Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 302

Land and Environment Court of New South Wales

CITATION : Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 302 APPLICANT PARTIES : Austcorp No 459 Pty Limited RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10463 of 2003 CORAM: Watts C at 1 - Bly C at 1 KEY ISSUES: Development Application :- Privacy - Over-development of site - User safety - Accessibility and Termite protection LEGISLATION CITED: Baulkham Hills Local Environmental Plan 1991, (BHLEP) - Environmental Planning and Assessment Act 1979; (EPA Act) ss 79C, 97 - Disability Discrimination Act 1992 (Cth) CASES CITED: DATES OF HEARING: 18/08/2003, 20/08/2003, 21/08/2003 and 29/08/2003 and 08/12/2003, 09/12/2003 and 10/12/2003 DATE OF JUDGMENT: 06/08/2004

APPLICANT Mr M G Craig, QC, barrister instructed by Mr R Wilcher, solicitor SOLICITORS Baker & McKenzie LEGAL REPRESENTATIVES: RESPONDENT Mr P J McEwen, SC, barrister instructed by Mr D Baird, solicitor SOLICITORS Maddocks

JUDGMENT:

17 February 2004 In the Land and Environment Court of New South Wales Appeal No: 10463 of 2003

Austcorp No 459 Pty Limited v Baulkham Hills Shire Council

Judgement Introduction 1 Appeal No 10463 of 2003 under s 97 of the Environmental Planning and Assessment Act 1979, is against the deemed refusal by Baulkham Hills Shire Council ("the council") of Development Application No 843/2003/HB to carry out certain works and for the use of the existing building at Lot 1 DP 1035154, being Nos 18-22 Campbell Street, Northmead as an apartment building. 2 The other aspect of this matter involves an application for a building certificate (proceedings No (1)0351 of 2002) which has not been pursued at this time, pending the completion of building works which cannot proceed until development consent has been granted. The Class 4 matter (proceedings No 40237 of 2001) is also in abeyance pending the outcome of this appeal. 3 We inspected the building and its environs in company with the parties on two occasions during the proceedings. 4 The Court has decided that the applicant be given the opportunity to amend the basement ramp so as to improve safety for pedestrians and to improve disabled access to the buildings. The land 5 The land is situated on the southern side of Campbell Street, about 300m east of Windsor Road at Northmead. The land previously comprised Lots 16, 17 and 18 in DP 6436, which were consolidated and are now known as Lot 1 in DP 1035154. The land is irregular in shape with a frontage of 45.73m to Campbell Street, 93.695m along the western boundary and 64.275m along the eastern boundary and an area of 3,698m2. The land, falls from the Campbell street frontage to the rear with a cross fall of about 8m. 6 Erected on the land is a recently constructed part two-storey and part three-storey residential flat building. There is an extensive basement car park with a two-way ramp access off Campbell Street. The surrounding area 7 The land is in an established residential area, which is undergoing change through the redevelopment of the existing single dwellings to medium density residential apartments and town houses. 8 To the west on the Campbell Street frontage at Nos 14-16 Campbell Street is a town house development, and an apartment development on the Windsor Road frontage at Nos 27-35 Windsor Road. 9 To the east at Nos 24-26 Campbell Street is an apartment building currently under construction. 10 To the rear of the land is a smash repairer. 11 Across Campbell Street, there are single-storey dwelling houses and at the eastern end of Campbell Street is Northmead High School, about 80m east of the land with a school population of about 740 mainly teenage students. 12 The dwellings nearby have hipped roofs with eaves. Background 13 On 24-27 May 1999, in proceedings No 10007 of 1999, Senior Commissioner Jensen heard an appeal by Designlink International Pty Limited against a refusal of development application for an apartment building of twenty-six (26) units comprising 16 x 3 bed and 10 x 2 bed units by Baulkham Hills Shire Council at Nos 18-22 Campbell Street, Northmead. These plans showed the vehicular ramp to the basement with a section at the street alignment with a slope of 1:20 or 5% slope. 14 On 27 May 1999, Senior Commissioner Jensen upheld the appeal subject to (in part): 2. A deferred consent is given to a development ... as described in Exhibits 1, N and C. The deferral is to allow: (a) an easement for drainage purposes to be obtained; and (b) Minor corrections to be made to the drawings at the basement car parking level so that appropriate ramp gradients, headroom and staircase access to the ground floor level are shown. 15 On 8 September 1999, the Senior Commissioner's decision was appealed against under s 56A of the Court Act. 16 On 15 September 1999, his Honour Talbot J, found that the Senior Commissioner erred in law in granting deferred commencement and directed the matter be referred back to the Commissioner for determination in accordance with the findings in the s 56A appeal. 17 On 2 November 1999, Senior Commissioner Jensen upheld the appeal and granted development consent subject to conditions. 18 Condition Al of the development consent states: 1. The development is to be carried out substantially in accordance with the plans prepared by Designlink International and numbered 172-DA02 Rev C, 172-DA03 Rev C, 172-DA04 Rev C, 172-DA06 Rev F, 172-DA08 Rev D, and details prepared by McDivitt Gelder numbered SK01, SK02, SK03, SK04, SK05, and SK06 as further amplified by Exhibits E and F.