Planit Consulting v Leichhardt Council - [2008] NSWLEC 29

Land and Environment Court

of New South Wales

CITATION: Planit Consulting v Leichhardt Council [2008] NSWLEC 29

PARTIES:
Applicant:
Planit Consulting Pty Ltd
Respondent:
Leichhardt Municiapl Council

FILE NUMBER(S): 10885 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application :- demolitions application; whether application for replacement buildings required

CASES CITED: Parrott v Kiama [2004] NSWLEC 77
Jones v Leichhardt Municiapal Council [2004] NSWLEC 379

DATES OF HEARING: 17/01/2008 and 18/01/2008

DATE OF JUDGMENT:
24 January 2008

LEGAL REPRESENTATIVES: Applicant:
Mr M Baird, barrister
Respondent:
Ms J Walsh, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

24 January 2008

10885 of 2007 Planit Consulting Pty Ltd v Leichhardt Municipal Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Leichhardt Municipal council (the council) of a development application to demolish most of the existing structures on, and remediate the contaminated areas of lots A and B DP 395221 and Part lots 3 and 4 DP 456207, known as 1-5 Tilba Avenue, Balmain.

2 The site is on the western side of Tilba Avenue. Its eastern side adjoins Iron Cove. It comprises four allotments, lots A and B DP 395221 and Part lots 3 and 4 DP 456207. Lot A is 7.5m wide and has an area of 462m2; lot B is 10.8m wide and has an area of 645m2; lot 3 has a width of 7.4m and an area of 405m2; and lot 4 has a width of 4m and an area of 202m2. The total width of the four allotments is about 30m, while the total area is 1,820m2.

3 The existing house spans across the four allotments, almost side boundary to side boundary. It is the result of an extension of a pair of semi-detached houses on lots A and B. The extension fills in the site from the wall of the original semi (which was set back 2-3m from the southern boundary to the southern boundary of lot 4. As a result the house allows no views from Tilba Avenue to the Harbour.

4 The site falls from the road to the rear to Iron Cove about 9m. The ground level of the existing dwelling is about 3m below the road level. Adjoining to the north is 1A Tilba Avenue, a free-standing two-storey house with a garage facing Tilba Avenue on a site with a width of about 15m. To the south is 7 Tilba Avenue, containing a house on an allotment of about 20m-width. South of that property is 9 Tilba Avenue on an allotment of about 6-7m. (These dimensions were judged by eye on the locality map.) There are heritage items nearby at 8 and 18 White Street. The site is within a heritage conservation area.

5 The applicant proposes to demolish the existing buildings, swimming pool and tennis court on the site, leaving only some retaining walls and steps. The applicant also proposes to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Planit Consulting v Leichhardt Council

Details

AGLC: Planit Consulting v Leichhardt Council [2008] NSWLEC 29
Case: [2008] NSWLEC 29
Decision Date: 24 January 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Planit Consulting Pty Ltd v Leichhardt Municipal Council involves an appeal against the council's deemed refusal of a development application to demolish existing structures on certain lots in Balmain. The applicant seeks to demolish the existing house and remediate contaminated areas on lots A and B DP 395221 and Part lots 3 and 4 DP 456207, known as 1-5 Tilba Avenue. The council argued that the demolition application should be accompanied by an application for the replacement buildings, claiming it would ensure that the new buildings would comply with the council's controls for residential development. The applicant contested this requirement, arguing that the demolition and remediation proposal itself had no adverse impact.

The court considered the legal issues, focusing on whether the demolition application should indeed be accompanied by an application for the replacement buildings. The council's contention was based on the need to promote and coordinate the orderly and economic use and development of land, as well as taking the public interest into account. The objectors raised concerns about noise, impact on water views, and drilling into rock, though the court noted that these were adequately addressed by the conditions of consent. The court heard expert evidence from both parties, who agreed that there were no adverse impacts from the proposed demolition and remediation.

The court reasoned that the council's requirement for an integrated redevelopment application was unjustified. It found that even without such an application, the three resulting allotments could be developed in compliance with the council's controls. The court also noted that an integrated proposal might not necessarily offer better urban design outcomes, as separate development could allow for more water views through gaps between buildings. Furthermore, the court decided that the draft amendment to the Development Control Plan, which would generally require a development application for demolition to include an application for replacement buildings, should not apply in this case as the allotments were capable of being developed in compliance with the council's controls.

Concluding that the council's requirement was unjustified, the court upheld the appeal. The development application to demolish most of the existing structures and remediate the contaminated parts of the lots was granted subject to the conditions specified in annexure A. The exhibits were returned except for two specific exhibits.

Orders