Ross v Lane Cove Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ross v Lane Cove Council [2012] NSWLEC 1364

Hearing dates:

18 and 19 December 2012

Decision date:

19 December 2012

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

See paragraphs 21 & 22

Catchwords:

Modification application:-retrospective approval of modification to a residential dwelling; amenity/privacy impacts, bulk and whether the development as modified is substantially the same

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Lane Cove Development Plan 2010
Lane Cove Local Environmental Plan 2009
Sydney Harbour Foreshore DCP
Sydney Regional Environmental plan (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Mr R Ross (Applicant)

Lane Cove Council (Respondent)

Representation:

Mr R O'Gorman-Hughes Barrister (Applicant)

Mr S Griffiths (Respondent)
Solicitors
Duncan Scott Solicitors (Applicant)

Pikes & Verekers Lawyers (Respondent)

File Number(s):

11079 of 2012

Ex tempore Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. The Council has issued development consent for the construction of a large dwelling house at 8 Bayview Street, Northwood (the site). The applicant has commenced development in accordance with the development consent - (DA325/07) dated 2 April 2008- but carried out unauthorised modifications to the approved design. He seeks approval of the modifications and has lodged a modification application under section 96 Environmental Planning and Assessment Act (the Act) to modify the consent retrospectively.

1. The modification application was referred to the Council's Independent Hearing and Assessment Panel (IHAP) for determination. The application was refused on 2 October 2012. This is an appeal under s 96(2) of the Act against that decision.

1. The background facts and relevant statutory controls are set out in the Council's Statement of Facts and Contentions (Exhibit 1). It describes the site as located on the eastern side of Bayview Street, which ends at the northern edge of the site. The allotment is irregular in shape and falls toward the street and rises very steeply toward the eastern boundary.

1. The Lane Cove Local Environmental Plan 2009 (LEP) zones the site R2-Low Density Residential and the development is permissible with consent. The Lane Cove Development Plan 2010 (DCP) and Sydney Regional Environmental plan (Sydney Harbour Catchment) 2005 and Sydney Harbour Foreshore DCP also apply. Other relevant statutory controls are set out in Exhibit 1.

1. Neighbouring the site to the south is a two-storey brick and tile dwelling house. Toward the north is a two-storey dwelling house separated by a vehicular driveway that leads to a dwelling house towards the north west. Both of the adjoining neighbours object to the application.

1. The matter was heard pursuant to s 34AA of the Land and Environment Court Act 1979(the LEC Act). Therefore, the proceedings commenced onsite with a view before the parties entered into a Court facilitated conciliation. A number of local residents attended the view and addressed the Court about their objections to the development. Their written submissions, received by the Council during the exhibition period, are in evidence in…