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[2004] NSWLEC 220
appellant. The Court upheld the appeals and granted consent for demolition of the existing house and erection of a semi-detached dwelling with a common wall between Lots 7 and 8 (Nos. 48 & 48A Woolcott...
The Land and Environment Court allowed two appeals against Canterbury Council's refusals for semi-detached houses at 48/48A Woolcott Street. The council relied heavily on a draft LEP that would restrict one dwelling per two small lots, and on setback and bulk/scale provisions in its Code. The Court accepted expert shadow evidence, found privacy and overshadowing acceptable, concluded the site and proposal (height, levels, setbacks, on-site parking) would relate acceptably to the streetscape, and held that a draft LEP not yet gazetted should not be treated as certain; accordingly the Court granted consent subject to conditions.
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1,666 words · generated 20/08/2026
This is an appeal to the Land and Environment Court (Nos. 11532 & 11533 of 2003) by Mr Bill Boutouridis against Canterbury City Council's refusal of development applications to demolish an existing cottage that straddled two small lots and to erect two semi-detached dwellings at 48 and 48A Woolcott Street, Earlwood. The on-site hearing was held on 26 March 2004 and judgment delivered by Commissioner K G Hoffman on 2 April 2004.
No linked legislation citations have been extracted yet.
Council refused the development and relied on several grounds (see [8]): most centrally that a recently exhibited draft Local Environmental Plan No. 204 (draft LEP 204) inserted new controls (cl 62N) which, the council said, effectively prohibited the proposed development because the land was not a 'developable parcel'. Other refusal grounds were alleged breaches of the Canterbury Single Unit Dwelling House Code (front setback cl 4.1 and side setback cl 4.2), incompatibility with locality character (density, bulk, scale), overshadowing and privacy impacts, and public interest concerns tied to parking and traffic.
The applicant amended plans during the hearing in response to design criticisms (removal of fake parapet, relocation of entries, changes to balustrades and materials, reduced garage widths) which the respondent did not oppose (see [13]-[15]). Expert evidence on shadowing, privacy and thermal performance (a natHERS certificate) was tendered. The court accepted an expert certification of the accuracy of revised shadow diagrams (see [10]).
The Court concluded key factual matters in the applicant's favour: shadowing and privacy impacts were acceptable (see [9]-[11], [19]); the proposal provided on-site parking (four spaces) and would not exacerbate Woolcott Street's traffic or parking because Woolcott is wider and has more on-street capacity than inner narrow-street precincts (see [25]-[29]); and the proposal complied with the council height limit in substance and read as 'in scale' with neighbouring houses when seen in elevation because garage levels and first floor relationships related to adjoining Nos. 46 and 50 (see [31]-[39]). Critically, the Court refused to treat draft LEP 204 as so certain and imminent that it should be conclusive: the Department, Parliamentary Counsel or Minister might alter the draft, possibly inserting a savings clause, so it could not be given decisive weight (see [40]-[41]). The appeals were upheld and consent granted (see [42]).
Two strands of reasoning determined the outcome.
First, on the legal status of the draft LEP: the draft had been exhibited and referred to the Department of Planning, Infrastructure and Natural Resources. However the Court emphasised that exhibition and referral do not make a draft instrument final; changes can still be made in the Department's report to the Minister, in Parliamentary Counsel drafting, or by the Minister, including the insertion of a savings clause. The Court rejected the council's submission that the draft was 'certain and imminent' such that it should carry decisive weight against approval (see [40]-[41]). That limited the weight the Court attached to the draft LEP as a bar to the proposed development.
Second, on the merits: the Court undertook a site-specific, factual assessment of setback, scale, height and traffic/parking. The applicant's case demonstrated that the proposed envelope was comparable to what could be achieved by a single house straddling the two lots under the current controls, that the building related acceptably in elevation to adjacent houses because of site levels and garage positioning, and that the height (about 7.2 m) was within the council's limit when measured as the council required (see [31]-[39]). The Court also accepted expert evidence that shadowing and privacy impacts were within acceptable bounds (separation distances, privacy screens, natHERS rating) and that the proposal would not worsen parking/traffic on the wider Woolcott Street; indeed, by providing on-site spaces the proposal might reduce unsafe parking near a pedestrian refuge (see [26]-[30], [9]-[11], [19]). These factual findings supported the conclusion that the development was acceptable despite the council's concerns.
This judgment illustrates, in practical planning adjudication terms, how a Land and Environment Court treats an exhibited but unfinalised planning instrument. Before this decision, parties often advanced weight arguments for draft instruments as a relevant consideration. Here the Court underscores that an exhibited draft LEP, even in an advanced stage, is not necessarily 'certain and imminent' and cannot be given decisive weight where it remains subject to departmental and ministerial modification including the possibility of a savings clause (see [40]-[41]). That reasoning reaffirms the Court's established approach that a draft instrument is a material consideration but its weight depends on factual circumstances and legal finality.
Practically, after this decision, developers and councils can expect that courts will examine the procedural status of draft instruments and not treat exhibition as conclusively determinative. The decision also reiterates the primacy of site-specific merits: compliance with quantitative controls, accurate expert evidence on overshadowing/privacy, and a detailed streetscape analysis can outweigh policy aims in a draft LEP where that draft is not yet firmly established.
Paragraph 41: "The council presses at this stage that the draft Local Environmental Plan is certain and imminent and the Court should apply that weight. That submission is not accepted as changes could be made by the department's report to the Minister, the Parliamentary Counsel, or by the Minister, including the insertion of a savings clause. If that was inserted the Court would come to the same conclusion that the proposal is reasonable."
Plain English: The Court will not treat the draft LEP as fixed law that stops the development because it can still be changed before it becomes law; if a savings clause were later added the Court thinks it would have reached the same result anyway.
Paragraphs 31-33: Discussion of height and levels.
Plain English: The development sits within the council's height measurement method; because of the slope and garage design, the building appears two-storey and matches neighbouring houses in elevation, so its visual height and bulk are acceptable.
Paragraphs 26-30: Parking/traffic argument.
Plain English: Unlike the narrow inner streets targeted by the draft LEP, Woolcott Street is wide, has better on-street capacity, and the proposed on-site parking (four spaces) will remove resident parking demand from the street and improve safety near a pedestrian crossing.
Paragraph 9-11 & 19: Privacy and overshadowing.
Plain English: Accurate shadow drawings and measured distances show no unacceptable overshadowing; bedroom windows/balconies are well separated (about 18 m), and privacy screens and existing fences mitigate overlooking.
Paragraph 42: Disposition.
Plain English: The Court allowed the appeals and granted consent for the semi-detached dwellings in accordance with the revised drawings and conditions.
This decision is most directly triggered when:
A council relies on a recently exhibited but not yet gazetted draft LEP to refuse development; the applicant contests the weight to be given to that draft and relies on site-specific merits.
A proposal arguably departs from local code setback controls but can be shown by elevation, levels, and envelope comparison to relate acceptably to neighbouring buildings.
Shadowing/privacy disputes hinge on technical evidence (shadow diagrams, separation distances) where expert certification can persuade the Court.
Parking and traffic concerns are precinct-wide (narrow streets) but the particular site sits on a wider boundary street with different characteristics; the development provides on-site parking that demonstrably addresses resident demand and can improve a particular safety hazard (e.g. pedestrian refuge).
The judgment shows the Court will carefully dissect the facts: the physical street characteristics, the building envelope as seen in elevation, and the precise procedural status of draft planning instruments.
The present text contains no information about later judicial treatment. The decision itself sets a local, fact-sensitive precedent on weighing draft instruments and on close site-specific assessment of bulk, setbacks and traffic. For an authoritative account of subsequent citations and judicial reception, one must search case law databases and citators (e.g. AustLII, LawCite, or commercial citators) to see whether Boutouridis v Canterbury City Council [2004] NSWLEC 220 has been applied, distinguished, or cited for particular propositions about draft LEPs or streetscape assessment.
Savings clauses and transitional provisions: the Court noted the possibility that a savings clause could be inserted before gazettal and that if it were inserted the Court 'would come to the same conclusion' (see [41]). The judgment does not explore how a particular form of savings clause would operate or how much protective effect it would have; that remains a question for cases where a draft becomes final with particular transitional wording.
Precedential effect in close cases: while the Court rejected the council's submission that allowing this application would open the floodgates, much depends on factual differentiators (street width, on-street supply, existing house configurations). Future disputes will test the limits: how similar do two sites need to be for this reasoning to apply?
Degree of deference to departmental reports: the Court treated the Department's possible future changes as a reason not to finalise weight on the draft. A different factual posture, for example, where a draft is effectively final and no realistic changes are possible, may produce a different approach; the judgment does not set a bright-line test for when a draft LEP becomes sufficiently settled to attract decisive weight.
Interaction with local policy-making: councils may be frustrated that an advanced draft does not stop otherwise compliant development. The judgment illustrates the balancing act between local policy objectives (preserving character and preventing parking congestion) and statutory rights/applicants' reasonable expectations. How planning authorities should schedule and frame drafts to achieve policy aims without producing unfairness is a policy and practice question left to administrators and future litigation.
