Cuzeno Pty Limited v Hurstville Council [2005] NSWLEC 677

Land and Environment Court of New South Wales

CITATION : Cuzeno Pty Limited v Hurstville Council [2005] NSWLEC 677

Cuzeno Pty Limited (Appl) PARTIES : Hurstville City Council (Resp)

FILE NUMBER(S) : 11539 of 2004

CORAM: McClellan CJ

Appeal :- Section 56A appeal KEY ISSUES: Whether there was an error in the approach taken to the application of the DCP Height controls

DATES OF HEARING: 15 August 2005 EX TEMPORE JUDGMENT DATE : 08/15/2005

A Pickles (Appl) Abbott Tout (Sol - Appl)

LEGAL REPRESENTATIVES:

P Rigg (Resp) Deacons (Sol - Resp)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

MONDAY 15 AUGUST 2005

11539/04 CUZENO PTY LIMITED v HURSTVILLE COUNCIL

JUDGMENT 1 HIS HONOUR: This is an appeal from a decision of the Senior Commissioner in relation to a development application to demolish existing buildings and to erect a residential/commercial development on land known as 166-178 Stoney Creek Road Beverley Hills. The Senior Commissioner refused the application.

2 The site is a significant one, being at the corner of two major roadways and extending to a third roadway, Lee Avenue, which gives access to a residential area. The site has an area of 3124.5 m² and has a slope both along Stoney Creek Road and also away from the site on Lee Avenue.

