Stephenson v Hurstville City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stephenson v Hurstville City Council [2012] NSWLEC 1289
Hearing dates:	31 August 2012
Decision date:	17 October 2012
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION - Additions to existing commercial premises - Overshadowing - Visual impact, bulk and scale - Zone transition
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994
Cases Cited:	Pafburn v North Sydney Council [2005] NSWLEC 444 Parsonage v Ku-ring-gai Council [2004] NSWLEC 347 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Category:	Principal judgment
Parties:	Wayne Stephenson (Applicant) Hurstville City Council (Respondent)
Representation:	Solicitors Mr J Burrell, J Burrell Solicitors (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	10630 of 2012

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application No. 11/DA-156 for additions to the rear of premises from which Beverley Hills Mowers and Chainsaws has operated its business for a number of years at 108 Stoney Creek Road, Beverly Hills (the site).

1. The development application was lodged on 12 May 2011. The plans have been modified since the application was originally lodged and those now before the Court propose the construction of a two storey addition comprising ground level parking and loading area and first floor store and accessible toilet. It is also proposed to construct a carport at the north-western end of the site. The Council refused consent on 16 May 2012.

1. The contentions in the case are whether the overshadowing impacts of the development are acceptable and whether the bulk and scale of the proposal is consistent with the zone objectives and provides an appropriate transition between zones.

The site and its context

1. The site is located on the north-west side of Stoney Creek Road and is at the south-eastern end of a small neighbourhood shopping centre which begins at the intersection with Penshurst Street.

1. The site currently contains a two storey building comprising the ground floor commercial use, and associated workshop, and first floor shop top housing. The site falls from the street to the rear by approximately 2.73 m. The rear of the site is used for storage and parking. Pedestrian access to the site is from Stoney Creek Road and a 3.05 m wide right of carriage way to the rear of the site provides vehicle access off Penshurst Street. Goods are delivered by suppliers to the business at the entrance on Stoney Creek Road. The rear lane is used for loading equipment such as trimmers and mowers into a van for deliveries.

1. Similar development is located towards Penshurst Street. The south-western boundary of the site is the zone boundary with the Zone No 2 (Residential) area, and a single storey dwelling house immediately…