Fontana and La Scala v Leichhardt Council

[2006] NSWLEC 323

Land and Environment Court

of New South Wales

CITATION:	Fontana and La Scala v Leichhardt Council [2006] NSWLEC 323
PARTIES:	Applicant: Anthony Dalla Fontana and John Ross La Scala Respondent: Leichhardt Council
FILE NUMBER(S):	11442 of 2005
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- s96 application; additional car space in fron of building in conservation area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	09/06/2006
DATE OF JUDGMENT:	06/20/2006
LEGAL REPRESENTATIVES:	Applicant: Mr A Pickles, barrister instructed by Ms A McDonald, solicitor of Heitman & Co Lawyers Respondent: Ms E Ranken, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

20 June 2006

11442 of 2005 Anthony Dalla Fontana and John Ross La Scala v Leichhardt Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Leichhardt Council (the council) of an application under s96(2) of the Environmental Planning and Assessment Act 1979 to modify the consent DA/2004/442 issued by the council on 13 April 2005 by deleting Condition 2(a) ie:

The proposed subdivision shall be modified to ensure the subdivision pattern of the area is maintained and the proposed step in the subdivision is deleted. The proposed boundary line to create the new allotments shall be realigned so as to have equal front and rear boundaries for the allotments. No 37 shall have a frontage of 7.3m and No 37a a frontage of 7.61m.
and to approve an additional on-site parking space.

2 Subsequently the council approved the deletion of Condition 2(a), but not the car space. The appeal is against the refusal to allow the additional car space.

3 The site is on the northern side of Marlborough Street, between Cromwell and Norton Streets. A Norfolk Island Pine stands within the front setback. Development consent DA/2004/442 approved the subdivision of the land, the renovation of the existing dwelling and the construction of a new dwelling. The step in the subdivision to which Condition 2(a) refers was intended to accommodate a second parking space. By reinstating the step, the applicant also intends to provide a second parking space.

4 The immediate locality comprises single and two-storey detached houses on narrow allotments. The area is a conservation area.

5 Leichhardt Local Environmental Plan 2000 (LEP 2000) zones the site residential and establishes the Conservation Area within which the site is located. Development Control Plan 2000 (DCP 2000) also applies.

6 The council’s Statement of Issues raises nine issues. At the commencement of the hearing, the council’s advocate, Ms E Ranken, reduced these to the following:

· The proposal is inconsistent with the objectives in cl 13(2) of LEP 2000.

· The proposal is inconsistent with B1.3 of DCP 2000.

· The proposal is in a conservation area where the importance of the streetscape is heightened.

· The applicant should have appealed the consent under s97 of the Act instead of making an application under s96.

7 The council objects to three aspects of the application:

· Impact on the street of a car in front of a building and a window;

· An additional driveway that reduces kerbside parking capacity;

· Removal of a mature street tree.

8 The Court had appointed two experts, Ms D Laidlaw, a planning consultant; and Mr P Castor, an arborist. The council accepted Mr Castor’s findings that the proposal would not harm the existing Norfolk Island Pine in the front setback of the property. Ms Laidlaw came to the conclusion that none of the issues justified refusal of the application. Ms Ranken did not cross-examine Ms Laidlaw. The council relied on submissions to put its view to the Court.

9 I turn to the main issue, which is the streetscape impact of the car in front of a building. This is clearly not desired by B1.3 of DCP 2000, which includes a drawing with a similar parking layout marked ”X” to indicate that it is not desirable. In Ms Laidlaw’s view, however, the streetscape would not be impacted on so significantly that the proposed car space should be precluded. In other words, Ms Laidlaw accepts that there is a minor adverse impact, but she balances this against the applicant’s reasonable wish to have a car space.

10 As regards the loss of a kerbside car space against the gain of a private one, Ms Laidlaw concludes that this is acceptable. I am also inclined to that view, though I accept that this is of some disadvantage to other residents of the street who do not have on-site parking.

11 In Ms Laidlaw’s view, the loss of a mature street tree balanced against the planting of a new one, which will take some time to reach maturity is not a major issue. I accept her evidence. I note that she reached her opinion with a full understanding that the site is in a conservation area.

12 I turn to the final issue, namely that the applicant should have appealed the original consent instead of lodging an application under s96 of the Act. Ms Ranken referred me to Progress and Securities v North Sydney Council [1988] 66 LGRA 236, in which Bignold J found that it was wrong for an applicant to take up the benefit of a consent but reject the burden imposed by it, which in that case was the payment of a development contribution. I do not think this applies to the present application, where the applicant does not seek to escape a burden imposed by a consent, but rather seeks an additional benefit.

13 Given that there was no contrary evidence, and Ms Laidlaw was not cross-examined, I accept her evidence that there is no reason to refuse the application.

14 The applicant filed revised drawing to reflect changes recommended by Ms Laidlaw. The council agreed that the drawings are consistent with Ms Laidlaw’s recommendations. The parties agreed to my making orders in chambers. I therefore make the orders upholding the appeal.

Orders

1. The appeal is upheld.

2. Development Consent No: D/2004/442 issued by Leichhardt Council on 13 April 2005 is modified by amending the conditions of consent as indicated in Annexure A.

3. The exhibits are returned except Exhibits 7, A, B, C and D.

_________________
Dr John Roseth
Senior Commissioner