Jawad v Hurstville City Council

[2012] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jawad v Hurstville City Council [2012] NSWLEC 1190

Hearing dates:

25 June 2012

Decision date:

16 July 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is upheld.

2. Development Application is approved subject to the conditions in Annexure "A".

3. The exhibits may be returned.

Catchwords:

DEVELOPMENT APPLICATION - demolition of existing structures and construction of a dual occupancy development. Minimum allotment size and objection under SEPP 1

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 - Development Standards
Hurstville Local Environmental Plan 1994

Category:

Principal judgment

Parties:

Bassem Jawad (Applicants)

Hurstville City Council (Respondent)

Representation:

Counsel
Mr O'Gorman - Hughes, barrister (Applicant)

Mr S Simington, solicitor (Respondent)
Solicitors
Applicant in person

Lindsay Taylor Lawyers (Respondent)

File Number(s):

10363 of 2012

Judgment

1. COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Hurstville City Council (council) of a development application (11/DA285) for an attached two storey dual occupancy development with Torrens Title subdivision at 15 MacPherson St, Hurstville (the site).

Site and its locality

1. The site is an irregular shaped allotment with a frontage of 26.2m, a rear boundary width of 9.51m and a total area of 628sqm. It is developed with a single storey dwelling and attached carport.

1. The site adjoins Molletts Reserve to the west and a recent two storey development to the east. The surrounding area is predominantly single storey detached dwellings with newer two storey dwellings. There are also dual occupancy developments and multi unit housing.

Planning controls

1. The site is within Zone No 2 (Residential Zone) under Hurstville Local Environmental Plan 1994 (LEP 1994). Dual occupancies are permissible with consent within this zone. Clause 11A provides requirements for dual occupancies. Hurstville Development Control Plan (the DCP) contains more specific requirements.

1. Clause 11A(2A) of LEP 1994 requires a minimum allotment size of 630 sq m and a width of at least 15 m for dual occupancy developments. The proposed development satisfies the width requirement but does not satisfy the minimum allotment size development standard, having an area of 628sqm. An objection under State Environmental Planning No 1 - Development Standards (SEPP 1) was provided to show why strict compliance with the minimum allotment size development standard is unreasonable and unnecessary, in this case.

1. Clause 11A(1) provides objectives for cl 11A. The relevant objectives in cl 11A(1)(d) state:

(d) provide a minimum allotment size and width required for the development of dual occupancy so that:

(i) the pattern of subdivision in residential areas is retained as reflected in lot size, orientation and shape;

(ii) allotments have a minimum size so as to provide landscaped areas that are suitable for tree planting; and

(iii )the scale and density of development is compatible with the existing streetscape.

Evidence

1. The hearing commenced on site on 25 June 2012 as a conciliation conference under s34AA of the Land and Environment Court Act. The council had no delegation to enter into an agreement and the conciliation conference was terminated.

1. The Court heard planning evidence from Mr A Betros, for the council and Mr D Haskew, for the applicant. The experts agreed on changes to the proposal that would address the contentions raised by council. I gave a preliminary judgment that on the basis of the changes being incorporated into amended plans, I was satisfied that the issues in dispute between the parties were resolved and that the application could be approved.

1. Amended plans which incorporate the agreed changes were filed on 6 July 2012. The planners provided the following summary of the changes and how they address the issues in dispute.

• Making both ground floor levels consistent having an RL of 41.3, thereby addressing issues of privacy impacts between the dwellings.
• Removal of the western end of the ground floor lounge area of Dwelling 2 and its 1st floor main bedroom, thereby addressing the issue of streetscape and improving solar access to the internal living area and rear yard of Dwelling 2 in the afternoon.
• Reconfiguration of the ground floor living area of Dwelling 1 which improves solar access to the lounge area and provides for centralised garaging, thereby improving solar access and cross ventilation to the lounge area and improving the streetscape presentation.
• Reconfiguration of the ground floor of Dwelling 1 to switch the bathroom and laundry with the dining area with a reduced 2.5m eastern side setback, thereby improving sunlight and daylight to the primary living areas.
• Provision of storage under the stairs of Dwelling 1 with access from the rear of the garage
• Provision of privacy screen and nib return at the western end of the 1st floor balcony, thereby addressing overlooking between the dwellings
• Reconfiguration of the ground floor of Dwelling 2 to provide improved surveillance of and outlook to the rear yard from the kitchen.
• Change of material over each alfresco area to allow for daylight access below (laserlite roofing) and to the rear yards, thereby improving daylight access to the alfresco area and improving the useability of that space as part of the overall private open space areas, which particularly benefits the private open space of Dwelling 2.
• Reconfiguration of bedrooms/bathrooms on 1st floor of Dwelling 2 to provide 4-bedrooms, rear balcony and storage/linen areas along with articulation to the 1st floor street-facing facade
• The elevations have been amended accordingly to reflect the above plan changes which includes resolution of the roof profile
• The trees in the rear yard of Dwelling 2 are to be retained

1. It is the agreed position of both planners that the proposed amendments result in an acceptable form of development on the site which reflect the outcome of the proceedings of Monday 25 June 2012.

Findings

1. The key issue originally in dispute between the parties was whether the SEPP 1 objection to cl 11A(2A) of HLEP was well founded. The experts agree that, with the amendments, the proposal will meet the objectives of the control. In particular, the scale and density of the development is compatible with the existing streetscape.

1. I am satisfied that the objective in cl 11A(1) are satisfied, notwithstanding the non-compliance with the minimum 630 sq m allotment size in cl 11A(2A) of HLEP. Consequently, strict compliance with the minimum allotment size is unnecessary and unreasonable in the circumstances of this case. I am satisfied that the SEPP 1 objection is well founded and that the granting of consent is consistent with the aims of SEPP 1 so consequently there are no reasons why the appeal should not be upheld and development consent granted.

1. The other issues in relation to front setback, solar access, visual and acoustic privacy have also been addressed by the amendments and are agreed by the experts to be acceptable.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application (11/DA285) for an attached two storey dual occupancy development with Torrens Title subdivision at 15 MacPherson St, Hurstville is approved, subject to the conditions in Annexure "A".

3. The exhibits may be returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 19 July 2012