Mathers v North Sydney Council

Land and Environment Court

of New South Wales

CITATION:	Mathers v North Sydney Council [2000] NSWLEC 84
PARTIES:	APPLICANT: Alfred William Watt Mathers RESPONDENT: North Sydney Council
FILE NUMBER(S):	11137 of 1999
CORAM:	Talbot J
KEY ISSUES:	Development Application :- weight to be attributed to draft LEP
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	26/04/2000, 27/04/2000
DATE OF JUDGMENT:	04/28/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr G N McKee (Solicitor) SOLICITORS: McKees RESPONDENT: Miss D J Townsend (Solicitor) SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No. 11137 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 28 April, 2000

Alfred William Watt Mathers
Applicant

v
North Sydney Council

Respondent

REASONS FOR JUDGMENT


The proposal

1. The applicant originally appealed against a deemed refusal of its development application to demolish an existing dwelling house at 214 Ben Boyd Road, Neutral Bay and to erect four attached dwellings in a building constructed over basement car parking providing a total of seven car spaces.

2. Subsequent to the lodgment of the appeal by notice dated 21 December 1999, the council refused the development application.

3. The subject property consists of one allotment comprising an area of approximately 570 square metres. The site is generally level and is located on the western side of Ben Boyd Road, approximately 15 metres north of Oaks Avenue.

4. The existing dwelling consists of a single storey federation style bungalow set back around 6.2 metres at its closest point from Ben Boyd Road.

The planning controls

(a) LEP 1989

5. The land is within zone No 2(c) (Residential “C”) under North Sydney LEP 1989 (“LEP 1989”).

6. The relevant particular objective of this zone is to permit a form of development which is compatible with the scale and character of the existing locality.

7. Attached dwellings are permissible with consent. The proposal meets the definition of attached dwelling as being a building on a single allotment containing two or more dwellings, each dwelling having an individual entrance and access to a courtyard at natural ground level, being a dwelling no part of which is superimposed on any part of another dwelling and includes dwellings in a row of two or more dwellings attached to each other such as are commonly known as townhouses.

8. There is no dispute between the parties that the proposed development is for attached dwellings.

9. Apart from a minor infringement of the building height plane, which meets the exemption within cl 13(2), the building will satisfy the numerical requirements of LEP 1989.

10. Development Control Plan No. 1 (“DCP 1”) aims to provide more detailed provisions than are contained in LEP 1989 for the assessment of development applications, with specific controls for conservation areas.

(b) Draft North Sydney LEP 2000

11. The revised and re-exhibited Draft North Sydney LEP 2000 (“the draft LEP 2000”) provides that where a development application has been lodged but not determined before the commencement of the plan,…