Jok on Lee v Hurstville Council
[2015] NSWLEC 1126
•29 April 2015
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New South Wales |
Case Name: | Jok On Lee v Hurstville Council |
Medium Neutral Citation: | [2015] NSWLEC 1126 |
Hearing Date(s): | 28 April, 2015 |
Decision Date: | 29 April 2015 |
Jurisdiction: | Class 1 |
Before: | O’Neill C |
Decision: | 1. The appeal is upheld. |
Catchwords: | DEVELOPMENT APPLICATION: multi-dwelling development and strata subdivision; no contentions raised by Council. |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Jok On Lee, Pui Man Hui, Kam Biu Chan (Applicant) |
Representation: | Counsel: |
File Number(s): | 10131 of 2015 |
JUDGMENT
COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 2014/0129 for the demolition of existing structures and construction of a multi-dwelling development of five dwellings and strata subdivision (the proposal) at 48 Johnstone Street, Peakhurst (the site) by Hurstville Council (the Council).
Issues
Based on the amended plans, the Council raises no contentions.
Despite the Council not raising any issues in the matter, Mr Campbell did not have instructions from the Council to enter into consent orders.
The site and its context
The site is on the eastern side of Johnstone Street, Peakhurst. The site contains a single family dwelling and a separate garage.
There are multi-dwelling developments and single family dwellings in the vicinity of the site.
The proposal
The proposal is to demolish the existing structures on the site and construct a multi-dwelling development consisting of five dwellings and strata subdivision. The proposal is for three separate buildings. The street front two storey building contains units 1 and 2. The middle two storey building on the site contains units 3 and 4. The rear single storey building contains unit 5.
Units 1 and 2 are each accessed by their own driveway from the street and a second driveway along the southern boundary is to service units 3, 4 and 5. There are two visitor car spaces accessed from the shared driveway.
The proposal includes the removal of trees on the site.
Leave was not opposed and was granted by the Court at the commencement of the hearing for the applicant to rely on amended plans, which added obscured fixed glazing to the windows, up to 1.6m above finished floor level, on the southern side of the first floor of units 3 and 4, to obstruct views from the upper level over the private open space of the adjoining property at 50 Johnstone Street.
Planning framework and consideration
The site is zoned R2 Low Density Residential pursuant to the Hurstville Local Environment Plan 2012 (LEP 2012) and the proposal, being multi-dwelling housing, is permissible with consent.
Development Control Plan No. 1 (DCP No. 1), at 4.3.2.4, includes a building envelope defined by a plane 3.5m at the boundary, then projected 45 degrees across the site, for two storey multi-dwelling housing.
DCP No. 1 at 4.3.2.6 requires one car space per 1 or 2 bedroom dwelling and 2 spaces for dwellings with 3 or more bedrooms.
Public submissions
Four resident objectors provided evidence on site at the commencement of the hearing. Their objections to the proposal can be summarised as:
The gum tree in the front of the site should be retained;
The proposal will result in loss of privacy to no. 50;
The proposal is an overdevelopment of the site and will generate additional traffic along Johnstone Street.
Consideration
The proposal, with a maximum height of 7.6m and a floor space ratio (FSR) of 0.55:1, complies with the relevant development standards in LEP 2012.
The gum tree within the front setback is identified as tree 1, a Sydney Red Gum, in the Arboricultural Assessment and Impact Report (exhibit 1, ff 33-99). According to the report, the tree is required to be removed regardless of any development, due to structural faults in the tree caused by open wounds and borer damage (exhibit 1, f 84).
I accept Council’s submission that the amended plans, which add obscured fixed glazing to the first floor windows of units 3 and 4 on the southern elevation adequately address the issue of overlooking of the private open space of 50 Johnstone Street.
I accept Council’s submission that the minor encroachment of the eave of unit 1, on the northern side of the site, into the building envelope defined by DCP No. 1 at 4.3.2.4, is acceptable as it has no amenity impacts and allows the proposal to be adequately setback from the southern boundary.
I accept Council’s submission that parking the second car for units 1 and 2 on their driveways is acceptable, as it avoids having the street elevation dominated by garages.
Conclusion
In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant the consent, having regard to the whole of the circumstances.
Orders
The orders of the Court are:
(1)The appeal is upheld.
(2)Development Application No. 2014/0129 for demolition of existing structures and construction of a multi-dwelling development of five dwellings and strata subdivision, at 48 Johnstone Street, Peakhurst, is approved, subject to the conditions of consent at Annexure A.
(3)The exhibits, other than exhibit A, are returned.
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Susan O’Neill
Commissioner of the Court
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