Salanitro-Chafei v Ashfield Council - [2005] NSWLEC 366

Land and Environment Court

of New South Wales

CITATION:
Salanitro-Chafei v Ashfield Council [2005] NSWLEC 366

PARTIES:
Applicant:
Roy Salanitro-Chafei
Respondent:
Ashfield Council

FILE NUMBER(S):
10361 of 2005

CORAM:
Roseth SC

KEY ISSUES:
Development Application :- Planning principle: relationship of density to residential character

DATES OF HEARING: 24/06/2005

DATE OF JUDGMENT:

07/08/2005

LEGAL REPRESENTATIVES:
Applicant:
Mr M Seymour, barrister instructed by Mr D Andrews of Colquhoun & Colquhoun
Respondent:
Mr P Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 July 2005

10361 of 2005 Roy Salanitro-Chafei v Ashfield Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Ashfield Council (the council) of a development application to demolish the existing house and erect a new two-storey house on lot 10 DP 965912 s4, known as 31 Cromwell Street, Croydon Park.

2 The site is on the southwest corner of Cromwell and Arthur Streets. It now contains a timber and iron single-storey house in dilapidated condition. Its area is 479m2. To the south it adjoins 33 Cromwell Street. To the west it adjoins 46 Carshalton Street.

3 While it is not a conservation area, the surrounding area exhibits a high level of consistency of scale and character. The majority of buildings are single-storey and date from before World War II. There are several heritage items and proposed heritage items in the vicinity.

4 The applicant proposes to demolish the existing house on the site and to construct a new two-storey house with a floor area of about 325m2. (I note that the development application states on page 3 that the floor area is 290m2, and on page 4 that it is 386m2; however, according to my measurements, neither of these areas is correct.) The area to be covered by building is to be about 275m2 (during the hearing the applicant offered to remove a roof over a carport and a covered area of about 30m2).

5 Local Environmental Plan 1985 (LEP 1985) zones the site Residential 2a, a zone in which the proposed dwelling house is permissible. While LEP 85 establishes a minimum allotment size of 500m2 for new subdivisions, this does not apply to existing allotments. Clause 12 of the LEP permits buildings up to two storeys.

6 Development Control Plan 1 – Dwellings in Residential Zones (DCP 1) establishes several qualitative as well as quantitative criteria for new dwelling houses. The most relevant quantitative criteria in the DCP relate to landscaped area and solar access of neighbouring properties. Clause 8.4.1 requires that 50% of the site be landscaped area at finished ground level. Clause 5.5.2 requires that existing solar access should be maintained to at least 40% of the glazed areas of any neighbouring north-facing living room/dining room windows for a period of at least three hours between 9am and 3pm in mid-winter.

7 The council submitted a Statement of Issues containing…

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.

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Details

Case: [2005] NSWLEC 366
Decision Date: 07/08/2005

CaseChat Overview and Summary

In this case, Roy Salanitro-Chafei sought to demolish the existing house and construct a new two-storey house on his property at 31 Cromwell Street, Croydon Park. The Ashfield Council refused the development application, and Salanitro-Chafei appealed to the Land and Environment Court of New South Wales. The key issues before the court were whether the proposal complied with the 50% landscaped area requirement, whether the proposed dwelling house was unacceptably bulky and out of scale with the character of the surrounding dwellings, and whether the proposal's impact on No 33 Cromwell Street was acceptable.

The court found that the proposal did not comply with the 50% landscaped area requirement in the Development Control Plan 1. The court also determined that the proposed dwelling house was unacceptably bulky and out of scale with the character of the surrounding dwellings. The court noted that the predominant building height in the area was single-storey, and the proposed building was two-storey along its entire Cromwell Street facade, most of its Arthur Street façade, and most of its length along the common boundary with No 33. The court found that the building's bulk would need to be reduced to fit into its surroundings.

Furthermore, the court found that the proposal's impact on No 33 Cromwell Street was unacceptable, as it would deprive the north-facing window of the living room of the adjoining building of all sunlight at mid-winter. The court determined that the proposal did not meet the solar access requirements of the Development Control Plan 1.

In conclusion, the court found that the proposal had two fatal flaws: its bulk and scale would have an unacceptable impact on the streetscape and the character of the locality, and it would deprive the north-facing window of the living room of the adjoining building to the south of all sunlight at mid-winter. The appeal was therefore dismissed, and the development application to demolish the existing house and erect a new two-storey house on the property was refused. The exhibits were returned.

Orders