3 The site is controlled by, amongst other matters, Hurstville Development Control Plan 12 - Beverley Hills. This is a detailed document prepared for the purpose of providing both general and particular controls in the area. 4 The site itself has been given particular consideration in relation to the set-back from Stoney Creek Road, defined as 24 metres, and the height control which is defined as either four-storeys or two-storeys. The level of particularity of the development control plan is reflected in the fact that the individual site is the subject of detailed mapping in which the controls are defined. 5 The proposed development exceeds the expectation in the DCP, both in relation to height and also in relation to the set-back from Stoney Creek Road. In relation to height, a part of the proposal where it will be prominent is four-storeys when the DCP provides for only two-storeys. A significant component of the proposal being the long section facing Stoney Creek Road is proposed to be three-storeys where the development control plan requires a two-storey building. In other words, in part, the proposal breaches the height control by 100 per cent, but the majority of the proposal will breach the height control by 50 per cent. 6 The Commissioner found that in particular the breach of the proposed three-storey section along Stoney Creek Road would be "highly visible" and "an obvious breach of the height control". 7 As I have indicated, the building as proposed would also breach the set-back control which was referred to in the proceedings as the "maximum building depth control." That control was imposed in order to provide for equity of development potential between the sites controlled particularly by the DCP and adjoining land. 8 In the context of the present proposal, it would appear that it was intended that there would be a maximum set-back from Stoney Creek Road to allow for the development of land to the rear, free from excessive intrusion of development fronting Stoney Creek Road. 9 The combination of a breach of the height control and a breach of the set-back control has a potential for significant impact upon any development to the rear. 10 My understanding is that in particular the four-storey section of the proposed development breached the set-back control where the proposal would have taken the development to the rear boundary. This was a significant breach of the relevant control. 11 I have reviewed the transcript of the proceedings and also the written evidence given by the court appointed expert Mr Shiels. It is plain from a reading of that material that the significance of the development control plan, and whether or not it should be complied with, was the central issue in the proceedings. Accordingly, the parties evidentiary endeavours and submissions were focused upon whether, notwithstanding the controls within the DCP, there were reasons in the circumstances of this case which would justify a departure. 12 In this respect, the parties made submissions following upon the discussion by Mr Shiels of the decision of this Court in Stockland Developments Pty Limited v Manly Council, (2004), 136 LGERA 254. In that decision I considered earlier decisions of this Court and of the Court of Appeal and formulated, in summary form, the approach which I believed to be appropriate to consideration of a development application which, in its terms, breaches an adopted DCP. It is unnecessary for me to repeat that discussion in these reasons, however, the transcript reveals that a discussion of those principles was central to the argument in the present matter. 13 The DCP is in a form which provides a statement of objectives, design principles, and design solutions and controls. They are relevantly set out on page 5 of the document and are in the following terms: "Each section of this DCP contains objectives, design principles, and controls. § Objectives clearly state what Council seeks to achieve once the design principles are met. § Design Principles are the outcomes that must be met. § Design solutions and Controls are prescriptive means of achieving the desired objectives." 14 The DCP then continues with these statements by way of guidance to prospective applicants: "In order to meet the objectives in some sections of the DCP, you should comply with the building envelope control as well as meet council's design principles. Council will, however, consider a variation to the envelope where an applicant can demonstrate that such a variation better satisfies the relevant design principle. In this way, the DCP provides flexibility to the applicant and an opportunity for an innovative approach to development." 15 After giving guidance as to how an application should be framed, the following is said: "In considering the proposal, Council will assess if the objectives of the DCP have been met and whether or not satisfying the design principles provides for a more appropriate outcome." 16 It is apparent from the form of the DCP that the author has recognised a need at the development control plan level of flexibility in the administration of the development process. Rigidity may be unproductive. Flexibility has been recognised in order to ensure that although numerical parameters may be provided if an applicant can demonstrate that a proposal which breaches the numerical requirements "better satisfies the relevant design principles" or provides for "a more appropriate outcome" it may be approved. 17 As I understand the plan the Council expects that its provisions will be met unless an applicant can demonstrate that although the relevant provisions are breached, a more satisfactory planning outcome can be achieved. If the planning outcome is not an improvement upon that which would be achieved by compliance with the DCP, the plan must be complied with. 18 The authors of the DCP seem to me to have captured the essence of what I said in Stockland. In particular, the principles which I enunciate on page 272 at paragraph 87 of the judgment. 19 The Senior Commissioner's decision is criticised in this appeal. It is submitted that it reveals an error of law in the approach which he has taken to the application of the DCP. It is submitted that although the DCP recognised a capacity to depart from the numerical control which may have been provided, the Senior Commissioner failed to recognise this opportunity. Instead, it is submitted that the Senior Commissioner concentrated upon whether or not the DCP had been consistently applied and whether to allow the present application for consent would have undermined the capacity to seek that future developers comply with its provisions. Framed in succinct terms, the submission which was made on behalf of the applicant was that the Senior Commissioner failed to ask himself the question "whether strict application of the DCP was necessary having regard to the provisions of clause 1.8." Clause 1.8 are the provisions to which I have earlier referred. 20 In my opinion, the Senior Commissioner has not made an error of law in his consideration of this proposal. 21 I should briefly refer to the essential matters in the reasons of the Senior Commissioner. He commences his analysis of the relevant considerations by identifying the nature of the proposal and then refers to the relevant planning controls and the issues. Under that heading the Senior Commissioner makes plain that as the proceedings evolved before him, "It became clear that there was only one major issue, ie non-compliance with DCP 12." 22 The Senior Commissioner refers to the objective evidence which reflected two main concerns. One concern was traffic and parking problems. The other was a concern about compliance with the height limit set by DCP 12. It would seem that again, the height problem reflected in the breach of the DCP became the dominant issue in the proceedings. 23 The Senior Commissioner turned his attention to the non-compliances with the DCP, being the number of storeys and the maximum building depth. In relation to the building height, the Commissioner identifies the relevant controls and the nature and extent of the breaches. He also identified that Mr Shiels, who had been appointed by the Court to give expert evidence, agreed with the applicant that a three-storey building facing Stoney Creek Road was acceptable. However, he was also of the view that it was a significant non compliance with the DCP. It was Mr Shiels' view that if this breach was allowed, "the council would have difficulty in imposing DCP 12 on future developments." 24 The Senior Commissioner then brought to mind the reasons for judgment in Stockland and identified three principles as relevant to his consideration: