Michael Sabongi, Alfy Attia and Raffat Wasset v Ashfield Council No. 10584 of 1994

[1994] NSWLEC 2

Land and Environment Court

of New South Wales

CITATION:	MICHAEL SABONGI, ALFY ATTIA and RAFFAT WASSET v. ASHFIELD COUNCIL No. 10584 of 1994 [1994] NSWLEC 2
PARTIES:	MICHAEL SABONGI, ALFY ATTIA and RAFFAT WASSET v. ASHFIELD COUNCIL
FILE NUMBER(S):	10584 of 1994
CORAM:
KEY ISSUES:	:-
LEGISLATION CITED:	Encroachment of Buildings Act, 1922 State Environmental Planning Policy No 28 ("SEPP 28")
CASES CITED:
DATES OF HEARING:	1 December 1994
EX TEMPORE JUDGMENT DATE :	12/01/1994
LEGAL REPRESENTATIVES:	APPLICANT RESPONDENT

JUDGMENT:

State Environmental Planning Policy No 28 ("SEPP 28"), as Mr J.Ayling correctly says, has policy aims and objectives to achieve urban consolidation, and is aimed at providing for more dwellings on properties than were formerly allowed. An application was made to erect two two-storey buildings between which were some carports or garage spaces. On one property it was proposed to erect two dwellings and the other a single dwelling. A letter from G M Laurence and Wherry, solicitors for the Council, dated 21 October 1994, stated that the application could not be allowed because the definition of a townhouse in SEPP 28 is defined as meaning a dwelling within a two storey building containing two or more dwellings, and the definition of a villa house in SEPP 28 is defined as meaning a dwelling house within a one storey building, therefore the free-standing two-storey building would not be considered as a villa house. That argument appears to me to be unassailable in terms of the definitions contained in SEPP 28. In order to overcome the objections the applicant lodged fresh plans, which connect the two buildings by a wall in the vicinity of the carports. It is said that this is one structure. SEPP 28 does not define the term "building". "Building" may have a different meaning in a different context. This planning instrument has in mind that buildings are to be structures which contain dwelling houses, and it differentiates between villa houses in a one-storey building and townhouses in a two-storey building. I do not know that it is of any assistance to me to refer to the cited cases on different State laws, for example, the Encroachment of Buildings Act, 1922 . "Building" may have a different meaning, it may include a wall. In my opinion, the linking of these two structures by a wall does not mean that they become a single building. Each structure has its own foundations, its own external walls and its own roofing. The structures are entirely independent for their viability. Placing a wall between them may be anarchitectural advantage or disadvantage, but I am of the view that the wall does not make them into a single building.In those circumstances, I uphold the objection and determine the point of law in the affirmative. The proposal is not permitted, because it consists of putting two dwellings in one two-storey building, and one dwelling in a separate two-storey building, which appears to me to be in breach of SEPP 28. It is a regrettable situation, but I have no doubt that it can be overcome by the applicant lodging fresh plans for an integrated structure.

I make no order as to costs.