Ghazi Elali v Campbelltown City Council [2005] NSWLEC 15

Land and Environment Court of New South Wales

CITATION : Ghazi Elali v Campbelltown City Council [2005] NSWLEC 15

APPLICANT: Ghazi Elali PARTIES : RESPONDENT: Campbelltown City Council

FILE NUMBER(S) : 10818 of 2004

CORAM: Watts C at 1

Development Application :- Heritage impact KEY ISSUES: including landscaping bulk and materials - Overshadowing - Building bulk when viewed from Campbelltown Road.

LEGISLATION CITED: Campbelltown Local Environmental Plan 2002, (CLEP) - Development Control Plan No 52 - Off Street Car Parking, (DCP52) - Development Control Plan No 83 - Heritage Policy, (DCP83) - Industrial Policy No 5.2.13 - Environmental Planning and Assessment Regulation 2000

CASES CITED: Elali v Campbelltown City Council [2004] NSWLEC 554 Bignold J

DATES OF HEARING: 19/01/2004 EX TEMPORE JUDGMENT DATE : 01/19/2005

APPLICANT: Mr J Johnson, barrister instructed by Mr B S Woolf SOLICITORS: Woolf and Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr A J Seton, solicitor SOLICITORS: Marsdens Law Group

JUDGMENT:

