Summers v Ashfield Council - [2009] NSWLEC 1276

Land and Environment Court

of New South Wales

CITATION: Summers v Ashfield Council [2009] NSWLEC 1276

PARTIES:
APPLICANT
Paul Alexander Summers & Rosemary Summers
RESPONDENT
Ashfield Council

FILE NUMBER(S): 10169 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION - SECTION 97 APPEAL :- Alterations and additions containing first floor addition. Impact on streetscape and adjoining properties, overshadowing and bulk.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ashfield Local Environmental Plan 1985
Ashfield Development Control Plan 2007

CASES CITED: Pafburn v North Sydney [2005] NSWLEC 444
Zhang v Canterbury City Council [2001] NSWCA 167 CCA
Parsonage v Ku-ring-gai Council [2004] NSWLEC 347

DATES OF HEARING: 11 June 2009 and 6 July 2009

EX TEMPORE JUDGMENT DATE: 6 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Dr Bervling (barrister)
Bruce T Goldsmith (BTG Planning)
RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

6 July 2009
10169 of 2009 Paul Alexander Summers & Rosemary Summers v Ashfield Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Ashfield Council’s refusal of a development application for alterations and additions to the property known as 4 Service Avenue, Ashfield.

2 By way of background, this commenced as an on-site s 34 conciliation conference and at that time the Court and the parties discussed the provisions of the development control plan and the development application plans were also considered at length together with alternatives.

3 Today the Court has assessed amended architectural plans known as Exhibit A in the proceedings to which the respondent does not object.

4 The area can be described as containing single dwelling houses in a subdivision pattern reflective of a middle ring suburb, that is relatively smaller than outer suburbs. The size of the allotment is some 408 metres squared, having dimensions of 10 metres wide by 41 metres in depth.

5 The proposal is for alterations and additions. The ground floor plan would be altered to provide for stairs to access the upper first floor level. It is proposed that the upper level provide for a study, bathroom, main bedroom and walk-in robe.

6 The issues that were initially identified by the council were contained in the statement of issues. Suffice to say that the issues have been confined now to the third issue identified in that statement which is that the proposed development should be refused as it will result in excessive reduction in solar access to the neighbouring house at 16 Service Avenue Ashfield.

7 When the Court first met with the parties during the conciliation process there were issues such as streetscape, the amount of deep soil planting, loss of privacy, and the precedential effect. The plans have been amended such that the concerns of the heritage advice to the council have been addressed in terms of the streetscape.

8 It is…

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 Summers v Ashfield Council

Details

AGLC: Summers v Ashfield Council [2009] NSWLEC 1276
Case: [2009] NSWLEC 1276
Decision Date: 6 July 2009

CaseChat Overview and Summary

In the case of Summers v Ashfield Council, the applicant, Paul Alexander Summers and Rosemary Summers, sought to appeal the council's refusal of a development application for alterations and additions to their property at 4 Service Avenue, Ashfield. The primary concern raised by the council was the potential for excessive reduction in solar access to the neighbouring house at 16 Service Avenue Ashfield. The court assessed the amended architectural plans and found that the proposal complied with the floor space ratio and landscaped area requirements. The court also considered the impact on the streetscape and heritage conservation, concluding that there would be no impact on heritage items within the vicinity.

The court focused on the solar access issue, finding that the proposal met the council's development control plan requirements. The council argued that the solar access impact was significant and should be reduced by lowering the wall height by 300 millimetres. The court, however, concluded that the additional sunlight received by the adjoining property would be insignificant and that the reduction in wall height would result in a considerable disbenefit to the amenity and usability of the upstairs addition. The court determined that the application, as shown in exhibit A, was worthy of approval.

The court granted the appeal and approved the development application, subject to specific conditions including design changes, fire protection, privacy, and bulk considerations. The court also outlined various conditions that must be satisfied prior to issuing a construction certificate, during construction or demolition, and before the building is occupied. The court's decision was based on the careful consideration of planning principles, the reasonable expectations of applicants, and the context of the local planning regime.

Orders