Yam v Ashfield Municipal Council - [2010] NSWLEC 1043

Land and Environment Court

of New South Wales

CITATION: Yam v Ashfield Municipal Council [2010] NSWLEC 1043

PARTIES:
APPLICANTS:
Austin and Lindy Yam
RESPONDENT:
Ashfield Municipal Council

FILE NUMBER(S): 10506 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Dual occupancy, impact on adjoining dwellings and impact on heritage item and streetscape, weight to draft local environmental plan

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

CASES CITED: Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) LGERA 195; [2003] NSWCA 289
Zhang v Canterbury City Council (2001) 51 NSWLR 589; (2001) 115 LGERA 373; [2001] NSWCA 167

DATES OF HEARING: 7 December 2009

DATE OF JUDGMENT:
5 March 2010

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr J Johnson (barrister)
SOLICITORS:
Luk & Associates
RESPONDENT:
Ms P Burns (solicitor)
SOLICITORS:
Maddocks Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

Friday, 5 March 2010

10506 of 2009 Austin and Lindy Yam v Ashfield Municipal Council
JUDGMENT

1 The applicant in these proceedings is seeking to demolish the existing dwelling house and erect an attached dual occupancy on the land known as No. 8 Ormond Street, Ashfield.

Site and Environs

2 The subject site is Lot 37 section 13 in DP439. The site area is about 923 square metres with a frontage of 15.2 metres and the topography of the site falls gently to the rear. The site is located on the northern side of Ormond Street bounded by Bruce Street to the west and Pembroke Street to the east.

3 Currently on the site is a dwelling house originally constructed soon after 1879 when the land was subdivided as the Underwood Estate. Extensions to the dwelling were carried out around 1890 and further alterations and additions were made prior to 1930 and the building was converted to three flats. however it has been extended. The original front portion is single storey of rendered brick construction whilst the rear two storey addition consists of brick and fibro.

4 The Council has identified two trees on the site that is the Sydney Red Gum near the rear boundary and a Camphor Laurel tree near the western boundary approximately two thirds into the block.

5 The precinct in which the site is located has a variety of dwelling types, forms and architecture constructed over different periods, ranging from single bungalows to semi-detached dwellings, dual occupancies and residential flat buildings. The subject site together with number 4 and 6 were the first homes in the area with a large number of dwellings built later in the inter war period. The residential flat buildings in the area were erected in about the 1960’s to 1980’s.

6 The residential building at No. 2 Ormond Street is a heritage item constructed in about 1890…

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: [2010] NSWLEC 1043
Decision Date: 5 March 2010

CaseChat Overview and Summary

Austin and Lindy Yam sought to demolish the existing dwelling house on the property at No. 8 Ormond Street, Ashfield and erect a dual occupancy building. The Ashfield Municipal Council opposed the application. The key issues before the court were whether the proposed development was consistent with the statutory planning controls, the impact on the adjoining dwellings, the impact on the heritage item at number 4 Ormond Street and the streetscape, and the weight to be given to the draft amendment No. 105 to the LEP. The court considered the evidence of experts, the site inspection, and the statutory planning regime. The court found that the proposed development did not warrant approval as it did not provide a reasonable fit and respond to the streetscape. The design and configuration of the proposed building was unacceptable and not informed by its context. The court also found that the proposed development would have an adverse impact on the adjoining dwelling at number 6 Ormond Street and the heritage item at number 4 Ormond Street. The court dismissed the appeal and refused consent for the development application.

Orders