Huntington & MacGillivray v Ashfield Municipal Counncil [2006] NSWLEC 233

Land and Environment Court of New South Wales

CITATION : Huntington & MacGillivray v Ashfield Municipal Counncil [2006] NSWLEC 233

APPLICANT Huntington & MacGillivray PARTIES : RESPONDENT Ashfield Municipal Counncil

FILE NUMBER(S) : 11003 of 2004

CORAM: Bly C

KEY ISSUES: Development Application :- Demolition, commercial and residential development, impacts on conservation area and streetscape

Ashfield Local Environmental Plan 1985 LEGISLATION CITED: Draft Ashfield Local Environmental Plan No. 106 Summer Hill Urban Village Centre Development Control Plan

DATES OF HEARING: 21-22/03/2006

EX TEMPORE JUDGMENT DATE : 03/22/2006

APPLICANT Mr M Ball, town planner

LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

22 March 2006

11003 of 2004 Huntington & MacGillivray v Ashfield Municipal Council

JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication. 1 This appeal relates to development application No. 270/2004 which is for the demolition of an existing single storey industrial building and the erection of a three storey mixed residential/commercial development at 150 Smith Street, Summer Hill. More particularly the proposal comprises two retail/commercial tenancies and nine car parking spaces at ground level which together effectively form a podium for the six dwellings at first and second floor levels within two buildings divided by a central courtyard. 2 The site is situated in the Summer Hill urban village. It has an area of about 505 sq m, a width of about 18 m and a depth of about 27 m. 3 The existing dry cleaning premises effectively occupies the entire site which is bounded to the west by a former post office building, to the east by an effectively three storey commercial and retail building, and to the south at No. 4 Moonbie Street immediately behind the site by a part one/part three storey dwelling. 4 The site is zoned General Business 3(a) under Ashfield Local Environmental Plan 1985 ("the LEP") in which zone the proposal comprising a mixed development is permissible with development consent. Being a mixed development in the 3(a) zone, cl 17 and 40 of the LEP together provide for a maximum floor space ratio of 1.5:1, and having a floor space ratio of 1.3:1 the proposal comfortably meets this requirement. 5 The adjoining post office building is, under the LEP, a listed heritage item and cl 37 relevantly requires the assessment and consideration of the likely effect of the proposed development on its heritage significance. Clause 37 also requires the consideration of the likely effect of proposed development on conservation areas. 6 Draft Local Environmental Plan No. 106 ("the draft LEP") will amend the LEP and include the site within the Tavistock Estate Conservation Area. This draft LEP, having been advertised, makes the conservation area a relevant matter for consideration in the determination of this development application. 7 Also applicable to the site is the Summer Hill Urban Village Centre Development Control Plan. The Village DCP contains building design guidelines including a two storey height limit, a 9 m maximum parapet or façade height and a maximum height of 7 m between the natural ground level and the uppermost ceiling of the building. The numerical height controls are supplemented by a diagram in Schedule 3 that explains how the 7 and 9 m standards are applied from the street boundary; those heights being projected horizontally therefrom. 8 In relation to façades, the guidelines require that façades of new buildings should relate to the form and character of buildings in the immediate vicinity and that articulation of such façades is encouraged. In relation to building materials the guidelines discourage modern finishes including glass curtain walling, metal cladding and perforated screens. Also the guidelines provide that care needs to be taken in relation to vehicle entrances to ensure that they do not form a destructive element in the streetscape. 9 Council's Development Control Plan, Access Adaptability and Mobility, is also applicable. 10 The application was advertised and three objections were received raising objections including the following: - Lack of or incorrect details in the architectural plans and lack of or incorrect information in the statement of environmental effects. - Overshadowing and overlooking of properties at the rear of the site, particularly No. 4 Moonbie Street. The consequences of excessive bulk and scale of the proposal for No. 4 Moonbie Street. - Non compliances with council's planning controls. - The building would be architecturally and historically unsympathetic in terms of the heritage significance of Smith Street. - Vehicular access to and from Smith Street would be dangerous. Insufficient car parking will cause over-utilisation of on-street parking and will add to traffic congestion. 11 These objections were explained in detail by the owners of the properties at Nos. 4 and 6 Moonbie Street and the post office building at No. 2 Moonbie Street during the site inspection on the first day of the hearing. 12 Following consideration of a council officer's report recommending refusal the council decided to refuse the application for 23 reasons including matters of orderly and economic development, heritage impacts, residential design, landscaping, privacy, solar access, car parking, façade fenestration, lighting, ventilation and fire safety. 13 Expert town planning evidence was provided by: * Mr J Moody, the Court appointed expert, and * Mr A Johnston, a council planner. 14 Expert heritage evidence was provided by: - Ms J Hill, the Court appointed expert, and * Mr R Moore, a council appointed consultant.