McKees Legal Solutions v Leichhardt Council - [2009] NSWLEC 1346

Land and Environment Court

of New South Wales

CITATION: McKees Legal Solutions v Leichhardt Council [2009] NSWLEC 1346

PARTIES:
APPLICANT
McKees Legal Solutions
RESPONDENT
Leichhardt Council

FILE NUMBER(S): 10385 of 2009

CORAM: Brown C - Sullivan AC

KEY ISSUES: DEVELOPMENT APPLICATION :- subdivision of an existing lot into 2 Torrens Title lots - concept dwelling design - impact on heritage items

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

CASES CITED: Anglican Church Property Trust v Sydney City Council [2003] NSWLEC 353
Parrott v Kiama [2004] NSWLEC 77

DATES OF HEARING: 15, 16 September 2009

DATE OF JUDGMENT:
20 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKees Legal Solutions
RESPONDENT
Ms R McCulloch, solicitor
SOLICITORS
Pikes Lawyers

JUDGMENT:

- 7 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Sullivan AC

20 October 2009

10385 of 2009 McKees Legal Solutions v Leichhardt Council

JUDGMENT

1 COMMISSIONERS: This is an appeal against the refusal by Leichhardt Council (the council) of Development Application D/2009/46 for the subdivision of an existing lot into 2 Torrens Title lots at 24 Pearson Street, Balmain East (the site).

2 The contentions raised by the council relate to whether the proposed subdivision will provide the opportunity for a dwelling that complies with the council’s planning controls and in the event a dwelling could be constructed on a new lot created by the subdivision, whether the dwelling would adversely affect the heritage significance of an adjoining heritage item and other nearby heritage items.

The site and surrounding area

3 The site is Lot 100 in DP 872400 with a street frontage of 17.39 m and side boundaries of approximately 49 m giving a total site area of 819.1 sq m. The northern part of the site has a slight slope towards the south to a sandstone cliff face located around 36 m from the northern boundary. South of the cliff face, the land continues to slope gradually towards and an irregular dry-packed stone retaining wall up to 2 m in height and located about 6 m south of the sandstone cliff face. The retaining wall extends east of a sandstone rock face/outcrop, which is located in the south western portion of the site. South of the retaining wall, the ground surface continues to gradually slope towards another retaining wall located approximately 4 m away, along the southern boundary of the site. This retaining wall is approximately 4 m in height and located adjacent to the southern boundary, shared with properties in William Street. Expansive views are available of Johnstons Bay towards Pyrmont from the site.

4 The northern part of the site, at the Pearson Street frontage, is occupied by a single storey Victorian gothic cottage with attic and is called "Rothesay”. It is identified by the council as a heritage item. Rothesay is currently unoccupied and in a poor state of repair. The southern part of the site, contains only retaining walls and no structures.…

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.

Continue reading McKees Legal Solutions v Leichhardt Council

Details

AGLC: McKees Legal Solutions v Leichhardt Council [2009] NSWLEC 1346
Case: [2009] NSWLEC 1346
Decision Date: 20 October 2009

CaseChat Overview and Summary

McKees Legal Solutions appealed against the Leichhardt Council's refusal of a development application for the subdivision of Lot 100 at 24 Pearson Street, Balmain East into two Torrens Title lots. The key issues were whether the subdivision would provide a suitable setting for development, comply with planning controls, and impact the heritage significance of Rothesay and nearby heritage items. The site is within the Balmain Heritage Conservation Area, and Rothesay, a single-storey Victorian gothic cottage, is a heritage item of local significance. The proposal involved subdividing Lot 100 into Lot 1, containing Rothesay, and Lot 2, a trapezoidal lot for a proposed dwelling. The council argued that the subdivision would unacceptably impact the heritage significance of Rothesay and nearby heritage items, while the applicant contended that the impacts would be limited and acceptable.

The court found that the proposed subdivision would unacceptably impact the heritage significance of Rothesay and its setting, as well as the views to and from the heritage item. The court concluded that the proposed subdivision did not comply with the relevant heritage conservation objectives and the East Balmain Distinctive Neighbourhood requirements. The court also found that the proposed subdivision was inconsistent with the principles set out in Anglican Church Property Trust v Sydney City Council. Although the subdivision could potentially provide an appropriate setting for a dwelling, the court found that it would not be appropriate without the concurrent approval of a dwelling on Lot 2, due to the topographic constraints, proximity of adjoining development, and the need to address view sharing. Therefore, the appeal was dismissed, and the development application was refused.

Orders