Meyer v Ashfield Municipal Council - [2008] NSWLEC 1279

Land and Environment Court

of New South Wales

CITATION: Meyer v Ashfield Municipal Council [2008] NSWLEC 1279

PARTIES:
APPLICANT
Paul Meyer
RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S): 11340 of 2007

CORAM: Bly C

KEY ISSUES: Appeal :- s 34 Conciliation Conference, renovation and restoration of a heritage item, studio and garage, detached dwelling house, subdivision, solar access, visual and acoustic privacy and overshadowing.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985
Ashfield Development Control Plan No. 1 - Dwellings in Residential Zones
Development Control Plan - Heritage Conservation
State Environmental Planning Policy No. 1 - Development Standards

CASES CITED: Parsonage v Ku-ring-gai [2004] NSWLEC 347
Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 03/07/2008 and 04/07/2008

EX TEMPORE JUDGMENT DATE: 4 July 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr P. Brown and Mr J. Cole, solicitors
of Home Wilkinson Lowry, Lawyers
RESPONDENT
Mr S. Patterson, solicitor
of Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

4 July 2008
11340 of 2007 Paul Meyer v Ashfield Municipal Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

1 This matter began as a s 34 Conciliation Conference on 26 February 2008 with no agreement being reached. As a consequence of that initial conference, amended plans and supplementary materials were provided to the council for the purpose of re-notification and further consideration. The conciliation conference resumed on 3 July 2008 and no agreement having been reached the parties agreed to me hearing and disposing of the proceedings pursuant to s 34 (4)(b)(ii) of the Land and Environment Court Act 1979.

2 The development as now proposed involves the renovation and restoration of the existing heritage item on the site known as Lyngrove and the construction, at the rear, of a garage with studio above, the construction of a new three-bedroom two level dwelling house. Subdivision is also proposed creating a new lot for the proposed dwelling house at the rear of the site opposite the proposed garage/studio.

3 The site at 79 Bland Street, Ashfield is irregular in shape and has an area of just over 2000 square metres. It has a frontage of about 23 metres and a rear boundary of about 69 metres. It is this width at the rear that provides for the creation of the proposed new lot that is to have an area of 303 square metres plus and access way of 45 square metres, a total of 348 square metres.

4 The site is included in the 2(a) Residential Zone under the Ashfield Local Environmental Plan 1985 and the various aspects of the proposal are permissible with development consent. Also applicable to the site is council's Development Control Plan No. 1 - Dwellings in Residential Zones and Development Control Plan - Heritage Conservation. Whilst the residential DCP has been superseded it remains relevantly applicable by virtue of the savings clause in the replacement…

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: [2008] NSWLEC 1279
Decision Date: 4 July 2008

CaseChat Overview and Summary

In the case of Meyer v Ashfield Municipal Council, Paul Meyer, the applicant, appealed against the decision of the Ashfield Municipal Council to refuse consent for the renovation and restoration of an existing heritage item on the site known as Lyngrove, and the construction of a garage with studio above, a new three-bedroom two-level dwelling house, and a subdivision creating a new lot for the proposed dwelling house at the rear of the site. The proposed development was subject to objections from neighbouring property owners, who raised concerns about overshadowing, visual impacts, and the bulk and scale of the proposed buildings. The Land and Environment Court of New South Wales was required to determine whether the proposed development would result in adverse amenity impacts and whether the council's objections should be upheld.

The court considered the planning controls and policies applicable to the site, including the Ashfield Local Environmental Plan 1985, the Development Control Plan No. 1 - Dwellings in Residential Zones, the Development Control Plan - Heritage Conservation, and the State Environmental Planning Policy No. 1 - Development Standards. The court also took into account the expert opinions of the council's town planning consultant and the applicant's heritage consultant, as well as the submissions made by the parties during the hearing. The court found that the proposed development complied with most of the planning controls, and that the minor non-compliances with the overshadowing control were acceptable. The court also considered the concerns of the neighbouring property owners and concluded that a reasonable balance had been achieved between the interests of the applicant and the neighbouring properties.

The court held that the appeal should be upheld and conditional development consent should be granted. The conditions of consent would be those agreed between the parties. The court found that the SEPP 1 objection relating to the lot size should be upheld, but this did not outweigh the other considerations in favour of the proposed development. The court considered the significant public interest in the restoration of the heritage item and the various requirements of the DCP, and concluded that the application should not be refused.

In conclusion, the court granted conditional development consent for the proposed development, subject to the conditions agreed between the parties. The court recognised that there would be some impacts on neighbouring dwellings, but found that these were outweighed by the other considerations in favour of the proposed development. The decision of the Ashfield Municipal Council to refuse consent was overturned, and the applicant's appeal was upheld.

Orders