Moodley T v Botany Bay City Council

[2004] NSWLEC 190

Land and Environment Court

of New South Wales

CITATION:	Moodley T v Botany Bay City Council [2004] NSWLEC 190
PARTIES:	APPLICANT Moodley T RESPONDENT Botany Bay City Council
FILE NUMBER(S):	11438 and 11440 of 2003
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Section 96 modification - conditions
LEGISLATION CITED:	Land and Environment Court Act 1976
CASES CITED:
DATES OF HEARING:	18/02/2004
EX TEMPORE JUDGMENT DATE :	03/04/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr T Moodley RESPONDENT Mr T O'Connor, solicitor SOLICITORS Houston Dearn O'Connor

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11438 and 11440 of 2003 Hussey C 4 March 2004 Thesigan Moodley
Applicant
v Botany Bay City Council
Respondent Judgment

1. This matter involves the following two appeals, which were lodged on the basis of the refusals of development applications at 6 Ivy Street, Botany:


1) Appeal 11438/03; s 96 modification to an approved two-storey dwelling, and
2) Appeal 11440/03; development application for the demolition of an existing dwelling and construction of a new dwelling.


2. However, the matters were dealt with by council and conditional consents granted. The parties subsequently agreed that the appeals relate to the conditions of the consent.

3. Furthermore, the parties agreed that the matter be determined by way of a binding s 34 conference.

4. In respect of the first appeal, the principal concern is that appropriate easements and covenants are put in place at the first stage of development, which guarantees satisfactory pedestrian and vehicle access to the proposed new dwelling on the rear lot.

5. As a result of further discussions the parties now agree to the amendment of conditions 1, 34 and 43, as shown in Annexure "AA".

6. On the basis of the evidence before the Court, I accept that these amended conditions should provide the level of security for future access to the rear lot, that council considers necessary. Therefore I accept this modification is reasonable.

7. The second appeal concerns the demolition of the existing house on the front lot (6 Ivy Street) and the subsequent erection of the new dwelling on this front lot. The concern is for the privacy and amenity of the new dwelling, because it is subject to a common footpath (ROW) over the front and side areas which is 1.2 m wide and adjacent to the new dwelling. This is to provide access to the new dwelling on the rear lot.

8. In response to this, the applicant has modified the windows of the proposed new dwelling, along this pathway, so that the sill height is 1.5 m above floor height, which is approximately 1.8 m above the footpath level. Council’s planner agreed that this provided a reasonable level of amenity for the development.

9. On the basis of the evidence before the Court, I accept this amendment is reasonable, in the context of the development approved by council. Therefore the amended conditions, as stated on Annexure “BB” of consent, are approved.

10. At the completion of the proceedings, the applicant gave notice of a possible Application for Costs. In view of the late timing of this application, the applicant was directed to serve any such application within seven days i.e. by 25 February 2004. Furthermore, any such cost application should be filed in 14 days i.e. by 3 March 2004.

Court Orders
1. Appeal No. 11438 is allowed.
2. Development Consent No. 02/386 is modified by deleting conditions, 1, 34 and 43 and replacing them with the conditions in Annexure “AA”.
3. Appeal No. 11440/03 is allowed.
4. Development Consent No. DA 04/173 is granted subject to the conditions in Annexure “BB”.
________________
R Hussey
Commissioner of the Court
rjs/ljr