Derums v Leichhardt Council - [2010] NSWLEC 1366

Land and Environment Court

of New South Wales

CITATION: Derums v Leichhardt Council [2010] NSWLEC 1366

PARTIES:
APPLICANT
Yanis Derums
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 10272 of 2010

CORAM: Brown C

KEY ISSUES: APPEAL :- modification of existing approval for alterations and additions to an existing dwelling - roof form/bulk and scale/ FSR - overshadowing - loss of privacy - breach of Building Code of Australia

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Pafburn v North Sydney [2005] NSWLEC 444

DATES OF HEARING: 12 November 2010

EX TEMPORE JUDGMENT DATE: 12 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Dr S Berveling, barrister
RESPONDENT
Ms J Walsh, solicitor
SOLICITORS
Pikes Lawyers

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

12 November 2010

10272 of 2010 Yanis Derums v Leichhardt Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Leichhardt Municipal Council (the council) of an application to modify an approval for alterations and additions to an existing dwelling at 7A Johnston Street Balmain East. The Land and Environment Court granted the approval for the alterations and additions on 17 September 2004, subject to deferred commencement conditions. On 9 December 2004 the council issued an operational consent; the deferred commencement conditions having been satisfied.

2 The appeal was subject to a conciliation conference on 12 November 2010 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceedings forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conferences held on 26 August 2010 and 1 October 2010 pursuant to s 34(4)(b)(ii).

3 The modification application seeks a number of modifications although not all modifications are opposed by the council. The areas of contention relate to the modification of the second level floor plan for the rear module of the proposed residential development. The modification sought to change the roof form, increase the floor area by 6 sq m and reconfigure the internal space. The contentions raised by the council relate to:

Roof form/bulk and scale/ FSR

4 The concern over the bulk and scale amended roof form relates to the upper most level on the western elevation where the previously approved roof form springs from a height just above the upper floor level, whereas the proposed new roof form springs from a height of around 1.9 m above the upper floor level. The roof form above the 1.9 m wall angles away from the wall consistent with but at a greater height near the western boundary than the approved roof form. The modification provides a greater setback from the building alignment of…

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: [2010] NSWLEC 1366
Decision Date: 12 November 2010

CaseChat Overview and Summary

The case of Derums v Leichhardt Council involved an appeal against the Leichhardt Municipal Council's refusal to modify an existing approval for alterations and additions to a dwelling at 7A Johnston Street, Balmain East. The applicant, Yanis Derums, sought modifications to the existing approval, which had been granted on 17 September 2004, and an operational consent was issued on 9 December 2004. The main areas of contention related to the modification of the second level floor plan for the rear module of the proposed residential development, including changes to the roof form, an increase in floor area by 6 sq m, and a reconfiguration of the internal space.

The key legal issues before the court were whether the modifications would result in an unacceptable increase in bulk and scale, an unacceptable increase in the floor space ratio (FSR), unacceptable overshadowing, an unacceptable loss of privacy, and a breach of the Building Code of Australia (BCA). The court assessed these issues against the relevant provisions of the Environmental Planning and Assessment Act 1979 and the Local Environment Plan 2000, which set out the maximum FSR of 0.7:1.

The court found that the proposed modifications would not result in an unacceptable increase in bulk and scale or FSR, as the additional floor space of 6 sq m would have a relatively small impact when viewed from surrounding residential properties. The court also found that the additional overshadowing was minimal and would not warrant the refusal of the application. The issue of loss of privacy from the slot windows in the proposed bedroom and en-suite towards 64 Darling Street was addressed through a condition to address the privacy issues to these windows. The court further found that the non-compliance with the BCA could be addressed through alternative solutions based on satisfaction with the relevant objectives for the specific BCA requirement.

The court granted the appeal and approved the application to modify the existing approval for alterations and additions to the dwelling, subject to certain conditions. These conditions included amending the width of the westernmost skylight, prohibiting any lift overrun structure protruding above the building, making the two skylights on the west elevation part of the roof openable to permit ventilation, and installing obscure glazing and casement construction for the two windows on the west elevation at the second level to avoid overlooking towards 64A Darling Street. The exhibits were returned, and the applicant's appeal was upheld.

Orders