Hybler v Willoughby Council - [2010] NSWLEC 1215

Land and Environment Court

of New South Wales

CITATION: Hybler v Willoughby Council [2010] NSWLEC 1215
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Andrew Hybler
RESPONDENT
Willoughby Council

FILE NUMBER(S): 10349 of 2010

CORAM: Morris C

KEY ISSUES: DEVELOPMENT MODIFICATION :- Deferred Commencement

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Willoughby LEP 1994

CASES CITED: Summers v Ashfield Council [2009] NSWLEC 1276

DATES OF HEARING: 6 August 2010

DATE OF JUDGMENT:
10 August 2010

LEGAL REPRESENTATIVES: Mr M Winram, Solicitor
of Maddocks Lawyers
Mr M Jaku, Solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Morris C

10 August 2010

10349 of 2010 Hybler v Willoughby Council
JUDGMENT

1 COMMISSIONER: This is an appeal in relation to the refusal, in part, by Willoughby Council of an application made under Section 96 of the Environmental Planning and Assessment Act 1979 which sought the removal of the deferred commencement provisions of a development consent, internal alterations to the approved dwelling layout and changes to windows. The appeal relates to the deferred commencement conditions only as the Council approved that part of the application that related to the building layout and windows.

The site.

2 Number 15 Carr St, Chatswood (the site) is located on the eastern side of the roadway and has a frontage of 12.19 m, depth of 48.36 m and a total site area of 589.5 square metres.

3 Carr Street is a residential street, containing various style dwelling houses of both single and two-storey construction. The allotments on the eastern side of the street have an east-west orientation and the land falls significantly from east to west and also from north to south in the proximity of the site.

4 The site is zoned Residential 2(a) under Willoughby LEP 1995 (the LEP), is not within a conservation area and is identified as being prone to bush fire. The Willoughby Development Control Plan (the DCP) also applies to the property.

Approved Development

5 The consent to Development Application No 797/2007 authorised the demolition of an existing dwelling, and the construction of a two-storey dwelling and front fence at Lot 6 PD 978614, Number 15 Carr St, Chatswood. That consent was granted by Willoughby Council (the Council) on 14 October 2009 and was issued on the basis of a deferred commencement consent.

6 The approved dwelling comprises a two-storey component at the front of the site and a single storey component towards the rear.

7 The deferred commencement provisions require:

· The roof design for the dwelling is to be modified to remove the verandah roof area to the rear eastern portion of the dwelling, including the proposed columns supporting the verandah roof. The verandah is to be a completely open area except for a narrow eave at a maximum 400mm width.

· The RL value of the floor level of the rear single storey section of the new dwelling (56.91)…

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 Hybler v Willoughby Council

Details

AGLC: Hybler v Willoughby Council [2010] NSWLEC 1215
Case: [2010] NSWLEC 1215
Decision Date: 10 August 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Andrew Hybler sought to appeal a decision made by Willoughby Council regarding the modification of a development consent. The Council had refused, in part, an application made under Section 96 of the Environmental Planning and Assessment Act 1979, specifically seeking the removal of the deferred commencement provisions of a development consent, internal alterations to the approved dwelling layout, and changes to windows. The appeal pertained to the deferred commencement conditions only, as the Council had approved the other aspects of the application. The site in question is located at 15 Carr St, Chatswood, and is zoned Residential 2(a) under the Willoughby LEP 1995. The approved development involved the demolition of an existing dwelling and the construction of a two-storey dwelling and front fence, subject to deferred commencement provisions. The appeal sought the deletion of these conditions, which related to the single storey component of the proposed dwelling.

The key issues before the Court were whether the proposed development would adversely impact the adjoining property to the south in relation to solar access, whether the development met the intent of the Council's planning controls, and whether the deferred commencement conditions imposed by the Council were reasonable. The Court considered evidence from the owners of the adjoining properties, expert town planning evidence, and shadow diagrams to assess the impact of the proposed development on solar access. Both experts agreed that the shadow diagrams provided a true representation of the impacts of the proposed development on the adjoining property, but disagreed on the significance of the height reduction in improving solar access. The Court found that while the proposed development met most numerical standards, it failed to meet the qualitative consideration of providing 3 hours of sunlight to the living area of the adjoining dwelling as required by the Council’s DCP. The Court concluded that the amendments proposed by the Council would make a measurable improvement to the solar access and were not unreasonable.

The Court dismissed the appeal, refused the application to modify the development consent by the removal of the deferred commencement conditions, and returned the exhibits. The Court's decision was based on the need to protect the amenity of the adjoining residential property and the possibility of providing a material improvement in solar access through the height reduction of the dwelling.

Orders