Appeal No: 10818 of 2004 9

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

19 January 2005

10818 of 2004 - Ghazi Elali v Campbelltown City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Campbelltown City Council (the council) of a development application to erect serviced apartments and a convention centre at Lot 1 DP 620468, being No 183 Airds Road, Leumeah. The council has since formally refused the application. 2 His Honour Bignold J decided in respect of the matter of amended plans, on 30 September 2004 that the Court has power to grant the relief sought by the applicant under cl 55 of the Environmental Planning and Assessment Regulation 2000. [Note: Elali v Campbelltown City Council [2004] NSWLEC 554]. On 14 October 2004 the Court ordered, "…proceedings be advanced on the amended plans". As a result amended plans and an amended statement of issues was filed in the Court on about 16 September 2004 and 16 December 2004 respectively. 3 I visited the land in company with the parties on the morning of the first day of the proceedings. On the site inspection two local representatives gave evidence. The council and the applicant now seek consent orders. 4 I have concluded that the application should succeed on the basis of the amended plans, in the light of support for the application by the Court-appointed experts and after consideration under s 79C of the Environmental Planning and Assessment Act 1979. The land 5 The land is situated on the western side of Airds Road, and backs onto Campbelltown Road. It is a battle-axe block of 4,157m2 with vehicular access from Airds Road via a battle-axe handle. The developable portion of the land has a width of about 38m fronting Campbelltown Road, and a varied depth of around 103.27m on the north and 172.96m on the south. The land falls down to the east from RL 60m AHD at Campbelltown Road to RL 53m AHD at Airds Road and the topography of the area eventually slopes down to Bow Bowing Creek. 6 To the south of the land is a two-storey building of bagged unpainted masonry construction presently, variously used, with the Campbelltown Road section being used as a restaurant. As part of the development of that site two State-significant heritage listed items were incorporated, and these are "Hollylea House" and "Plough Inn". To the north of the land is the Macarthur Inn, which is a two-storey brick and metal roofed motel building. This development has vehicular access off Grange Road to the north. The parapet of the Macarthur Inn is 65.85m AHD or about one floor lower than the amended parapet level on the proposal at 72m AHD. Adjoining to the northeast is an industrial building presently used for warehousing. Other nearby development is used predominantly for the industrial purposes and the nearest residential use is to the northwest about 100 metres distant across Campbelltown Road. Relevant planning controls Campbelltown Local Environmental Plan 2002, (CLEP) 7 Under the provisions of the CLEP the land is zoned Industrial 4(b) and the proposal is permissible with consent. Other instruments that apply include: Development Control Plan No 52 – Off Street Car Parking, (DCP52) Development Control Plan No 83 – Heritage Policy, (DCP83) Development Control Plan No 95 – Waste Management Policy, (DCP95) Industrial Policy No 5.2.13, (Industrial Policy) The proposal and its history 8 Development application No F1336/2003 was lodged with the respondent council on 18 December 2003. The amended application, filed in the Court on about 14 September 2004, is to construct fifty-eight (58), (originally seventy-nine), serviced apartments and a conference facility with a basement car park for 138 car parking spaces. 9 The amended proposal is described in plans prepared by Blackwood Neal Architects as being a five-storey building (originally for eight-storeys), setback around 30m from Campbelltown Road in compliance with the Industrial Policy and the CLEP2002. 10 The proposal, as amended, would also comply with DCP52 and DCP95. The applicant considers the 30m-setback to Campbelltown Road would enable views of the State significant heritage buildings to be maintained over the proposed landscaping. 11 The amended application was referred to the Office of State Heritage and the NSW, (OSH) Police – Campbelltown Local Areas Command. The police suggested security conditions be applied to any consent. [Note: Exhibit 3, pp 64–5 original application]. The OSH considered the amended proposal would dominate and be a further intrusion into the curtilage of the heritage items. [Note: Exhibit 3, p 94-6 original application and p 199-200 amended application]. Notification 12 The amended application was notified to nearby owners and occupants and the council received two objections. Concerns were expressed about, [Note Exhibit p 210]: · Bulk, mass and scale; · Building materials and finishes not being sympathetic with adjoining buildings; · Overshadowing and · Precedent for other forms of inappropriate development. The council's decision 13 The application was considered at an Ordinary Council Meeting on 28 September 2004 and was refused consent. The Planning and Environment Committee of the Council considered a s 82A review of the earlier decision and recommended at its meeting of 7 December 2004 that the application be refused. At the Council Meeting of 14 December 2004 the reviewing officer's recommendation for approval was rejected, and the Planning and Environment Committee recommendation for refusal was adopted, [Note: Exhibit 4 Annexure D Minute No 310]. 14 The planning officer of the council recommended deferred commencement consent of the amended application and stated: The amended scheme has been assessed against Council's planning instruments and is considered to be consistent with Council's requirements and future desired character of the locality. 15 When the appeal was filed the council had not yet determined the application and hence it is a deemed refusal. The hearing 16 The appeal was filed on 20 July 2004. 17 Mr B Edgar, of Graham Brook's office was the Court-appointed heritage consultant, and Mr S McMahon, was the Court-appointed town planner. 18 Ms M Canal, town planner prepared the statement of basic facts on which this judgment was based. 19 On the site inspection evidence was given by: · Mrs J Goodfellow, on half of the Campbelltown and Airds Historical Society Inc; and · Mr C Barry, owner of the Macarthur Inn. The issues 20 On 16 December 2004 the council filed an amended statement of issues, [Note: Exhibit 6]: 1. The proposed development is unacceptable in that it is inconsistent with the objectives of the zone 4(b) – Industry B Zone, in particular the objective in clause 13(2)(a) and (b) of CLEP2002. Particulars (a) The proposed development would not contribute to the economic growth in the city of Campbelltown, and is a development that is not considered to be economically feasible. In that regard, the proposal is inconsistent with the objective in clause 13(2)(a). (b) The proposed development does not relate sympathetically to the nearby and adjoining State significant heritage items, and in that regard is inconsistent with the objective in clause 13(2)(b). 