Jenkins v Clarence Valley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jenkins v Clarence Valley Council [2014] NSWLEC 1009
Hearing dates:	19, 20 November 2013
Decision date:	17 January 2014
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION - Detached extension to existing residence - Heritage item - Whether dwelling house - Whether development suitable for site - Impacts on heritage item - Classification of building
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 State Environmental Planning Policy (Affordable Rental Housing) 2009 Clarence Valley Local Environmental Plan 2011
Cases Cited:	Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 Blacktown City Council v Haddad [2012] NSWLEC 224 Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 Church of England Children's Homes Burwood v Burwood Municipal Council (1981) 43 LGRA 165 Dobrohotoff v Bennic [2013] NSWLEC 61 Jenkins v Clarence Valley Council [2013] NSWLEC 161 South Sydney Council v James (1979) 35 LGRA 432
Category:	Principal judgment
Parties:	Peter Jenkins (Applicant) Clarence Valley Council (Respondent)
Representation:	Counsel Ms L M Saw (Applicant) Ms F Berglund (Respondent) Solicitors Thomsons Lawyers (Respondent)
File Number(s):	10631 of 2013

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the decision of the respondent Council on 23 February 2013 to refuse consent to development application DA 2012/0464 for "detached extension to existing residence" at 29 Mary Street Grafton (the site).

1. The site has a total area of 1,004 sqm, and is located at the south western end of Mary Street. An easement to drain sewerage runs along the north eastern side boundary from the rear boundary to approximately half way along the site, and then across the site to the adjoining lot on which Nos 27 and 27A Mary Street are located. The existing building is identified as a heritage item under the Clarence Valley Local Environmental Plan 2011 (the LEP).

1. Surrounding development in Mary Street includes on the western side at No 21: a 2 storey residential flat building comprising 5 units; Nos 25/27: four single storey detached villas accessed off a central driveway; No 31: two detached single storey units at the front of the site with 4 multi-residential units in a building at the rear of the site; No 33: single storey weatherboard cottage; No 35: single storey weatherboard cottage; No 37: single storey dwelling at the front and 2 storey dwelling at the rear; No 39: 3 attached dwelling units; and No 41/43: 2 single storey attached dwellings. The single storey dwellings on 33, 35, 37 and 41/43 are heritage items under the LEP. On the eastern side there is a mixture of one and two storey dwellings, including one dual occupancy and 4 dwellings that are heritage items under the LEP.

1. The existing building on the site contains a home office, study, bedroom, living room, kitchen and bathroom/laundry. The proposed…