Lees v Canada Bay City Council

[2003] NSWLEC 365

>

Land and Environment Court

of New South Wales

CITATION:	Lees v Canada Bay City Council [2003] NSWLEC 365 revised - 24/12/2003
PARTIES:	Andrew Lees and Zena Carusi-Lees v Canada Bay City Council
FILE NUMBER(S):	10808 of 2003
CORAM:	Nott C
KEY ISSUES:	Development Application :- On-site hearing - subdivision of residential property into two lots and provision of carparking in the front yard of existing house - conservation area - applicantion for adjournment to submit amended plans.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979. s97(1)
CASES CITED:
DATES OF HEARING:	18 November 2003
EX TEMPORE JUDGMENT DATE :	11/18/2003
LEGAL REPRESENTATIVES:	APPLICANTS Bruce Goldsmith, authorised agent RESPONDENT Mrs L Finn, solicitor SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10808 of 2003

Nott C

24 November 2003

Andrew Lees and Zena Carusi-Lees

Applicant

v

Canada Bay City Council

Respondent

Reasons for Adjournment

1 This is an appeal in respect of the subdivision of the property at 27 Tranmere Street, Drummoyne. The appeal also relates to other matters that were the subject of the development application.

2 On the subject site is a house which was erected at the turn of the twentieth century and it is in a conservation area, and there are provisions in the council's planning documents relating to whether or not it is appropriate to have structures in front of the houses.

3 Part of the development application was to erect a carport in front of the house on the subject land but to the north-western side of the property. It was also proposed to demolish structures at the rear of this house that apparently are accepted as not having heritage significance, in order to provide adequate open space for the house that would remain on the Tranmere Street frontage. A two-lot subdivision was proposed. The rear lot has a frontage to South Street.

4 The case has involved expert evidence from heritage consultants and from consultant town planners, and evidence from a consultant, traffic engineer Mr J Coady.

5 I will not go into all the evidence at this stage because, having heard from the various persons who did give evidence, an application was made towards the end of this on-site hearing for an adjournment to amend the development application. The proposed amendment retains those aspects of the development application that relate to the demolition of the rear parts of the house and retains the presently proposed subdivision. However, the proposed amendment involves the deletion of the carport and the provision instead at the front of the existing house of a hardstand area. That is what I have been informed would be the principal amendment made to the application.

6 The present development application was supported by plans which are contained in exhibits E and F. Those plans had inaccuracies in scaling and possibly in the dimensions where they were shown. They were also inaccurate insofar as they depicted the proposed carport as standing to the side of the existing house although in front of it, whereas the width of the proposed carport and the width between the existing house and the north-western boundary would not allow the carport of the kind depicted in the elevations. The plans are not good quality, and I am not prepared to consider at this stage an application for a hardstand area without proper plans being put before me. This is because it is a conservation area and it is a requirement that excavation be the subject of a development application. There would be questions as to where the hardstand would be placed, and so that would have to be specified. It might not be necessary that it be as close to the front of the existing house as the proposed carport. The plans showed a retaining wall but that retaining wall was shown to be outside the boundary of the subject site. It is not clear where the boundary of the site is in respect of a brick wall that is between the subject site and the adjoining church and school property.

7 If an application is made in respect of the hardstand area, it would be desirable having regard to the conservation area in which this property is located that detailed plans be provided, in particular, showing any retaining wall that would be needed at or near the common boundary with the school property and showing the type of materials and cross section and depth of the retaining wall and also the retaining wall that would be needed presumably on the other side of the driveway. It would appear that excavation is necessary. The architect envisaged apparently that there would be excavation down only to the footpath level. But the footpath level is raised above the road level, and a deeper excavation in my preliminary opinion may be needed, and there may have to be some reduction in the height of the nature strip. Regard would have to be had from an engineering point of view that the road rises from the gutter, which could cause cars to bottom out unless there was excavation probably down to the gutter level and lowering at the nature strip, which is a matter that would need to be considered by an appropriate expert.

8 This is a heritage locality, and the subject house is one of a group of three houses that do not have structures in their front garden areas and that do not have crossings over the nature strip. The solid brick fence is part of the property and part of the conservation area, and details would also need to be given of how the fence is to be broken up and reconstructed and what gates would be provided.

9 As I understand the applicants’ position, the applicants would be prepared to provide an amended application containing sufficient detailed information to enable both the council and its experts and the Court to come to a concluded view on the matter. As well, appropriate landscaping could be provided, for example a small strip left adjoining common boundary. However, it is not for the Court to design or propose how a carparking space might be appropriately provided in front yard of the house.

10 It seems that as part of any subdivision application, it is a requirement of the comprehensive development control plan that carparking be provided on each of the subdivided lots. If carparking is not provided in front of the existing house, then an easement may be needed over the rear lot in order to serve the front lot, in which case there would be a reduction in the already fairly small area of the rear lot.

11 No doubt the council in its consideration of any amendment to the application (which is still before the Court technically) would be able to take into account the circumstances of this case and the adjoining properties both at the rear and the front, and the general significance of the conservation area, and what impact a hardstand might have of the kind that the applicants indicate they wished to put forward to the Court, details of which would have to be specified. Accordingly, I propose to accede to the applicants’ request for an adjournment, noting that it was opposed by the council. As the subdivision remains the same and as the driveway on to the subject site from Tranmere Street is still proposed, it seems to me that it is open to the Court to receive an amended application and for the amended application to provide details that were lacking in the original application.

12 I propose to adjourn the matter to a Registrar’s call-over list suitable to the parties. The purpose of allowing an adjournment is also to enable the amended application to be renotified and advertised, if that is what is required in accordance with the regulation under the Environmental Planning and Assessment Act 1979 and any development control plan adopted in relation to advertising. Any such DCP was not referred to by the parties and I think in the circumstances, it being a conservation area, it would be appropriate for re-notification and advertising of the amended application, and I think that is agreed by both parties.

13 The matter is adjourned to the call-over on 9 December 2003 with a view to fixing a date for hearing before me if the matter is ready to proceed. At such time, directions can be given concerning the filing of any further expert evidence.

________
A J Nott
Commissioner of the Court