Topolovec B and A v Baulkham Hills Shire Council

[2004] NSWLEC 201

Land and Environment Court

of New South Wales

CITATION:

Topolovec B & A v Baulkham Hills Shire Council [2004] NSWLEC 201

PARTIES:

APPLICANT
B & A Topolovec

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11616 of 2003

CORAM:

Tuor C.

KEY ISSUES:

Development Application :- bulk and scale
impact on adjoining neighbour.

LEGISLATION CITED:

Baulkham Hills Local Environmental Plan 1991

CASES CITED:

DATES OF HEARING:

05/04/2004

EX TEMPORE
JUDGMENT DATE :

04/05/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson, solicitor
SOLICITOR
Ellis McLachlan Solicitors

RESPONDENT
Mr J Hogan-Doran, solicitor
SOLICITOR
Coleman & Creig Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11616 of 2003 Tuor C 5 April 2004

B & I Topolovec
Applicant

v Baulkham Hills Shire Council
Respondent

Judgment

1 . This is an appeal against Baulkham Hills Shire Council's (the council) refusal of a development application to construct a house at 31 Glenhope Road, West Pennant Hills. Council and the applicant agreed to seek consent orders from the Court. I had the advantage of a site visit and heard from residents who objected to the proposal.

2 . The site is zoned 2(b) under Baulkham Hills Local Environmental Plan 1991 (LEP 1991) and dwelling houses are permissible within this zone. The site and the adjoining site at No. 33 are subject to a covenant under s 88B of Conveyancing Act . The covenant limits development on this and the adjoining site to a single storey and arose, as I understand it, out of the approval to subdivide No. 29 Glenhope Road into three allotments.

3 . The adjoining house at No. 33 Glenhope Road was built in conformity with the requirements of the covenant and is single-storey. The parties considered that the proposed dwelling was single-storey on the basis that there is no definition of storey in the LEP but under the Building Code of Australia (BCA), the lower level was not a storey as it contained only a garage and laundry and the intent of the covenant was therefore achieved.

4 . The Court heard from adjoining residents, and their barrister Mr Young, and considered a letter on behalf of the owner of 29 Glenhope Road from Michell Sillar, Lawyers, that put forward a contrary opinion as to whether the building was single storey or not. In examining this question I have had regard to the purpose of the covenant which, as I understand it, was to limit the impact of development of the two new allotments on the streetscape and on adjoining properties as this development would not be set back 15 m from the road alignment.

5 . The proposal, whether technically two-storeys or not, will appear for part of it as a two-storey dwelling and the question is whether this will be acceptable in relation to the streetscape and have an acceptable impact on the amenity of adjoining neighbours, particular No. 33, the single-storey house to the south of the proposal.

6 . I accept the evidence of Mr Minto, the town planner for the applicant, that the proposal will have an acceptable impact. The existing character of the street is large, two storey houses with landscaped setbacks from the street. The proposal is of a bulk, scale and setback that is consistent with this character and does not result in unreasonable privacy and overlooking impacts on No. 33 Glenhope Road. On this basis I therefore accept the consent orders.

7 . In relation to the applicant's proposed condition 17, which seeks to remove the covenant, I accept council’s submission that the imposition of this condition is not necessary to enable the consent to operate. From the evidence that is before me it is not appropriate for the covenant to be removed from the title.

Orders

The orders of the Court by consent are:
1. The appeal is upheld.

2. The development application for construction of a dwelling at 31 Glenhope Road, West Pennant Hills, is determined by approval subject to the conditions as Annexure "A"”

3. Exhibits except Exhibits C and 5 may be returned.

_________________________
Annelise Tuor
Commissioner of the Court