Cox v Newcastle City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cox v Newcastle City Council [2020] NSWLEC 1081
Hearing dates:	22-23 January 2020
Date of orders:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1)   The appeal is dismissed; (2)   Modification application DA 2015/0298.02 for construction of external additions to the ground floor porch and addition of two Velux roof windows at 65 Frederick Street, Merewether (Lot 200 DP 88297065) is refused. (3)   The exhibits are returned with the exception of Exhibits 1 and 3.
Catchwords:	MODIFICATION APPLICATION – Heritage Item – whether the works have a detrimental impact on the significance of the heritage item – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Newcastle Local Environmental Plan 2012 Uniform Civil Procedure Rules 2005
Cases Cited:	Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Texts Cited:	Newcastle Development Control Plan 2012
Category:	Principal judgment
Parties:	Jason Cox (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: J Cox (Litigant in person) (Applicant) A Pickles SC (Respondent)   Solicitors: Newcastle City Council (Respondent)
File Number(s):	2019/133476
Publication restriction:	No

Judgment

1. COMMISSIONER: The Applicant seeks consent for alterations and additions to the existing building at 65 Frederick Street, Merewether. Approval is sought via a modification application pursuant to s 4.55(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The alterations consist of the construction of external additions to the ground floor verandah comprising:

• Construction of a masonry surfboard store to the southern end of the verandah;

• An enveloping timber screen north of the surfboard store;

• A ‘hit and miss’ brick screen to the north of the entry door that extends to the living room doors; and

• A timber screen on the northern edge of the verandah to the driveway

• (Statement of Environmental Effects, Class 1 Application, filed 30 April 2019)

2. The application was refused by Council and the Applicant appeals that refusal pursuant to s 8.9 of the EPA Act.

3. The appeal was subject to mandatory conciliation on 22 January 2020 (s 34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act).

4. Council maintains that the development warrants refusal on the following grounds:

• That the proposed alterations and additions have an unreasonable detrimental impact on the subject building, which is listed as a heritage item in the Newcastle Local Environmental Plan 2012 (LEP 2012);

• With respect to the proposed installation of two Velux roof windows, the application does not provide sufficient information for Council to adequately assess their suitability.

Site and locality

5. The subject property is known as 65 Frederick Street, Merewether (Lot 200 DP 88297065). It contains a single dwelling which is listed as a local…