Jones v Leichhardt Municipal Council - [2004] NSWLEC 379

Land and Environment Court

of New South Wales

CITATION: Jones v Leichhardt Municipal Council [2004] NSWLEC 379

PARTIES:
APPLICANT
Richard Jones
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 11442 and 11270 of 2003

CORAM: Brown C

KEY ISSUES: Development Application :- demolition of existing building
erection of attached dwellings
heritage impact/streetscape
internal amenity
floor space ratio
impact on neighbouring properties

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000

CASES CITED: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46

DATES OF HEARING: 16/06/2004

DATE OF JUDGMENT: 06/17/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms F Sinclair, barrister
SOLICITORS
DTA Lawyers
RESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike and Fenwick

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

17 June 2004

11442 & 11270 of 2003 Richard Jones v Leichhardt Municipal Council

1 This matter involves two separate but related appeals in relation to the property at No. 48 Evans Street, Rozelle (the subject site). Appeal No. 11442 of 2003, relates to the demolition of the existing dwelling. Appeal No. 11270 of 2003 relates to the erection of an attached dwelling comprising two dwellings with ground floor living areas and three bedrooms on the first floor. The proposal also includes the strata subdivision of the dwellings.

2 The subject site is zoned residential under Leichhardt Local Environmental Plan 2000 (LEP 2000). The proposed development is permissible with consent within this zone. The dwelling on the subject site is not an identified heritage item but is located within a conservation area and in the vicinity of a number of heritage items. LEP 2000 provides controls for floor space ration at cl. 9. It was common ground that the proposal has a floor space ratio of 0.95:1 compared to the LEP 2000 requirement of 0.7:1. Development Control Plan 2000 (the DCP) provides more detailed requirements for residential development. The relevant requirements relate to building envelope, side setbacks, solar access and streetscape.

3 The council filed an amended statement of issues containing 20 issues although not all were pressed. The remaining issues can be conveniently grouped into the following main areas.

1. the impact on the conservation area,
2. the internal amenity of the proposed dwellings,
3. the impact on the streetscape,
4. whether the SEPP 1 objection to the exceedance of the floor space ratio development standard is well founded,
5. whether there are unacceptable impacts on the nearby and adjoining neighbours, and
6. should demolition of the existing dwelling be allowed if the proposed dwellings are unacceptable.

4 On the issue of heritage impact, cl. 15 of LEP 2000 provides objectives in relation to heritage conservation. Relevantly the objective in cl. 15(b) states, in part, “to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt.”

5 Cl. 16(8), in relation to conservation areas, states that consent must not be granted for the demolition or erection of buildings unless an assessment has been…

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: [2004] NSWLEC 379
Decision Date: 06/17/2004

CaseChat Overview and Summary

In the matter of Jones v Leichhardt Municipal Council, the applicant, Richard Jones, sought to appeal two separate decisions made by the Leichhardt Municipal Council in relation to a property at No. 48 Evans Street, Rozelle. The first appeal, numbered 11442 of 2003, concerns the proposed demolition of the existing dwelling, while the second appeal, numbered 11270 of 2003, pertains to the erection of an attached dwelling comprising two dwellings with ground floor living areas and three bedrooms on the first floor, along with the strata subdivision of the dwellings. The subject site is zoned residential under the Leichhardt Local Environmental Plan 2000 (LEP 2000), and the proposed development is permissible with consent within this zone.

The primary legal issues that the court was required to decide were: (1) the impact on the conservation area, (2) the internal amenity of the proposed dwellings, (3) the impact on the streetscape, (4) whether the State Environment and Planning Policy (SEPP 1) objection to the exceedance of the floor space ratio development standard is well-founded, (5) whether there are unacceptable impacts on the nearby and adjoining neighbours, and (6) whether the demolition of the existing dwelling should be allowed if the proposed dwellings are unacceptable. These issues were examined in light of the Environmental Planning and Assessment Act 1979 and the Leichhardt Local Environmental Plan 2000.

The court found that the proposed development was inconsistent with the objective in cl. 15(b) of LEP 2000 and that the impact on the conservation area was unacceptable. The court agreed with the council's expert witness, Mr David Logan, that the cantilevered balcony that projected over the footpath area was not appropriate in the conservation area, and it would diminish the visual prominence of the nearby heritage items. Furthermore, the court found that the proposed dwellings had inadequate solar access and cross-ventilation, which contravened the requirements of Part 3.1 of the Development Control Plan 2000. Additionally, the court found the SEPP 1 objection to be deficient and not well-founded, as it failed to address the underlying objective of the floor space ratio development standard. Lastly, the court found that the objections from local residents regarding potential loss of privacy and noise impacts were unfounded.

Consequently, the court dismissed both appeals, refused the development application for the erection of the attached dwellings and strata subdivision, and ordered the exhibits to be returned. The court also determined that the demolition of the existing dwelling should not proceed if the proposed dwellings were unacceptable.

Orders