred Commencement Conditions 1 and 2:

1. Geotechnical Report and Peer Review

A site-specific geotechnical report prepared by a suitably qualified Geotechnical Engineer shall be submitted to Council. This report shall detail subsurface conditions, proposed methods of excavation, shoring or pile construction, the construction of retaining walls, vibration emissions and any possible damage which may occur to adjoining or nearby premises, and the measures that are to be implemented to prevent or minimise structural damage to nearby premises. This report may be based upon the Geotechnique report submitted by the applicant, however at least one additional borehole must be drilled near the boundary adjacent to the house at No. 30 Henry Street and must prove the bedrock for a minimum of 1 metre below the shoring pile terminal depth. Further investigations must also be undertaken to verify the location and extent of any footings of the house at No 30 Henry Street, which encroach on the subject site, in the vicinity of the proposed driveway.

Upon completion of this report, a further independent qualified Engineer or consultant shall be engaged to provide a review and assessment of the report. The peer review report shall be submitted to Council.

2. Shoring wall design

A design by a suitably qualified structural engineer for the proposed shoring wall for the driveway, adjacent to the boundary with No 30 Henry Street, shall be submitted to Council. Such design is to comply with the recommendations of the geotechnical report referred to in Condition 1. The design shall specify the minimum distance from the boundary for safe construction, and, considering this and the total width of the shoring wall with shotcrete finish, the finished drive way width. The northern wall of the existing dwelling on the land is to be underpinned and modified by arched openings as per the architectural plans. The minimum distance between the northern wall of the existing dwelling and the southern face of the retaining wall near the boundary with No 30 Henry Street shall not be less than 3.05m.

Orders

55 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No D/2002/ 321 lodged with the respondent council on 20 May 2002 to demolish outbuildings and part of the existing building, remediate, excavate, alter and add to the existing dwelling to provide three (3) x two-storey attached dwellings over a basement car parking to accommodate three (3) cars, associated works, to strata subdivide the building into 3 lots at the land, at Lot 15, DP 921216, being No 28 Henry Street, Leichhardt is approved subject to Conditions 1 to 66 in Annexure A.

3. Costs are reserved.

4. The exhibits with the exception of Exhibits A, B, C, D, E, F, G, 2, 3, 4 and 8 are returned.

S J Watts

Commissioner of the Court

Actions

Download as PDF Download as Word Document

Citations

City Forum Pty Limited v Leichhardt Council [2005] NSWLEC 369

Cases Citing This Decision

Cases Cited

Statutory Material Cited

CITATION:	City Forum Pty Limited v Leichhardt Council [2005] NSWLEC 369
PARTIES:	APPLICANT: City Forum Pty Limited RESPONDENT: Leichhardt Council
FILE NUMBER(S):	11084 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Vehicular access Lack of information and Other matters including streetscape form of development and internal amenity
LEGISLATION CITED:	Leichhardt Local Environmental Plan 2000, (LEP2000) State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55) Leichhardt Development Control Plan 2000, (DCP2000) Draft Amendment 10 to Leichhardt Development Control Plan 2000, (Amendment 10) Development Control Plan No 38 (Waste Minimisation, Removal and Storage), (DCP38) Development Control Plan No 42 - Land Contamination, (DCP42) Environmental Planning and Assessment Act 1979, ss 79C and 97
DATES OF HEARING:	13/12/2004 and 05/07/2005
DATE OF JUDGMENT:	07/08/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, barrister instructed by Mr P Saab, solicitor SOLICITORS: Macquarie Lawyers RESPONDENT: Mr G A Green, solicitor SOLICITORS: Pike Pike and Fenwick