Gordon v Leichhardt Council - [2007] NSWLEC 103

Land and Environment Court

of New South Wales

CITATION: Gordon v Leichhardt Council [2007] NSWLEC 103

PARTIES:
APPLICANT
Jennifer M Gordon
RESPONDENT
Leichhardt Council

FILE NUMBER(S): 10286 of 2006

CORAM: Murrell C

KEY ISSUES: Development Application :- extensions to existing dwelling and erection of retreat on rear boundary, impacts on adjoining properties - privacy, overlooking, bulk scale and height, building location zone, use of retreat, drainage easement.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

DATES OF HEARING: 9/08/06, 1/12/06 and written submissions on conditions 2/12/06

DATE OF JUDGMENT:
2 March 2007

LEGAL REPRESENTATIVES:
APPLICANT
Ms J. Gordon, litigant in person
with her Agent Mr Kingsbury-Carr
RESPONDENT
Ms J. Walsh, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

2 March 2007

10286 of 2006 Jennifer M Gordon v Leichhardt Council
JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act (“the Act”) against the refusal of Leichhardt Council of a development application for alterations and additions to an existing dwelling and for a studio to be constructed at the rear of the subject site.

Site and environs

2 The site is known as No. 18 Frazer Street, Lillyfield and has an area of some 454 sq m. It is on the eastern side of the street and is rectilinear in shape with a front and rear boundary of approximately 7.7 m and side boundaries of about 60 m. The site slopes from Frazer Street to the rear and there is a difference of some 4.5 m. At the rear of the site there is a townhouse development that gains access from Bayside Street. Adjoining the subject site on the northern boundary there are two properties: No. 6 Bayside Street is located adjacent to the rear half of the subject site and its rear boundary is about in line where the existing dwelling on the subject site extends to; and No. 20 Frazer Street is located next door to the existing dwelling on the subject land.

3 The subdivision pattern as shown in the attached zoning extract is varied ranging from the large lot where the townhouses are erected at the rear to the properties to the north that are about half the size of the subject site. To the south the lots are more consistent being relatively narrow and deep and with no rear access and a similar size and configuration to the subject property.

4 The existing dwelling on the site is a single storey Californian bungalow setback approximately 7.5 m from Fraser Street with carparking provided within the front setback area. Within the vicinity of the site there is a variety of development ranging from the townhouses at the rear to 2-storey dwellings opposite with garages built to the to the street. The houses to the south are a similar style to the subject property.

5 The dwelling at 6 Bayside is…

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.

Continue reading Gordon v Leichhardt Council

Details

AGLC: Gordon v Leichhardt Council [2007] NSWLEC 103
Case: [2007] NSWLEC 103
Decision Date: 2 March 2007

CaseChat Overview and Summary

In this case, the applicant, Jennifer Gordon, appealed against the Leichhardt Council's refusal of a development application for alterations and additions to an existing dwelling and for a studio to be constructed at the rear of the subject site located at No. 18 Frazer Street, Lillyfield. The key issues included privacy impacts from additions to the existing dwelling, the use of the retreat, and the imposition of conditions to mitigate any adverse impacts. The legal issues the court had to decide were whether the proposed development was consistent with the objectives of the Leichhardt Local Environmental Plan 2000 and the Leichhardt Development Control Plan 2000, and whether the development application should be approved subject to conditions. The court found that the amended plans addressed a significant number of the council's issues initially raised, and the court assessed the amended application on its merits under section 79 C of the Environmental Planning and Assessment Act 1979. The court concluded that the proposed development must also be assessed on its merits and whether the impacts on adjoining properties were reasonable in the light of the objectives of the LEP and DCP, including the Building Location Zone (BLZ). The court decided that the balcony should be reduced in depth to a maximum of one metre from the face of the wall to reasonably maintain the visual and aural privacy for No 6 Bayside St. The court also agreed with the council's evidence that the rear studio was satisfactory in terms of its size and design, provided a condition was attached to the consent for its use. Finally, the court decided that the issue of a need for the applicant to obtain a drainage easement would be dealt with as a deferred condition and would be considered in an application under s40 of the Act at a later stage.

Final orders:
1. The appeal in respect of the property known as No. 18 Frazer Street, Lilyfield is upheld.
2. The development application submitted to Leichhardt Council and as amended is determined by the granting of a deferred commencement consent and subject to the conditions contained in Annexure ‘A’.
3. The exhibits with exception of Exhibits 11 and K are returned to the parties.

Orders