Classic Developments Pty Limited v Sutherland Shire Council

[2004] NSWLEC 515

Land and Environment Court

of New South Wales

CITATION:

Classic Developments Pty Limited v Sutherland Shire Council [2004] NSWLEC 515

PARTIES:

APPLICANT
Classic Developments Pty Limited

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10659 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Town House Development - Floor Space Ratio - Streetscape - Overshadowing - Privacy

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire LEP 2000
Draft Sutherland Shire LEP 2004

CASES CITED:

DATES OF HEARING:

13/09/04

EX TEMPORE
JUDGMENT DATE :

09/13/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Kondilios, solicitor
SOLICITOR
Maddocks

RESPONDENT
Mr R. O'Gorman-Hughes, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 September 2004

10659 of 2004 Classic Development Pty Limited v Sutherland Shire Council

JUDGMENT

The following decision and orders were handed down (orally) extempore on 13 September 2004. Some minor alterations and additions have been made in the interests of clarity and completeness.

1 This matter concerns a s. 97 appeal against a refusal of a development application for the demolition of an existing house and construction of 8 x 2 storey town houses at 20-22 High Street, Caringbah.

2 Initially a number of issues were identified, however subsequently conferencing by the parties has resulted in a number of amendments to the proposal, so that the parties now agree to consent orders.

3 One of the original issues concerned the height of the development and the consequential shadowing effects on the adjoining property. This was also the source of objection for the owner of No. 24 High Street. However the amended proposal has now been lowered approximately 950mm, which Council’s Environmental Assessment Officer, Mr P Brooke says results in minimising the solar access impacts to an acceptable level and the shadow diagram in Exhibit “E” confirms this.

4 Another issue concerned the possible isolation of the adjoining property, (No. 24). However, evidence has been provided which confirms this owners reluctance to amalgamate. On this basis, I accept the councils position that the application, does not warrant rejection on these grounds.

5 Another neighbour’s issue concerns the floor space ratio. This arises because the property has a floor space ration of 0.84:1, as compared to the centre of 0.7:1. However this non compliance arises because of the current method of calculating the floor space ratio by including the turning area in the basement car park. When this is excluded, the proposal complies and this is the approach adopted by council and subject to a resolution to change.

6 As the proposal complies with the preferred changes and is consistent with council’s approach to this development standard, I accept that councils submission that the SEPP 1 objection to the floor space ratio development standard in cl. 35(2) of Sutherland Shire LEP 2000, which was prepared by Mr. D. Crane and concluded that strict adherence was unnecessary and unreasonable is well founded and should be allowed.

7 I also note from Mr Brook’s assessment and the agreed conditions that a few further detail amendments are required which further improve the proposal.

8 I also not that the original application was notified and 3 objections received. The amended application was also notified, together with the consent orders application, but there are no further objections.

Orders

9 I now consider the amended plans are acceptable and the consent orders should be granted.

10 The orders of the Court by consent are:

1. The appeal is upheld.

2. The SEPP 1 Objection to the floor space ratio development standard in cl. 35(2) of the Sutherland Shire LEP 2004 is allowed.

3. Development consent is granted to DA 03/0908 for the demolition of an existing dwelling and construction of 8 townhouses at 20-22 High Street, Caringbah in accordance with the conditions in Annexure “A”.

4. The exhibits may be returned except for A, B, C, 1 and 3.

5. The parties to pay their own costs.

R Hussey

Commissioner of the Court

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