Tawadrous v Hurstville City Council

[2006] NSWLEC 330

Land and Environment Court

of New South Wales

CITATION:	Tawadrous v Hurstville City Council [2006] NSWLEC 330
PARTIES:	APPLICANT George Tawadrous RESPONDENT Hurstville City Council
FILE NUMBER(S):	10164 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of all existing improvements and the erection of a detached dual occupancy with Torren's title subdivision - minimum lot width
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 1994
DATES OF HEARING:	14/06/06
EX TEMPORE JUDGMENT DATE:	06/14/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr R Creighton, agent RESPONDENT Mr P Rigg, solicitor SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

14 June 2006

10164 of 2006 George Tawadrous v Hurstville City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application No. 20040654 by Hurstville City Council (the council) for the demolition of all existing improvements and the erection of a detached dual occupancy with Torren's title subdivision at 61 Croydon Rd, Hurstville (the subject site).

2 The hearing was conducted as an On Site Hearing and the judgement reflects the contents in the Statement of Basic Facts and the findings given on site.

3 The subject site is within Zone 2-Residential under Hurstville Local Environmental Plan 1994. The proposed use is permissible within this zone.

4 Development Control Plan No. 11 - Dual Occupancy Housing (DCP 11) applies. Relevantly, cl 2.1.2 provides that a dual occupancy development can only be built on land that has a minimum width of 15 metres.

5 The council provided a Statement of Issues containing three separate issues. The council did not press the roof pitch issue (Issue 2) at the hearing. The remaining issues relate to the non-compliance with the minimum width requirement (Issue 1) and flowing from one letter of objection, the concern that the proposed development was not in the public interest (Issue 3).

6 On the minimum width requirement issue, the subject site has a width of 14.755m or a deficiency of 245mm when compared against the DCP 11 requirement. Clause 2.1.2 provides the following objectives:

• Ensure a more certain building outcome while creating:
• a coherent and attractive streetscape;
• off-street parking and vegetation corridors at the rear of sites; and
• better opportunity for natural light, ventilation and privacy.
  

7 From the council officers report, I note that the proposed development satisfies all other requirements in DCP 11. These relate to minimum site area, front setback, rear setback, side setback, floor space ratio, maximum external wall height, maximum ridge height, floor-to-ceiling height and car parking.

8 If the variation to the minimum width requirement is considered against the objectives and taking into consideration the compliance with all other relevant requirements in DCP 11 then the non-compliance with the minimum width requirement can be comfortably supported. The non-compliance is unlikely to be noticed particularly considering the compliance with the DCP 11 setback requirements.

9 On the issue of the public interest, the submission raises a range of matters including a breach of the floor space ratio, excessive height and bulk, unacceptable impacts on the streetscape, driveway location, loss of privacy and. inadequate open space. These concerns are addressed in some detail in the council officers report. The concerns relating to breaches of DCP 11 were found to be incorrect and I accept that the other concerns are satisfactorily addressed.

10 For these reasons, the Orders of the Court are:

1) The appeal is upheld.

2) Development Application No. 20040654 for the demolition of all existing improvements and the erection of a detached dual occupancy with Torrens's title subdivision at 61 Croydon Rd, Hurstville is approved subject to the conditions in Annexure A.

3) The exhibits are returned with the exception of exhibits A and 5.
______________
G T Brown
Commissioner of the Court