2. Whether approval of the proposed development would be unacceptable, in that it will set an undesirable precedent for similar inappropriate development in the area, which will have on unacceptable cumulative impact on future development within the area surrounding the land subject of these proceedings. 3. The proposed development is unacceptable in that it is inconsistent with the design principles and elements in Part 3 of the Campbelltown Development Control Plan No 83-Heritage Policy. Particulars a. The proposed development does not use recessive/neutral elements, and in that regard fails to retain and then hands the significance of the heritage items known as "Hollylea House" ("Hollylea House") and "Plough Inn" ("Plough Inn") that are located adjacent to the subject site. b. The proposal fails to recognise and interpreted the existing architectural and landscaped elements in a modern way, in particular in terms of building shape and form, and style and design. c. The proposed development is of a much larger scale and proportion to the existing heritage items, and in that regard will have a detrimental impact on the views from the heritage items and the streetscape. d. The proposal does not take into account the elements of symmetry in terms of the heritage items, in particular the balance/ placement of windows, doors, rooms, and pitch and gable of roofs. e. The proposed use of building materials, details and colours is not consistent with the existing heritage items. f. The proposed development is no immunity with the existing heritage items and in that regard there was no transition or blending between the proposed and existing (heritage) buildings. 4. The proposed development is unacceptable in that it will have an adverse impact upon the heritage items "Hollylea House" and "Plough Inn". Particulars (a) The proposed development does not complement, and is not sympathetic with, the adjacent heritage items in terms of external finishers, colours, textures and materials to be used as part of the proposal. 5. The proposed development is unacceptable in terms of the adverse impact upon the existing amenity of the locality. Particulars (b) The proposed development is excessive in terms of mass, scale and urban design and is considered to be an overdevelopment of the site. In that regard, it will have an adverse impact upon the amenity of the locality and on the existing streetscape. (c) The proposed development does not achieve a high quality of urban design that is compatible with the surrounding locality, and in that regard will have an adverse impact upon the amenity of the locality and the existing streetscape. 6. The proposed development is not in the public interest, having regard to the significant number of objections received. 21 The salient issues related to: · Heritage impact, including landscaping, bulk and materials · Overshadowing; and · Building bulk when viewed from Campbelltown Road. The evidence and findings Heritage impact, including landscaping, bulk and materials 22 Mrs Goodfellow questioned the style and finish of the proposed building and was concerned that it would not complement the style and finish of the buildings to the south including the heritage items. 23 By reference to the materials textures and finishes board in Exhibit D, Mr Neal explained that he had attempted to blend in with those buildings to the south. 24 Mr Edgar had examined this question and was satisfied that the proposal as amended would complement the heritage buildings being "Hollylea House" and "Plough Inn". The SHO stated in its letter dated 23 November 2004, concerning the amended proposal, that a contemporary design would be appropriate, however, further consideration should be given to reduce the bulk, scale, massing and height, [Note: Exhibit 3 p 200]. There was no objection raised by Mr McMahon in this regard. 25 I am satisfied, having carefully considered the siting of the proposal and its relationship to adjoining buildings and Campbelltown Road, and having regard to the materials textures and finishes board and the proposed landscaping in Exhibit C, that the proposal would be acceptable and I would not refuse the application for this reason. 26 The roof of the basement car parking is proposed to be landscaped within the proposed 30m-setback. Mr Neal gave evidence that the car park roof would be able to support trees maturing to a height of around 6m in the proposed 1.8m depth of soil. Subsequently he explained that this depth of soil would be possible in pockets formed in the car park roof. I am satisfied that with the 30m-setback and the side setbacks landscaped in a manner proposed the building bulk would be visually softened. Mrs Goodfellow considered this to be a reasonable compromise, however, she commented that the palm trees would be out of place. Mr Edgar supported Mrs Goodfellow view in this regard, and Mr Neal agreed to investigate other trees in their place. I would not refuse the application for reason of inappropriate landscaping on the basis that further consideration is given to replacing the proposed palms. Overshadowing 27 Mrs Goodfellow was also concerned for the overshadowing of the "Plough Inn" and on the site inspection, Mr Neal, the architect, by reference to the shadow diagrams, confirmed that at 9.00am in midwinter, only part of the northern sidewall of that building would be in shade. By 10.00am he added that the wall would no longer be in shade. As a consequence, I am satisfied that overshadowing would be minimal and would not be a reason for refusal of the application. 28 In coming to this conclusion on the shadow impact, I have taken into account the views of Mr Edgar that in fact overshadowing of this heritage building would "…be almost negligible". Building bulk when viewed from Campbelltown Road 29 Mr Barry expressed concern for the bulk of the proposal when viewed from Campbelltown Road having regard for the height of his building on adjoining land. The proposal, which would present as four-storeys in height to Campbelltown Road, would be around one storey higher than the highest parapet of his building. The proposal would appear much higher than this, given that the parapet of Mr Barry's building is setback further from Campbelltown Road than the front of the proposal. However, there is no height control applicable to the development of the subject land that would require the building to be lowered. The amended proposal was reduced in height by three storeys following receipt by the applicant of the council's issues in the case, and the council officers supported the amendments to the height. Also Messrs McMahon and Edgar supported the proposal as amended in height to overall five storeys. 30 With the proposed landscaping in place, taking into account the topography, the materials used to complement the nearby heritage buildings and the contemporary form accepted, I am satisfied that this would not be a reason to refuse the application. 31 For the above reasons, the appeal is upheld by consent. Conditions 32 The conditions are those in Exhibit 8 as amended during the hearing. Consent orders 33 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.