Nacoski v Hurstville City Council

[2015] NSWLEC 1225

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nacoski v Hurstville City Council [2015] NSWLEC 1225
Hearing dates:	Conciliation conference on 22 June 2015
Date of orders:	22 June 2015
Decision date:	22 June 2015
Jurisdiction:	Class 1
Before:	Moore SC
Decision:	See (8) below
Catchwords:	DEVELOPMENT APPLICATION: two lot residential subdivision; no conciliation agreement; agreement between expert planners on all issues; no other issues pressed by the respondent; issues raised by neighbours not valid
Legislation Cited:	Hurstville Local Environmental Plan 2012 Land and Environment Court Act 1979
Cases Cited:	Seaside Property v Wyong Shire Council [2004] NSWLEC 600 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589Click here to enter text.
Category:	Principal judgment
Parties:	J Nacoski (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel: Mr S Patterson, solicitor (Applicant) Ms V McGrath, solicitor (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Norton Rose Fulbright Australia (Respondent)
File Number(s):	10312 of 2015

Judgment

1. SENIOR COMMISSIONER: 190 Lorraine Street, Peakhurst Heights is a corner allotment with frontages to Lorraine Street and to Cliff Avenue. The applicants are applied to Hurstville Council (the Council) for consent to subdivide the existing allotment into two allotments with the dwelling on the present site remaining with a frontage to Lorraine Street and with the new allotment having a frontage to Cliff Avenue.

2. The proposal was considered by the Council and the application was refused on 4 March 2015.

3. There have been continuing discussions between the applicant’s planner, Ms Gordon and the Council's planner, Mr Turrisi, concerning adjustments to the application -particularly with respect to the interrelationship between the present dwelling and the lot boundaries - in order to ensure compliance with the Council's controls for private open space for the dwelling that is to continue. That private open space will be created by turning the storage area in the north-eastern corner of the existing dwelling into a covered open space by creating substantial apertures in the existing walls. Those apertures and the ability of the residual corner of the dwelling to support them will need to be the subject of a detailed structural engineering consideration. The Council has provided a deferred commencement condition to that effect - a condition that is accepted by the applicant.

4. The town planners are now in agreement that there will be adequate solar access to that area.

5. A number of other adjustments to the application have been made to ensure that there is appropriate privacy protection (both for the existing dwelling and to a dwelling that may be located on the adjacent allotment).

6. I have received this morning an objection from Swaab Lawyers on behalf of the neighbours to the property who live at 2 Cliff Avenue. That objection substantially repeats an objection that had been earlier lodged - which was provided to the Court as part of the Council's material - with the original Statement of Facts and Contentions and now the Amended Statement of Facts and Contentions.

7. I have carefully considered the nature of those objections and make the following observations with respect to them:

• First, it is proposed that I should adapt the planning principle of the Court in Seaside Property v Wyong Shire Council [2004] NSWLEC 600 which deals with zone interface development and apply it as an adjacent lot interface development principle because of what are said to be the larger allotments that exist in the area. I am satisfied as a matter of general principle that it is entirely inappropriate to do so. The allotment that is proposed to be created and the allotment with the existing house will satisfy the minimum allotment sizes in the Council's Hurstville Local Environmental Plan 2012 and that is a sufficient compliance on that aspect of the objection;

• The remainder of the matters that are set out in the objection (with the exception of the issue relating to the dimensions of the setback to be available to the existing dwelling) are ones that will more properly fall to be considered at the time there is an application for development consent to erect a dwelling on the new allotment and do not fall to be considered by me at this time as I am satisfied that the inter-allotment issues between the two allotments to be created from one are satisfactorily dealt with by the resolution of matters by the planners;

• The objection also raises the question of whether the dimension of the new allotment in fact creates a setback for the existing dwelling of 3 m. Taking the objection at its highest, the objection postulates that there will be a 5 cm shortfall in that setback. Doing, as I am obliged to, and follow the decision of the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589, I take that development control plan provision as my focal point or starting point for consideration of this issue. Having done so, I am satisfied that a 5 cm deficit, in the circumstances, should be regarded as de minimis.

8. There being no other issues in dispute between the applicants and the Council and having considered all of the matters that are raised in the objection letter by the neighbour who lives at 2 Cliff Avenue, it is appropriate that the orders of the Court (subject to the provision of corrected plans and of physical and electronic copies of the final agreed conditions of consent) will be that:

1. The appeal is upheld; and

2. Development Application DA 2014/1049 for the Torrens title subdivision of an existing residential allotment at 190 Lorraine Street, Peakhurst Heights into two allotments is granted development consent (subject to the finalised conditions that will be provided to me).

Tim Moore

Senior Commissioner

NOTE: The conditions were later provided and the attached orders made.

10312 of 2015 - Moore orders - 22 June 2015 (214 KB, pdf)