Hammond v Leichhardt Municipal Council - [2010] NSWLEC 1209

Land and Environment Court

of New South Wales

CITATION: Hammond v Leichhardt Municipal Council [2010] NSWLEC 1209

PARTIES:
APPLICANT
Ronite Hammond
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 10206 of 2010

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION - SUBDIVISION :- two lot subdivision on the foreshore, allotment size, suitability of the site for the development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

CASES CITED: Planit Consulting v Leichhardt Council [2008] NSWLEC 29
Segal & Anor v Waverley Council [2004] NSWLEC 363
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Maxwell James Maxwell Pty Ltd & Anor v North Sydney Municipal Council(NSWLEC,13 December 1991,unreported) Stein J

DATES OF HEARING: 10 and 11 June 2010

DATE OF JUDGMENT:
6 August 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms M Taylor
SOLICITOR
Bartier Perry
RESPONDENT
Ms J Walsh
SOLICITOR
Pikes lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

6 August 2010

10206 of 2010 Ronite Hammond v Leichhardt Municipal Council
JUDGMENT

Summary

1 The applicant seeks approval of a development application for the subdivision of a waterfront site, at Lot 11 DP 1132009, known as No. 3 Tilba Ave, Balmain, into two long and narrow (4.7m wide) allotments and; the construction of a three storey dwelling with associated parking, landscaping and swimming pool on each lot.

2 Leichhardt Municipal Council has not determined this development application so this appeal pursuant to section 97 of the Environmental Planning and Assessment Act 1979 is lodged in respect of a deemed refusal of the application under section 82(1) of the Act.

3 By way of background, it was explained to me that the site is the middle lot in a three lot subdivision approved by the Court in Planit Consulting v Leichhardt Council [2008] NSWLEC 29. In this earlier proceeding the applicant agreed to the imposition of a condition requiring the amalgamation of lots 3 and 4 and the creation of three allotments extending from the street to the waterfront, each of width of about 7.5 metres.

4 The council does not support the further subdivision of lot 11 and the erection of two new dwellings on the new lots because such development would be inconsistent with the prevailing subdivision pattern of the area and an overdevelopment of the site. In council’s assessment the development’s cumulative breaches of the relevant planning controls supports a finding that the development is just not suitable for the site. It contends that the vacant site is unconstrained and has the potential to accommodate a single dwelling, which could comply with the statutory controls of the Leichhardt Local Environmental Plan 2000 (LEP 2000) and the Leichhardt Development Control Plan 2005 (DCP). Of particular concern to the Council is the precedent that would be set by an approval of…

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.

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Details

Case: [2010] NSWLEC 1209
Decision Date: 6 August 2010

CaseChat Overview and Summary

This appeal, heard over two days in June 2010, concerns the applicant's proposal to subdivide a waterfront site into two allotments and construct two three-storey dwellings on the lots. The Leichhardt Municipal Council deemed the development application refused, prompting the applicant to appeal to the Land and Environment Court. The court was required to decide whether the proposed subdivision and built form were consistent with the objectives of the Leichhardt Local Environment Plan 2000 and the Leichhardt Development Control Plan 2005, and whether the development was suitable for the site. After considering the evidence, the court found that the proposed subdivision was inconsistent with the prevailing subdivision pattern and was an overdevelopment of the site, and therefore dismissed the appeal. The court also commented on the suitability of the proposed built form, suggesting that a single dwelling or duplex may be acceptable if certain conditions were met. The court ordered that the appeal be dismissed and the development application refused.

Orders