Disclaimer: This is a structured analysis of the court judgment Boutouridis v Canterbury City Council [2004] NSWLEC 220 based only on the text you supplied. It is legal information, not legal advice. I can make mistakes. Before you rely on this for any decision, get a qualified Australian lawyer to check it.
CITATION : Boutouridis v Canterbury City Council [2004] NSWLEC 220 APPLICANT Bill Boutouridis PARTIES : RESPONDENT Canterbury City Counncil FILE NUMBER(S) : 11532 and 11533 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Demolish an existing cottage - build two semi-detached dwellings one on each small existing lot - draft LEP provisions - front setback - common side boundary setback - character of locality - density - bulk - scale - traffic and parking. LEGISLATION CITED: Environmental Planning and Assessment Act Local Government Plan CASES CITED: DATES OF HEARING: 26 and 30 March 2004 EX TEMPORE 04/02/2004 JUDGMENT DATE :
APPLICANT Ms M L Taylor, solicitor SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, , solicitor SOLICITORS Marsdens
IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
11532 and 11533 of 2003 Hoffman C 2 April 2004 Bill Boutouridis Applicant
v Canterbury City Council Respondent Judgment
3 . For the applicant present were: Mr G Goodyer, town planner, Mr G Leigh, architect, Ms K Allen, law clerk, and Mr B Boutouridis, applicant. 4 . For the respondent present were: + Mr D Brindle, town planner, + Mr G Gouvatsos, manager development assessment Canterbury City Council, + Mr M Brown, development and assessment officer planning Canterbury City Council
5 . The objectors also present were: + Ms P Verdun of 11 Stone Street behind the subject site, + Ms C Fraser of 13 Stone Street to the south-east behind the site + Ms P Galanis, address not given, + Mr A and Mrs C Georgakopoulos of 9 Stone Street, behind the site, + Mr P Galanis, address not given,
6 . Also attending on the site view was: + Mr and Mrs Leung of 46 Willcott Street on the northern side of the site. 7 . The new owner of 50 Willcott Street, on the southern side of the site, Mr Stellios was not present, however a letter of objection was tendered, his main concern was overshadowing of his rear yard. 8 . The issues were similar in each appeal with some minor differences. The issues were: 1. The proposed development is prohibited under the draft Canterbury Local Environmental Plan 204 which inserts cl 62N into the Canterbury Planning Scheme Ordinance , in that land, subject of the proceedings does not comprise a "developable parcel". 2. The proposed development is unacceptable in that it is inconsistent with Part (a) of clause 4.1 of the Canterbury Single Unit Dwelling House Code ("the Code") particularly in terms of the provision of a front building line of 4.1 m for the proposed dwelling where a front building line of 7.5 m is required. 3. The proposed development is unacceptable in that it is inconsistent with Note 2 of clause 4.2 of the Canterbury Single Unit Dwelling House Code ("the Code") particularly in terms of the provision of a zero setback from the centre boundary of the proposed dwelling and the dwelling attached to the proposed dwelling, where a setback of 1 m is required. 4. The proposed development is incompatible with the existing character of the locality insofar as it constitutes an overdevelopment of the land in terms of density, bulk and scale. 5. The proposed development is unacceptable in terms of the potential for overshadowing of adjoining properties. 6. Whether the proposal will result in an unacceptable reduction in privacy for the dwellings located to the rear boundary of the proposed developed, within Stone Street. 7. The proposed development is not in the public interest. 9 . During the hearing Mr Brindle conceded the shadow drawing revealed that there was no unacceptable impact on No. 5 to the south of the site, nor on any other property, and issue 5 was not sufficient for refusal.
10 . Ms Verdun did not accept the shadow diagrams were accurate largely it seemed due to earlier drawings being proven to be inaccurate. The applicant produced an expert certification of the accuracy of the new shadow diagrams and the Court accepted it.
