Deller Homes v Sutherland - [2004] NSWLEC 66

Land and Environment Court

of New South Wales

CITATION: Deller Homes v Sutherland [2004] NSWLEC 66

PARTIES:
Deller Homes Pty Ltd
Applicant
Sutherland Shire Council
Respondent

FILE NUMBER(S): 11359 of 2003

CORAM: Roseth SC

KEY ISSUES: Development Application :- medium density housing
adaptable housing

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 04/03/2004 to 05/03/2004

EX TEMPORE
JUDGMENT DATE : 03/05/2004

LEGAL REPRESENTATIVES:
Mr S Kondilios, solicitor
Maddock Lawyers
Mr R O'Gorman-Hughes, solicitor
Sutherland Shire Council

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11359 of2003

Roseth SC

5 March 2004

Deller Homes Pty Ltd

Applicant

Sutherland Shire Council

Respondent

1 This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application to demolish the existing four dwellings and erect and subdivide under Strata title a development consisting of twelve townhouses on lots 2, 3, 4 and 5 DP 24110, known as 39-45 Manchester Road, North Gymea.

2 The site is on the southwest corner of Manchester Road and Wolstenholme Avenue. It encompasses four allotments, each of which now supports a detached house. The surrounding area is a mixture of detached and medium density housing. The two adjoining properties to the south are medium density, while the adjoining property to the west is a detached house.

3 The applicant proposes to demolish the existing houses on the site and to construct a medium density development comprising twelve two-storey townhouses in four buildings over basement parking. The buildings are sited parallel to Manchester Road in an east-west direction. Between the two rows of buildings is a pedestrian access corridor. Vehicular entry to the basement carpark is from Wolstenholme Avenue. Pedestrian entry is from Manchester Road.

4 The applicant lodged the development application in July 2002. Following notification, the council received seven objections. The council’s Architect advised the assessment planner that “the architectural issues have now been sufficiently addressed”. In October 2003 the council’s planning staff reported on the application to the Independent Hearing and Assessment Panel and recommended approval. The Panel did not endorse the recommendation and recommended refusal. The council accepted the Panel’s recommendation and refused the application in November 2003. The applicant lodged the appeal in November 2003.

5 Local Environmental Plan 2000 (the LEP) zones the site Residential 2(b), a zone in which townhouses and villa houses are permissible to the maximum Floor Space Ratio (FSR) of 0.7:1. A draft Local Environmental Plan, referred to as the People’s LEP, has been submitted to the Department of Infrastructure, Planning and Natural Resources. The Townhouses and Villa Houses in 2(b) and 2(c) Zones Development Control Plan (the DCP) establishes detailed controls.

6 The council submitted a Statement of Issues detailing concerns under four main headings:

· Are the design of the proposal in the streetscape, its orientation and its internal amenity acceptable?

· Is the impact on the privacy of the western…

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 66
Decision Date: 03/05/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Deller Homes Pty Ltd applied for an appeal against the Sutherland Shire Council's refusal of a development application to demolish the existing four dwellings and erect twelve townhouses on four lots at 39-45 Manchester Road, North Gymea. The site is on the southwest corner of Manchester Road and Wolstenholme Avenue. The applicant proposed to construct a medium density development consisting of twelve two-storey townhouses in four buildings over basement parking, with the buildings sited parallel to Manchester Road in an east-west direction. The main issues before the Court were whether the design of the proposal was acceptable in terms of streetscape, orientation and internal amenity, whether the impact on the privacy of the western adjoining property was acceptable, whether the bulk and scale were acceptable and if the additional floor space was justified, and whether the adaptable housing was satisfactory.

The Court held that the proposal's appearance in the streetscape was appropriate in the streetscape and that the east-west orientation of the project was not a reason for refusal. Regarding the impact on the western neighbour, the Court held that overlooking would not occur. As for the bulk, scale and FSR, the Court held that the proposal's FSR was not a reason for refusal. Lastly, the Court found that the two adaptable dwellings were satisfactory.

The appeal was upheld, and the development application was granted subject to the conditions in Annexure A. The exhibits were returned except Exhibits 10, A, B, G and J.

Orders