Penrose v Inner West Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Penrose v Inner West Council [2020] NSWLEC 1028
Hearing dates:	26 November 2019
Date of orders:	21 January 2020
Decision date:	21 January 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development consent is granted to Development Application D201900054 for demolition, ground and first floor additions to the dwelling house at 23 Thompson Street, Marrickville (Lot 3 DP 101200) subject to the conditions in Annexure A. (3)   The Exhibits are returned with the exception of Exhibits 1, A and B.
Catchwords:	DEVELOPMENT APPLICATION – first floor alterations and additions – whether the bulk, scale and setbacks are appropriate – period development controls – consideration of neighbours’ objections – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004Marrickville Local Environmental Plan 2011
Cases Cited:	Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Veloshin v Randwick Council [2007] NSWLEC 428 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Geoff Penrose (First Applicant) Claire Penrose (Second Applicant) Inner West Council (Respondent)
Representation:	Counsel: G Penrose (Litigant in person) (First Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Inner West Council (Respondent)
File Number(s):	2019/106384
Publication restriction:	No

Judgment

Nature of the appeal and outcome

1. COMMISSIONER: The Applicants lodged Development Application No. DA20190054 with Inner West Council on 19 February 2019. The Applicants seek consent to demolish part of the existing dwelling and carry out ground and first floor additions to the dwelling house. The works are proposed at 23 Thompson Street, Marrickville. The Council refused consent on 15 April 2019. The Applicants are appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

2. The appeal was subject to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act). No agreement was reached the conciliation conference was terminated pursuant to s 34AA(2)(b) of the LEC Act and the proceedings dealt with as a hearing.

3. The Council maintains that the development application should be refused for the following reasons:

1. The development presents a bulk and scale that is excessive in terms of the surrounding street context, and provides insufficient setbacks to adjoining properties;

2. The proposed building form and design, as well as the location of the first floor addition, do not complement or enhance the existing streetscape. Further, the proposed development will result in an unacceptable loss of period features of the existing dwelling; and

3. The proposed upper floor addition will result in adverse overlooking and visual and acoustic privacy impacts to the adjoining neighbours.

4. Following consideration of the evidence presented and the submissions of the parties, I have determined that the development application warrants approval on the following…