Eckert, Michael P v Ashfield Municipal Council
[2007] NSWLEC 151
•26 March 2007
Land and Environment Court
of New South Wales
CITATION: Eckert, Michael P v Ashfield Municipal Council [2007] NSWLEC 151 PARTIES: APPLICANT:
Michael Patrick Eckert
RESPONDENT:
Ashfield Municipal CouncilFILE NUMBER(S): 10981 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Additions to dwelling house:
Character of the proposed developmentLEGISLATION CITED: Ashfield Local Environmental Plan 1985, (ALEP)
Ashfield Development Control Plan No 1 - Dwellings in Residential Zones, (DCP1)
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 17 January 2007
DATE OF JUDGMENT:
26 March 2007LEGAL REPRESENTATIVES: Mr M P Eckert, litigant in person RESPONDENT:
Mr S H Patterson, solicitor
SOLICITORS:
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
26 March 2007
10981 of 2006 - Michael Patrick Eckert v Ashfield Municipal Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ashfield Municipal Council (the council) to refuse a development application to erect a new addition to a dwelling house at Lot 1, DP 194118, being No 40 Joseph Street, Ashfield.
2 I visited the land in company with the parties on the morning of the hearing and directions were given. Amended plans were prepared that met the requirements of both parties.
3 I have concluded that the application is satisfactory in its context and when considered under s 79C of the Environmental Planning and Assessment Act 1979 and consent is granted.
The land
4 The land is situated on the eastern side of Joseph Street, to the north of a public pathway. The land has a frontage to Joseph Street of 15.075m, to the pathway of 29.995m, a rear eastern boundary of 15.150m and a northern boundary abutting No 38 Joseph Street of 30.05m and an area of some 453m2.
5 The land is not located in a heritage conservation area, however there is a heritage item at No 54 Joseph Street, Ashfield, to the south of the land. Ashfield shopping centre is located about 320 metres to the north.
Relevant planning controls
Ashfield Local Environmental Plan 1985, (ALEP)
6 Under the provisions of the ALEP the land is zoned 2(a) Residential and the proposal is permissible with consent. There are no development standards that would apply to the erection of dwelling houses.
7 The aims and objectives of the ALEP under Clause 2 are:
(a) to promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment;
(b) to retain and enhance the identity of Ashfield area derived from its role as an early residential suburb with local service industries and retail centres; and containing the first garden suburb of Haberfield, (now listed as part of the National Estate.)
8 The proposed development is subject to the requirements of DCP1 and relevant are:
- 1.4(ii) Objectives of DCP1 for new development are to have a high standard of urban design; and
Part 3.4.1(iv) Building appearance and neighbourhood character.
9 The proposal should not be in strong contrast with the positive and characteristic features of nearby buildings.
The proposal and its history
10 Development application No 2005/328.1 for alterations and additions to a single-storey dwelling comprising demolition of a bedroom, bathroom, toilet, laundry and kitchen and the erection of a two-storey addition to the rear of the existing single-storey building, comprising kitchen, family room, bathroom, laundry, bedroom, study, wardrobe and en-suite at the land. The development application was lodged with the respondent council on 23 December 2005.
11 The single pitched skillion roof is separate from the existing roof over the front part of the existing building. The roof over the addition slopes down towards the front and there is proposed a box gutter at the base of the new wall where it abuts the existing roof.
Notification
12 The application was notified from 9 January 2006 until 24 January 2006 to nearby owners and occupants and the council received one objection from the owner of 1 Pyrmont Street, Ashfield, in relation to loss of sunlight to living room windows on the northern side of the objector’s house.
13 On 1 March 2006, the council wrote to the applicant advising him that the additions need to be redesigned, as there were issues with the proposed addition fitting into the neighbourhood.
14 On 3 July 2006 the applicant attended a meeting at the council’s offices with council’s heritage advisor, Ms H Wilson and Mr W Daskalopoulos the council's building surveyor. The applicant was advised at that time that the proposed design was not appropriate for the neighbourhood.
The council’s decision
15 By notice dated on about 21 November 2006, the council refused the application for the following reasons:
1. The development does not meet the objectives of Clause 2 of
Ashfield Local Environmental Plan, as the proposed addition does not promote the orderly development of the local government area of Ashfield in a manner consistent with the need to protect the built environment and retain and enhance the identity of Ashfield.
2. The development does not comply with the objectives in Part 1.4(ii) of Ashfield Development Control Plan No 1 as the addition does not achieve a high standard of urban design and does not contribute to the established character and residential amenity of Ashfield's housing neighbourhood.
3. The building design and roof form is visible from Joseph Street, Pyrmont Street and the public pathway to the south. The development is in strong contrast with the positive and characteristic features of neighbouring properties and the streetscape. The development therefore does not comply with the objectives of Part 3.4.1(iv)
of Ashfield DCP No 1.
The hearing
16 The appeal was filed on 17 October 2006.
17 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr J Hall, owner of No 1 Pyrmont Street, Ashfield; and
· Mr M Mercanuto, Manager Building Services, Ashfield Council.
18 On behalf of the applicant Mr J Mitchell, architect, gave evidence.
The issues
19 On 15 November 2006 the council had filed a statement of issues:
1. The proposed development should not be approved as it does not comply with the general aims set out in clause 2 of the Ashfield Local Environmental Plan 1985 ("ALEP 1985").
- Particulars
- Development Control Plan No 1 - Dwellings in Residential Zones
- Particulars
- Particulars
- Precedent
- Public Interest
5. The proposed development should not be approved, as it is not in the public intent.
20 The character of the proposed development in its context was the salient issue.
Amended plans
21 During the course of the hearing the applicant agreed to amend the plans such that a hipped roof would cover the rear additions and the wall height would be reduced. The pitch of the roof would match the pitch of the existing dwelling of around 30 degrees slope and the roof would be clad in Colorbond corrugated steel sheeting of mid-grey colour.
22 This amendment was reviewed by Mr Hall, the neighbour, who was content that it would reduce the extent of shading likely to impact on his dwelling and the council representative agreed that such a proposal would be more in keeping with the area.
23 The amended architectural drawings and shadow diagrams were advertised in accordance with the council’s policy and the matter reviewed by the Court in that light.
The evidence and findings
Character
24 With the amendments proposed by the applicant during the hearing, the party’s were agreed that the issue of character had been successfully resolved. I agree and I am satisfied that the amended proposal may be granted consent subject to conditions.
25 For the above reasons, the appeal is upheld.
Conditions
26 The conditions are those in Exhibit 5 as amended to reflect the agreement reached on site and the orders of the Court issued 17 January 2007.
Orders
27 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 2005/328 lodged with the respondent council on 23 December 2005 for alterations and additions to a single dwelling house, at Lot 1, DP 194118, being No 40 Joseph Street, Ashfield, is approved subject to Conditions A1 to I2 in Annexure A.
3. The exhibits except for Exhibits C, D, 1 and 5 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
0
0
3