Kakoz v Fairfield City Council

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Land and Environment Court


New South Wales

Medium Neutral Citation: Kakoz & Anor v Fairfield City Council [2016] NSWLEC 1056
Hearing dates:29 January 2016
Date of orders: 17 February 2016
Decision date: 17 February 2016
Jurisdiction:Class 1
Before: Pearson C
Decision:

1.The appeal is upheld;
2. Modification Application No 910.2/2012 to modify Development Consent No 910.1/2012 for the construction of a two storey dwelling at 4 Dunstan Street Fairfield West is determined by approving the modifications as set out in Annexure A;
3. As a consequence of order (2), Development Consent No 901.1/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and
4. The exhibits, other than Exhibits 3, 7, 8, A and B, are returned.

Catchwords: DEVELOPMENT MODIFICATION: Alterations to approved dwelling house – Increase in internal void space – Reduction in side setback – Solar access and privacy impacts - Streetscape
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Fairfield Local Environmental Plan 1994
Fairfield Local Environmental Plan 2013
Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
Zhang v Canterbury City Council [2001] NSWCA 167
Category:Principal judgment
Parties: Cenan Kakoz (First Applicant)
Rasha Daniel (Second Applicant)
Fairfield City Council (Respondent)
Representation: Mr C E Hage, agent (Applicants)
Mr J Thompson, Richie & Castellan Solicitors (Respondent)
File Number(s):11009 of 2015
Publication restriction:No

Judgment

  1. This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of approval for an application made pursuant to s 96(1A) of the Act to modify a development consent granted for the construction of a two storey dwelling at 4 Dunstan Street Fairfield West (the site).

  2. Development Consent No 910.1/2012 was issued on 21 March 2013 for the construction of a two storey dwelling, attached garage (basement), in-ground swimming pool and masonry front fence. The s96(1A) modification application No 910.2/2012 sought approval for the relocation of the third and fourth bedrooms on the first floor of the dwelling house to the western side of the building. The Council refused the application on 17 September 2015.

  3. The matter commenced with a conciliation conference pursuant to s34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act). No agreement was reached and the matter proceeded to hearing pursuant to s 34AA(2)(b) of the Court Act. Mr C E Hage was granted leave pursuant to s 63 of the Court Act by the Registrar to represent the applicants as agent.

The site and locality

  1. The site is located on the northern side of Dunstan Street, and is an irregular shaped lot with a consistent fall in gradient from the rear property boundary to the front boundary. The eastern boundary of the site adjoins 3 Dunstan Street which has a single storey dwelling house; the western boundary of the…

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Details
Case
[2016] NSWLEC 1056
Decision Date

CaseChat Overview and Summary

Kakoz, the appellant, brought a case against Fairfield City Council, the respondent, to the Land and Environment Court of New South Wales. The primary dispute centred on the respondent's refusal to approve a modification application concerning the construction of a two-storey dwelling at 4 Dunstan Street, Fairfield West. The appellant sought a review of the decision and a determination of the modification application.

The central legal issue for the court to decide was whether the respondent's refusal to approve the modification application was unreasonable. The appellant argued that the refusal was based on an incorrect interpretation of the development consent, which resulted in an unreasonable decision. The respondent, on the other hand, contended that the appellant's proposed modifications did not comply with the relevant planning and development laws, and thus, the refusal was reasonable.

The court found that the respondent had incorrectly interpreted the development consent when it refused the appellant's modification application. The court held that the respondent's decision was unreasonable due to this misinterpretation. Consequently, the appeal was upheld, and the modification application was approved as outlined in Annexure A of the decision. Furthermore, the court ordered that the development consent be subject to the consolidated, modified conditions set out in Annexure B. The exhibits, except for a few specified ones, were returned to the parties involved.

Orders

Orders of the court

1.The appeal is upheld;

2. Modification Application No 910.2/2012 to modify Development Consent No 910.1/2012 for the construction of a two storey dwelling at 4 Dunstan Street Fairfield West is determined by approving the modifications as set out in Annexure A;

3. As a consequence of order (2), Development Consent No 901.1/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and

4. The exhibits, other than Exhibits 3, 7, 8, A and B, are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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