Randall v Ashfield Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Randall v Ashfield Council [2012] NSWLEC 1287

Hearing dates:

30-31 August 2012Conditions filed 14 September 2012

Decision date:

17 October 2012

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

See paragraph 44 and 45

Catchwords:

DEVELOPMENT APPLICATION, residential units. Height, streetscape and solar access.

Legislation Cited:

Ashfield Local Environmental Plan 1985
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No. 1 - Development Standards.

Cases Cited:

Project Venture Developments v Pittwater Council [2005] NSWLEC 191

Category:

Principal judgment

Parties:

David Randall (Applicant)

Ashfield Council (Respondent)

Representation:

Ms S Duggan, barrister (Respondent)

Mr G McKee, solicitor (Applicant)
Solicitors
McKees Legal Solutions (Applicant)

Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10530 of 2012

Judgment

1. This is an appeal against the refusal by Ashfield Council (council) of a development application (DA10.2012.051) under the Environmental Planning and Assessment Act 1979 (the Act) for the demolition of existing industrial buildings, alterations and additions to the existing heritage item, construction of 27 dwellings within 4 new residential buildings and a new underground car park for 43 cars at 67-75 Smith Street, Summer Hill (site).

1. The contentions that remain in dispute are whether the height of the terrace houses on Smith Street is acceptable and whether their two storey form is consistent with the streetscape and whether the dwellings within the development achieve an adequate level of solar access.

The site and its context

1. The site comprises three adjoining allotments known as 67, 71 and 75 Smith Street, Summer Hill and is located on the northern side of the road between Lackey and Fleet Streets. It has a frontage of 45.89 m, depth of 68.15/ 83.75 m and site area of 3567 sq m.

1. A two storey factory building is located at No. 71 and a staff carpark is provided on No. 75. The dwelling house at 67 Smith Street is listed as a heritage item under Ashfield Local Environmental Plan 1985 (LEP 1985) and is currently used as an office associated with the neighbouring industrial use. A substantial garden area exists to the front of this property.

1. Surrounding development is mixed, with residential, industrial and commercial buildings in close proximity to the site. Adjoining development to the west of the site is a row of single storey attached dwellings (79-89 Smith Street) with a residential flat building at the rear (91A Smith Street). To the east, are industrial buildings (51-61 Smith Street). Dwelling houses are located further east and the Summer Hill local village is further west. An industrial building (96 Smith Street) and dwellings are located immediately opposite the site. Dwellings adjoin the site to the rear with frontages to Carlton Crescent.

The proposal

1. During the hearing, the applicant was granted leave to rely on amended plans. The main change made was the deletion of an "attic" third storey within the roof space of the proposed buildings. The effect of that…