Lam D v Hurstville City Council [2007] NSWLEC 602

Lam D v Hurstville City Council [2007] NSWLEC 602

Consent was granted because, despite remaining deficiencies including car parking and the existence of the covenant, the proposal was permissible with consent, the applicant accepted conditions ensuring the shop and residence would not be separately leased, occupied or subdivided, and agreed to works improving amenity, including a new toilet and hand basin, removal of storage items and landscaping. The Court was satisfied it had power under the Environmental Planning and Assessment Act 1979 to grant approval and that the covenant could be varied consistently with the judgment.

Jurisdiction
Australia
Judgment Date
19 September 2007
Procedural Posture
Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Section 34 Conference; Ex Tempore Judgment
Outcome
Appeal upheld; development application approved subject to conditions and covenant variation ordered.
Legal Topics
['development Application' 'change of Use From Shop to Residence' 'section 88 B Covenant' 'amenity Impacts' 'car Parking' 'existing Use Rights']
['planning and Environment Law' 'development Consent' 'property Law'] ['development Application' 'change of Use From Shop to Residence' 'section 88 B Covenant' 'amenity Impacts' 'car Parking' 'existing Use Rights']

Case Brief

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Procedural Posture

Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Section 34 Conference; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether development consent should be granted for a change of use from existing storerooms of a single-storey brick shop to a residence.' 'Whether Condition 7 and the restriction as to user under s 88B of the Conveyancing Act 1919 should be varied to permit residential use.' "Whether the proposal's amenity, car parking and Interim Residential Development Code non-compliances warranted refusal."]

Ratio Decidendi

Consent was granted because, despite remaining deficiencies including car parking and the existence of the covenant, the proposal was permissible with consent, the applicant accepted conditions ensuring the shop and residence would not be separately leased, occupied or subdivided, and agreed to works improving amenity, including a new toilet and hand basin, removal of storage items and landscaping. The Court was satisfied it had power under the Environmental Planning and Assessment Act 1979 to grant approval and that the covenant could be varied consistently with the judgment.

Court Disposition

Appeal upheld; development application approved subject to conditions and covenant variation ordered.

Orders

  • ['The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.' 'Development application No 2006/DA-577 lodged with the respondent council on 11 December 2006, to change the use of existing storerooms of a single-storey brick shop to a residence at Lot 1 of SP 71364, known as Unit 1/ 47...