Amflo Pty Limited v Ashfield Municipal Council [2005] NSWLEC 228

Land and Environment Court of New South Wales

CITATION : Amflo Pty Limited v Ashfield Municipal Council [2005] NSWLEC 228

APPLICANT: Amflo Pty Limited PARTIES : RESPONDENT: Ashfield Municipal Council

FILE NUMBER(S) : 11311 of 2004

CORAM: Pain J

KEY ISSUES: Appeal :- application for mixed commercial/residential development - height bulk and scale

Ashfield Development Control Plan No 1 Ashfield Local Environmental Plan 1985 LEGISLATION CITED: Ashfield Local Environmental Plan No 61 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development

CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 09/05/2005 10/05/2005

DATE OF JUDGMENT: 05/11/2005

APPLICANT: Mr M Sahade (barrister) SOLICITORS: none LEGAL REPRESENTATIVES: RESPONDENT: Mr S Griffiths (solicitor) SOLICITORS: Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

11 May 2005

11311 of 2004 Amflo Pty Limited v Ashfield Muncipal Council

JUDGMENT 1 Her Honour: This is an appeal against the refusal by Ashfield Municipal Council ("the Council") of DA 2003/367 for the demolition of an existing building and the construction of a mixed commercial/residential development at 188 – 196 Parramatta Road, Ashfield ("the site"). 2 An inspection of the site was undertaken on the morning of the first day of the hearing with representatives of both parties. A number of local residents attended and provided their evidence at this time. I would like to thank Commissioner Brown for his assistance in this matter. The site and surrounding development 3 The site is located on the south-western side of Parramatta Road between Bland Street and Chandos Street, Ashfield. The site has an area of 1,907 square metres and a frontage to Parramatta Road of 52.5 metres. A two-storey brick building is currently located on the site and is used as offices for an architecture and property development practice. The site falls towards the rear boundary by approximately 2.0 metres. There is no existing vegetation on the site and the land is partly paved and partly gravel/dirt. 4 The site is adjoined to the south-east by an existing six level residential flat building which contains a seventh level in its roof form. This site is known as Ashfield Gardens. A fire damaged warehouse is located immediately to the north-west of the site facing Parramatta Road and with access to Bland Street. Immediately to the south of the site, on the corner of Parramatta Road and Chandos Street is a vacant site. 5 The Yasmar Detention Centre is located to the north-east of the site on the opposite side of Parramatta Road within the Haberfield Heritage Conservation Area. The proposal 6 The proposal seeks to demolish the existing building on the site and construct a mixed residential/commercial development on the property comprising basement carparking, a ground floor retail/commercial area and 43 residential apartments. The apartments will comprise six one-bedroom dwellings, 34 two-bedroom dwellings and three three-bedroom dwellings. The basement carpark will provide space for 82 vehicles with an entry/exit driveway off Parramatta Road. The proposal will have five full residential floors above the ground floor commercial uses and a partial sixth residential floor at the northern end of the proposed building. Relevant planning controls 7 The site is zoned Special Business 3(b) under the provisions of Ashfield Local Environmental Plan 1985 ("Ashfield LEP"). Under Ashfield Local Environmental Plan No 61 ("LEP 61"), the Ashfield LEP was amended to permit the construction of "multiple dwellings" on the site and several other large sites within the municipality with the Council's consent. The current proposal is permissible with Council's consent under LEP 61. 8 The site is not located within a Heritage Conservation Area nor is the existing building a heritage item. However, the site is directly opposite the Haberfield Heritage Conservation Area and Yasmar Detention Centre which is listed as a State Heritage Item under the State Heritage Inventory. 9 Ashfield Development Control Plan No. 1 – Dwellings in Residential Zones ("DCP 1") was tendered although the applicability of parts of this document was in dispute between the parties. 10 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development ("SEPP 65") applies to the proposal by way of cl 4(1)(a) as the proposal is defined as "the erection of a new residential flat building". Part 2 provides design quality principles for residential flat development. These design quality principles seek to provide a guide to achieving good design and a means of evaluating the merits of proposed development.