Furness v Woollahra Council

[2004] NSWLEC 640

Land and Environment Court

of New South Wales

CITATION:	Furness v Woollahra Council [2004] NSWLEC 640
PARTIES:	APPLICANT G Furness RESPONDENT Woollahra Council .
FILE NUMBER(S):	11086 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification application Consent orders .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Paddington Development Control Plan .
CASES CITED:
DATES OF HEARING:	16 November 2004
EX TEMPORE JUDGMENT DATE :	11/16/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms R Spiegel, solicitor Spiegel & Associates RESPONDENT Ms J Hewitt, solicitor Michell Sillar

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

16 November 2004

04/11086 G Furness v Woollahra Council

JUDGMENT

1 Commissioner: This an appeal pursuant to s 96 of the Environmental and Assessment Act 1979 (the Act) against the refusal by Woollahra Council (the council) to agree to the deletion of conditions to the consent granted by the council to Development Application 1103/2003 for alterations and additions to a dwelling and the demolition of a single garage and to construct a new double garage at 9 Duxford Street, Paddington (the site).

2 The application sought the deletion of two clauses of the conditions.

3 The first of those clauses would have permitted, if deleted, additional works to the facade of the house facing Duxford Street

4 By agreement between the parties, that element of the application is no longer pressed. That is of some importance in considering the two objections which were lodged with the council against the s 96 application.

5 The second of the conditions sought to be deleted is one which restricted the opening to the garage to a width of 3.3 m – the council having approved a double garage but wishing, by virtue of this condition, to restrict the entrance servicing it to 3.3 m.

6 The council has now agreed to the deletion of that condition.

7 As a consequence, the garage door, as originally proposed, will be constructed 5.2 m wide.

8 The relevant provisions of the Paddington Development Control Plan (the DCP) are contained in 5.2.6 which deals with on-site vehicle parking, garages and the like.

9 A number of the provisions of the DCP are relevant. The particular objective to which I need to turn my attention is one which requires that designs of garages, carports and fences and the like are sympathetic in their massing, bulk and scale to elements of a similar nature within the conservation area.

10 In company with the legal representatives of the parties, I walked the block of Suffolk Lane which contains the site. I am satisfied that style of building presently constructed in this portion of the lane can only be described as eclectic and undistinguished. There is certainly no conservation imperative that would act to prevent the garage door width proposed on the site. Indeed, that which the applicant proposes is consistent with the garage door immediately adjacent to the north.

11 As a consequence, I am satisfied that there is no reason arising out of the DCP that would prevent deletion of this condition.

12 I turn to consider matters raised by the objectors who oppose the s 96 modification application.

13 Two letters are in evidence before me. These objectors were contacted and informed of the hearing; provided with the opportunity of appearing and of providing me with further material in support of their objections. They have not attended or provided further material.

14 I have been provided with copies of the letters which Ms Hewitt, the solicitor for the council, has provided to the objectors. These letters set out the terms of the proposed consent orders. This satisfies the requirements of cl 9 of the Consolidated Practice Direction for notifying objectors of the terms of proposed consent orders.

15 I am therefore satisfied that that element of the Practice Direction has been satisfied.

16 The substance of the objections is effectively to the changes to the façade. Both the letters of objection specifically mentioned that aspect of the proposal. These objections are no longer relevant as this proposed change has been abandoned.

17 The second of the objections – that from Mr Cooper – also objects to an area which he describes as the “upstairs studio”.

18 In that regard, I infer that he is referring to a proposed loft extension above the garage – a loft extension which would have been permissible under the DCP but is no longer proposed and was removed prior to granting of the original development application consent.

19 As a consequence, I am satisfied that there is no basis for refusing the application on any ground raised in the objections lodged by members of public (which I am required to have regard to pursuant sections of s 79C of the Act).

20 Therefore, the appeal will be upheld; the s 96 application for modification of the development consent will be granted with respect to the deletion of condition 3 of the existing consent and, as agreed between the parties, there will be no order as to costs.

Tim Moore
Commissioner of the Court