11 . Also during the hearing Mr Brindle said that the impacts on privacy were not sufficient for refusal, and Issue 6 was of little weight for the following reasons: + The separation distance for the first floor bedroom windows of the proposal to the rear balconies of the Georgakopoulos and Verdun houses was 18 m. The normally accepted minimum separation for privacy was 9 m. + Also the houses fronting Stone Street were uphill so, if anything, it was the applicant that suffered loss of privacy as the objectors look down to it. + In addition the back fences on the Stone Street houses prevented vision to the ground floor family rooms and rear yards of the proposal, so the essential living and outdoor activity areas of the proposal, would retain their privacy. + The bedroom balconies of the proposal facing the rear had privacy screens to prevent immediate overlooking of the backyards of No. 46 and No. 50. + Mr and Mrs Leung were under the impression the proposal came close to the rear boundary but they were shown the rear setback was 12 m to the family room and 9 m to the first floor bedroom balconies. Mr and Mrs Leung's own house had only a 3.6 m rear setback so it was not possible to see into their backyard from the proposed house except for the extreme rear south-east corner. + Mrs Fraser's house had an existing tree that almost completely screened the proposal from her. The only view she would have was oblique to the side windows of No. 48A at a distance greater than 18 m.
12 . The evidence showed that the critical issues in this appeal were draft Local Environmental Plan No. 204 having been exhibited and referred to the Department of Planning, Infrastructure and Natural Resources for report to the Minister for gazettal, and, the streetscape appearance of the proposal being too large amongst the existing houses and too close to the street.
13 . During the hearing the design was amended in response to comments from the respondent's experts. However, the experts, although agreeing that these did create improvements, the respondent's experts maintained it did not overcome the basic Issues Nos. 1, 2, 3 and 4 relating to bulk and scale.
15 . The respondent did not object to these changes.
16 . The objectors in Stone Street were also concerned about noise generation from entertainment in the backyards of the proposal. The applicant drew attention to the objectors' own backyards which had paving and gardens and were capable of use for entertainment. The objectors said they were quiet persons who did not cause such nuisances. One reason for their concern however was "house-sitters" who had looked after Ms Verdun's home recently and kept the neighbours awake.
17 . The Court concluded the soft landscaping in the backyards of the proposal and their location well below the level of the houses in Stone Street was not as conducive to noise nuisance from entertainment as the two objectors' courtyards, and, permanent residents of the proposal would eventually adopt the local custom of quiet enjoyment of their homes.
18 . Although not specifically raised in the issues, the respondent said a consequence of being semi-detached was the southern house got inadequate solar access. Mr Goodyer thought the modified design would get acceptable internal direct sunlight through windows in mid-winter although he had not seen redrawn shadow diagrams. The rear yard and front balconies of the southern semi-detached house would get good direct sun in mid-winter.
19 . Looking at the shadow diagrams and the glass privacy screens reduced to 1.8 m high, the Court has concluded there would be some afternoon direct sun into the living rooms of the southern semi-detached house and it also had skylights to some rooms. The applicant produced a natHERS certificate showing the southern unit reached three and a half stars which is the acceptable standard under the council's controls.
20 . In regard to parking and traffic this arose from the objectors concerns and and Issue 1. The origin of the draft Local Environmental Plan had apparently commenced with these same development applications which were lodged in April 2002 for the subject site. The council had dealt with six reports on the proposal over the intervening years until the appeal was lodged in 2004. On each occasion Council officers had recommended approval whilst still supporting the draft Local Environmental Plan.
21 . The essence of the draft Local Environmental Plan was that the site was in a precinct of small allotments. Each lot in the precinct was just 6.095 m wide by 31 m deep and was subdivided in the year 1850 ostensibly to provide for workers housing for local quarries.
22 . Within the subdivision the streets were very narrow, and, as a result people used their front yards to park cars. Any on street parking, especially if both sides of the street were used, prevented through traffic. Most of the existing houses in this small lot subdivision straddled two lots.
23 . The advent of the subject development applications made the council and local residents realise if each lot had a new dwelling on it, the number of dwellings and thus the number of cars would almost double creating traffic and parking chaos greater than already existing. Many of the existing houses are old and ready for major refurbishment or rebuilding.
24 . As a result the draft Local Environmental Plan sought to allow only one dwelling per two lots, except where a single house on a single lot already existed, and thus preserve the existing density of houses and cars, and thus prevent a worsening of the existing situation.
25 . The apparent reasons that council officers supported the subject development applications was that the envelope of the proposed two semi-detached houses was about the same envelope that would be allowed for a new single house straddling Lots 7 and 8 under the council's controls; and more importantly, Woolcott Street was a wide street on the boundary of the AD 1850 small lot subdivision, unlike the narrow streets within the precinct such as Stone Street. As a result the same parking and traffic conditions did not apply as existing, for example, on Stone Street.
26 . The applicant's experts pressed this point, and also noted that at present only two on street parking spaces were available outside the site. The existing house had no onsite parking so these two spaces were in theory used by it.
27 . By having space for four cars onsite the proposal provided for all resident demand for parking on-site, and did not exacerbate parking demand on Woolcott Street.
