Pikoulas v Canterbury City Council

[2007] NSWLEC 648

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Pikoulas v Canterbury City Council [2007]  NSWLEC 648

PARTIES:
APPLICANT
Aristomenis Pikoulas

RESPONDENT
Canterbury City Council

FILE NUMBER(S):    10619 of        2007

CATCHWORDS:      Development Consent :- Alterations and Additions to existing shop and dwelling, second dwelling house, dual occupancy - prohibition, car parking.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Canterbury Local Environmental Plan 138-Canterbury Precinct
Canterbury Development Control Plan 20 - Car Parking Code

CASES CITED:

CORAM:        Bly C

DATES OF HEARING:          13/09/2007

EX TEMPORE DATE:          13 September 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr A. Pikoulas, litigant in person

RESPONDENT
Ms P. Hudson, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

13 September 2007

10619 of 2007  Aristomenis Pikoulas v Canterbury City Council

This decision was given extemporaneously.  It has been revised and edited prior to publication.

JUDGMENT

1. Existing at No. 17 Crinan Street, Hurlstone Park, are two separated buildings.  The two-storey building fronting Crinan Street contains a ground floor shop with an associated dwelling extending over both levels.  The detached rear out-building facing Marcia Lane, accommodates a ground floor garage with two levels above, one being a mezzanine floor.  These two upper levels were constructed essentially in accordance with a Development Consent No. R8256/96, which was granted by the council on 30 May 1996.

1. The effect of that consent was to extend the dwelling situated within that part of the building fronting Crinan Street. The applicant has now lodged a s 96 application to convert the upper levels of the garage building so as to provide a living room, a dining room, a kitchen, a bedroom and a bathroom.  By comparison with the existing consent, this application, if approved, would have the effect of creating a second dwelling on this site.

2. The application was notified and no objections were received. 

1. The application was subsequently refused by the council on 9 November 2006 for reasons comprising insufficient car parking, taking into account the requirements of council’s Car Parking Code - Development Control Plan 20 (“the DCP”) and the proposal to create a second dwelling on the site not being in keeping with the intent of the original development consent.

1. The issues in contention as filed and served by the respondent council are essentially threefold.  First, the development would result in the land being used for the purposes of a dual occupancy which is prohibited within the applicable 3(a) General Business zone under Canterbury Local Environmental Plan 138-Canterbury Precinct (“the LEP”).  The second issue is that the proposed modification would result in a development which is not substantially the same development as that for which the consent was originally granted in contravention of the requirements of section 96 of the Environmental Plan and Assessment Act 1979 (“The Act”).  The third issue is whether the provision of car parking would be sufficient, taking into account the availability of on-street parking and the requirements of the car parking DCP.

1. In the 3(a) zone of the LEP, a dwelling house and dual occupancy development are prohibited purposes and it is submitted on behalf of the respondent that this development, if altered as proposed thus creating two dwellings, would constitute a dual occupancy which is prohibited.  On that basis it was submitted on behalf of the council that the appeal should be dismissed.  Despite this, the 3(a) zone permits “dwellings with office premises or shops with development consent.”  It was submitted that this should be interpreted such that there could be approved: one dwelling with one shop or one office; or two dwellings with two shops or two offices and the like.  It was submitted that this should not be interpreted to mean that there could be one shop or one office with two dwellings.

1. In my view, the provisions of the LEP are somewhat ambiguous.  It  nevertheless seems that it would be reasonably possible, for there to be a family business of some kind on a site (such as this) with two dwellings occupied by families whose principal enterprise or employment is with that single shop or office and that the LEP would facilitate this.  I also believe that it is not so simple as to say that as a result of there being two dwellings on this site, that this becomes a dual occupancy.  Instead it could be considered to be two dwellings in conjunction with a shop or an office.  I also note that multiple unit housing with office premises or shops is a permissible form of development in the 3(a) zone.  In these circumstances, I am not persuaded that what is here proposed is prohibited by the LEP. 

1. The next question that I need to deal with is that of whether, once amended, the development would be substantially the same development as that for which the consent was originally granted.  It was submitted that there are three tests that arise out of s 96 of the Act that must be applied whether the proposal has minimal environmental impact; whether it is substantially the same as the original development consent; and whether there were any submissions received as a result of public notification.

1. I have already noted that the application was notified and there were no submissions.  As for the question of whether the proposal is substantially the same as that for which, as that which was originally approved, it is plain that if this consent were granted the existing arrangement comprising a shop and a single dwelling, (notwithstanding that that single dwelling is divided into two elements separated by a courtyard), would be changed to a shop and a dwelling incorporated within the same structure, plus a separate second dwelling above the existing garage.

1. I was referred to a number of cases which indicate the tests that can be applied in determining the question of substantially the same.  They use words like “the same essence” or “essentially or materially the same”.  In one sense the modified development would have a similar essence, that is, commercial and residential elements.  However, I have considerable doubt that the second dwelling would have the same relationship with the shop as does the existing dwelling.  There is nothing to stop this second dwelling from being rented to persons having no relationship with the shop and a change in character would result.  Moreover, the essence of the development would be different, there being two rather than one dwelling and this is in my view, a material change.  As a consequence, I am not satisfied that the proposal would be substantially the same development as that which was originally approved. 

2. As for the question of minimal environmental impact, it was submitted that this essentially relates to the insufficiency of car parking provided on the site.  The car parking DCP, according to Mr Hargraves, would require one space for the existing shop, two spaces for the main dwelling and one space for the proposed second dwelling, a total of four spaces.  Three spaces are provided in the garage but concern was expressed that these spaces are so configured that if all three are occupied, two of the vehicles within the garage could not leave without the third space being vacated. In essence, a triple tandem arrangement.  In my view, having noted the size of the two dwellings, and taking into account the requirements of the DCP, four car parking spaces would not be essential and that three spaces, one for each of the dwellings and one for the shop, would be sufficient, but given the configuration, this would nevertheless, be unsatisfactory.  Whilst a tandem parking arrangement would be satisfactory for an interrelated dwelling and shop it is reasonable to expect that a least two of the three spaces could be utilised independently.  This cannot occur and as a consequence an increased use of on-street parking to the detriment of the commercial locality is likely.  Hence, I do not accept that the proposal would have a minimal environmental impact. 

1. These matters lead me to the conclusion that the s 96 application fails the tests of that section and as a consequence, the appeal must be dismissed.  The application also fails on its merits, having an unsatisfactory car parking arrangement.  The exhibits, other than exhibits 2,3 and B are returned.

___________________

T A Bly
Commissioner of the Court

ljr