Drivas v Leichhardt Municipal Council
[2013] NSWLEC 1192
•01 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Drivas v Leichhardt Municipal Council [2013] NSWLEC 1192 Hearing dates: 1 October 2013 Decision date: 01 October 2013 Jurisdiction: Class 1 Before: Brown C Decision: On submission of plans and agreed conditions that reflect the matters set out in the judgment, orders can be made in chambers that state:
1. The appeal is upheld.
2. Modification application number M/2013/52 to modify development consent number D/2011/425 for the purposes of the demolition of all existing structures and the construction of three dwellings and the subdivision of these three dwellings at 91 Louisa Road, Birchgrove is determined by approving the modifications, subject to the consolidated conditions set out in Annexure A.
3. The exhibits other than exhibits 1A, B and F can be returned.
Catchwords: MODIFICATION: original approval for demolition of all existing structures and the construction of three new dwellings and the three lot subdivision modified by additional excavation for pool, deletion of view corridor between dwellings and increased carport width - further modifications address concerns of council at hearing - damage to adjoining properties Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Leichhardt Local Environmental Plan 2000Category: Principal judgment Parties: Anthoula and Helen Drivas (Applicants)
Leichhardt Municipal Council (Respondent)Representation: Mr C McFadzean, solicitor (Applicants)
Ms R McCulloch, solicitor (Respondent)
Solicitors
Shaw Reynolds Lawyers (Applicants)
Pikes & Verekers Lawyers (Respondent)
File Number(s): 10521 of 2013 Publication restriction: No
Judgment
COMMISSIONER: This is an appeal against the refusal of an application to modify the approval of Development Application Number D/2011/425 granted under s 34 of the Land and Environment Court Act 1979 on 3 April 2012 for the demolition of all existing structures and the construction of three new dwellings and the three lot subdivision of these dwellings at 91 Louisa Road, Birchgrove.
The principal modifications in the appeal include:
(1) Additional excavation at the basement level to accommodate a pool and an associated deck area.
(2) Carports widened and lengthened to enable the parking of two vehicles.
(3) The 900 millimetre setback to the western boundary deleted to give the appearance of attached dwellings rather than detached dwellings.
(4) Internal floor plans reconfigured to accommodate the changes mentioned above.
The modifications were opposed by the council and local residents on the basis that:
(1) The modifications were not substantially the same as that which was approved under DA D/2011/425.
(2) The modifications will have an unacceptable impact on the streetscape of Louisa Road, Birchgrove because the carports are significantly bulkier and the view corridors between the dwellings have been lost, and
(3) The modifications will have an unacceptable visual impact from the foreshore by way of additional bulk, particularly in relation to the adjoining heritage item at 85 Louisa Road.
Immediately prior to the hearing the applicant proposed amendments to address the concerns expressed by the council and the residents. The amendments provided for the mirror reversing of the dwellings to allow the reestablishment of the view corridor between the dwellings and still allow the parking of two cars for each dwelling but without obscuring the view corridor. Other consequential amendments were agreed to address privacy and reduce the bulk of dwellings from Louisa Road and the foreshore.
The proposed amendments were explained to the local residents at the site inspection on the morning of the first day of the hearing, in addition to the council's expert town planner, Ms Deborah Laidlaw. A number of additional changes were made at this time to address matters such as potential overlooking brought about by the reconfiguration of the floor plans.
When the appeal recommenced in Court, the council submitted that their concerns had been addressed by the amendments. As I understand, the concerns expressed by the residents over bulk, loss of view corridors and on street parking were substantially satisfied.
A remaining issue with the residents on either side of the site was the potential damage to their dwellings by the additional excavation of the pools at the basement level. One owner and a representative of the other owner indicated that damage had already occurred to their properties from excavations to date. In response, I note that both properties are identified in condition 17 of DA D/2011/425 as being subject of a dilapidation report which provides the ability to identify problems and potentially rectify any damage caused by the construction of the proposed development. While damage to adjoining properties is to be avoided, conditions 17 and 18 satisfactorily address any potential damage to these properties.
With an understanding of the amendments to the modification application plans, I am satisfied that the proposed modification is substantially the same as that which was approved under DA D/2011/425 and notwithstanding the breaches of the development standards in Leichhardt Local Environmental Plan 2000, and the requirements in Leichhardt Development Control Plan 2000, the development is suitable in its context, including its relationship with the heritage item at 85 Louisa Road.
I agree that the amendments discussed on the morning of the hearing should be included in amended plans and the conditions amended to reflect these plans and any other specific areas identified as part of the discussion.
On submission of these plans and agreed conditions orders can be made in chambers that state:
(1) The appeal is upheld.
(2) Modification application number M/2013/52 to modify development consent number D/2011/425 for the purposes of the demolition of all existing structures and the construction of three dwellings and the subdivision of these three dwellings at 91 Louisa Road, Birchgrove is determined by approving the modifications, subject to the consolidated conditions set out in Annexure A
(3) The exhibits other than exhibits 1, A, B and F can be returned.
___________
G T Brown
Commissioner of the Court
Decision last updated: 14 October 2013
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