28 . Also Woolcott Street, being wide and having larger lots and single houses on its western side, had a satisfactory supply of on-street parking spaces and still allowed two full sized moving traffic lanes.
29 . A further point pressed by the applicant's experts was that opposite the site was a pedestrian refuge in the centre of the road. This narrowed the carriageways a little at the site, and when cars were parked outside the site, it restricted the vision of both pedestrians using the crossing and drivers approaching it. The proposal, by having driveways, would prevent parking there and safety vision distances would be improved. The narrowed carriageways would be widened to normal size past the refuge.
30 . The evidence on these matters was quite compelling.
31 . On the bulk and height issues, which were associated with issue 4, the character of the locality, the applicant's experts said that the council height limit was 7.2 m and this was measured to the ceiling of the topmost floor, in fact the proposal was about 7.2 m to the ridge of the hipped roof, so on the street front the development application was considerably less than the maximum.
32 . Due to the slope of the land the garages were excavated below the ground level at the rear and the semis were two-storey only at the rear. At the street front they were two-storeys above garages it was true, but it was put that such could be expected in the future under the draft Local Environmental Plan, even though the existing houses were one-storey above garages or raised foundations as they faced Woolcott Street.
33 . The respondent thought this was not correct because the side boundary setback requirement would prevent semi-detached dwellings and this could visually reduce the scale of houses to be more compatible with the existing.
34 . Under the terms of the draft Local Environmental Plan this did not appear to be correct. A single house straddling two lots would be replaced by a single house of about the same proportions as the proposal. And in theory at least, under the draft Local Environmental Plan where there were two adjoining lots with existing small houses on each, the owners if they agreed, could apply for something like the proposal because a party wall allowed the benefit of greater width of floor space and on-site parking.
35 . The respondent was concerned that any approval for this development would form a precedent for others. The applicant showed 15 examples of recent single and attached dwellings near the proposal, and, not unlike the proposal to look at, except only five were two-storey above garages. Most were two-storey with either garages in the bottom storey or at a slightly lower level than the bottom storey to give them driveway access. Nevertheless they all showed quite a different character to the existing older houses on Woolcott Street. It was not a conservation area and the existing houses were not intended by council to be preserved. The character of Woolcott Street would change towards houses that fitted the height and bulk envelope permitted by the council's controls.
36 . The applicant put and the Court accepts that draft Local Environmental Plan 204 has no savings clause for applications received before the gazettal date (when it is known). A consent for this application cannot create a precedent for several reasons:
38 . When seen in elevation from the street the ground floor of the proposal, that is, the roof deck of the garage, is at the same level as the ground floor as Nos. 46 and 50 Woolcott Street. So, the proposal relates to them quite well in that the garages of the semis appear to be substructure, that is, substructure similar to the raised front foundations of Nos. 46 and 50.
39 . The main bulk of the proposal is then pushed back another 3.5 m behind the front walls of Nos. 46 and 50. This makes the proposal recessive compared to them although of course it will look considerably larger. But, because the ground floor levels are at the same level as its neighbours, and the first floor levels are at about the eaves height of its neighbours as seen in Exhibit J, drawing 71B, the proposal will look like an "in scale" two-storey building. It might be noted No. 50 stands on two lots and has been recently renovated so it is likely to remain the same in the foreseeable future and occupies about the same width of building as the proposal. Number 46 is on a single small lot.
40 . The draft Local Environmental Plan has never been seen before by the Department of Planning, Infrastructure and Natural Resources although it is in theory in its final phase. It has been referred to the department for report to the minister to obtain his or her approval of gazettal. A letter from the department in evidence stated that the council acted within its delegations in issuing the s 65 certificate for exhibition of the draft Local Environmental Plan, but no other comment was made.
41 . The council presses at this stage that the draft Local Environmental Plan is certain and imminent and the Court should apply that weight. That submission is not accepted as changes could be made by the department's report to the Minister, the Parliamentary Counsel, or by the Minister, including the insertion of a savings clause. If that was inserted the Court would come to the same conclusion that the proposal is reasonable. Therefore there being no other matter sufficient for refusal the application should be approved.
42 . The orders of the Court are: 1. The appeals are upheld.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Boutouridis
Canterbury City Council
The Court upheld the appeals and granted consent for demolition of the existing house and erection of a semi-detached dwelling with a common wall between Lots 7 and 8 (Nos. 48 & 48A Woolcott Street, Earlwood) as shown on the drawings in Exhibit J and related documents, subject to conditions in Annexure A; exhibits returned except specified ones (see [42]).