Maley v Leichhardt Municipal Council - [2009] NSWLEC 1207

Land and Environment Court

of New South Wales

CITATION: Maley and Anor v Leichhardt Municipal Council [2009] NSWLEC 1207

PARTIES:
FIRST APPLICANT
Liam Maley
SECOND APPLICANT
Emma Louise MacDonald
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 10110 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Dwelling extensions, excessive bulk, overshadowing

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

DATES OF HEARING: 21 May 2009

DATE OF JUDGMENT:
25 June 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Maley (Solicitor)
SOLICITOR
Maclarens Lawyers
RESPONDENT
Ms J Walsh (Solicitor)
SOLICITOR
Pikes Lawyers

JUDGMENT:

tTHE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 June 2009

10110 of 2009 Liam Maley and Emma Louise MacDonald
JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a development application for alterations and additions to an existing cottage at 20 Crescent Street, Rozelle. The issues identified for the appeal are summarised as follows:

Excessive bulk and resultant overshadowing of adjoining open space areas.
Inconsistent with the urban form guidelines that apply in this heritage conservation area.
Unsatisfactory design of the front fence.
Public interest matters.

The site

2 This site is described as Lot 2 in DP 224795 and is situated near the intersection of Crescent and Parsons Streets. It has a total area of 190sq m, a splayed street frontage of 4.86m and side boundaries of approximately 40m. As a consequence of its situation, the rear boundaries of 4 residential properties facing Parsons Street back onto the sites southern boundary.

3 There is an existing single storey cottage with metal, gable roof on the site. It forms the southern half of a semi-detached pair. There is also a detached single garage adjacent to the rear (laneway) boundary.

4 The immediate locality is mixed use in character with industrial and other non residential uses located to the west/south west across Crescent street and to the rear, across Moore lane. The Parsons Street properties to the south are generally in residential use comprising both single and 2-storey dwelling houses. The rear gardens of these properties include a variety of ancillary domestic structures, such as various forms of sheds.

The proposal

5 This proposal is to maintain the 2 existing bedrooms at ground level and extend the existing building into the rear yard area and construct a new laundry, bathroom, kitchen and lounge opening onto a timber deck.

6 Over part of this ground floor extension, it is proposed to construct a new first floor containing a study, master bedroom with en-suite. The application also proposed some alterations to the front fence.

Planning controls

7 The following controls are relevant:

Leichhardt Local Environmental Plan 2000; under which the site is within the residential zone and the development is permissible with consent. The site is located within the Balmain Heritage Conservation Area. Clause 19 (2) allows a maximum FSR of 0.7:1. Clause 19(3) requires a minimum landscaped area of 40% of the site.
Leichhardt DCP 2000; under which the…

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: [2009] NSWLEC 1207
Decision Date: 25 June 2009

CaseChat Overview and Summary

Maley and MacDonald appealed against Leichhardt Municipal Council’s refusal of a development application for alterations and additions to an existing cottage at Rozelle. The proposal was to maintain two existing bedrooms at ground level and extend the existing building into the rear yard area and construct a new laundry, bathroom, kitchen and lounge opening onto a timber deck. Over part of this ground floor extension, it was proposed to construct a new first floor containing a study, master bedroom with en-suite. The appeal was lodged against council’s refusal of the application on the grounds of excessive bulk, resultant overshadowing of adjoining open space areas, inconsistency with the urban form guidelines that apply in this heritage conservation area and unsatisfactory design of the front fence. The Land and Environment Court dismissed the appeal and refused the development application on the basis that the proposal would cause unreasonable shadowing of the already restricted open space areas of the adjoining No 23 and No 25/27 Parsons Street. The Court found that the 1st floor level did not comply with the side boundary setbacks and caused a significant adverse loss of solar amenity and visual amenity to the neighbouring properties.

Orders