Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437

Land and Environment Court of New South Wales

CITATION : Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437 APPLICANT: PARTIES : Equitibuild Pty Limited RESPONDENT: Leichhardt Municipal Council FILE NUMBER(S) : 10770 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Height bulk scale and streetscape character - Car parking LEGISLATION CITED: Leichhardt Local Environmental Plan 2000, (LLEP) - State Environmental Planning Policy No 1, (SEPP1) - Residential Development Control Plan, (RDCP) CASES CITED: Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) DATES OF HEARING: 18/06/2004 and 4/08/2004 DATE OF JUDGMENT: 08/12/2004

APPLICANT: Mr P Clay, barrister instructed by Mr J Comino, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Comino Prassas RESPONDENT: Mr G A Green, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

Appeal No: 10770 of 2003

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

12 August 2004

10770 of 2003

Equitibuild Pty Limited v Leichhardt Municipal Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Municipal Council (the council) of a development application to demolish most of the existing building, except for the façade and party wall of No 39 Booth Street and to erect a mixed-use commercial/ residential development comprising three (3) commercial tenancies including a restaurant and five (5) dwellings, car park and strata subdivision at Lot 2, DP 655515 and Lot 3, DP 1080, being Nos 39 and 41 Booth Street, Annandale, respectively. 2 I visited the land in company with the parties on the afternoon of 17 June 2004. 3 I have concluded that the proposal described in the Option 2 plans should be approved, as this would ensure that the floor space ratio, (FSR) of the proposal would more closely meet the allowable FSR than any other option and would limit the bulk of the proposal within the conservation area. In respect of the Option 2 plans I uphold the State Environmental Planning Policy No 1 (SEPP1) objection to the maximum FSR standard. The land 4 The land, comprising two allotments, is situated on the northern side of Booth Street, one property removed from the northwestern corner of Booth and Nelson Streets. 5 Nos 39-41 Booth Street has a frontage of 11.960m to Booth Street, 9.03m to Booth Lane an average depth of 33.83m and a site area of 371.90m2. Erected on No 39 Booth Street is a two-storey brick building which is used, on the ground floor, as a restaurant. 6 No 41 Booth Street has a frontage of 6.095m to Booth Street and Booth Lane, a depth of 33.83m and a site area of 206.1m2. Erected on this portion of the land is a single-storey brick and fibro shop. 7 The land does not contain any significant vegetation and falls from Booth Street down to Booth Lane about 4.5m. 8 No 39 Booth Street is burdened and benefited by a cross easement affecting the party wall between Nos 39 and on the comer of Nelson Street, 37 Booth Streets. 9 There is erected on No 37 Booth Street, to the east of the land, a mixed commercial/ residential building comprising two levels of commercial use to the Booth Street frontage and two x two levels of dwellings to the Booth Lane frontage of similar scale and character as the existing building on No 39 Booth Street. A mixed commercial/ residential development has been approved for No 37 Booth Street. 10 No 43 Booth Street to the west of the land is a part three-level and part four-level commercial building with restaurant on the ground floor and commercial offices above. This Victorian terraced building is significantly larger than other development in the locality. 11 No 150 Nelson Street to the north, is a single storey dwelling. Relevant planning controls Leichhardt Local Environmental Plan 2000, (LLEP) 12 The land is zoned 'Business' and is located within a conservation area, and the proposal is permissible with consent under cl 21(3) of the LLEP. The land is not in the immediate vicinity of any items of environmental heritage. 13 The following development standards apply to the land: Clause 19(6) - Diverse Housing minimum of 25% bedsitter or one bedroom and maximum of 30% three or more bedrooms; Clause 23 – General provisions for the development of land including: Floor space ratio, (FSR) (maximum 1.5:1). 14 The following clauses in the LLEP apply: · 13 - General Objectives; · 15 - Heritage Conservation; · 16(8) - Conservation Areas; · 17(a) Housing; · 20 - Employment; · 21 - Development Control Table - Business Zone; and · 30 - Subdivision of land. 15 The façade and party wall of No 39 Booth Street is to be retained despite it not being an item of environmental heritage under the LLEP. State Environmental Planning Policy No 1 – Development standards, (SEPP1) 16 Under cl 23(1) of the LLEP the maximum FSR is 1.5:1 and as the proposal exceeds this, consent under SEPP1 is required. Other relevant SEPP's and REP'S 17 Other relevant environmental planning instruments are: · SEPP 55 Remediation of Land; and · SEPP 65 Design Quality of Residential Flat Development. Residential Development Control Plan, (RDCP) 18 Specific sections of the RDCP include: · A3.0 Principles of Ecologically Sustainable Development; · A4.0 Urban Form and design: · A5.0 Amenity; · A6.0 Site Analysis; · A7.0 Heritage Conservation; · A8.0 Parking Standards and Controls; · A10.3.4 Booth Street Distinctive Neighbourhood; · B1.1 and C1.1 Site Layout, Subdivision and Design; · B1.2 Building Form, Envelope and Siting; · B1.3 Car Parking; · B1.4 and C2.1 Site Drainage and Stormwater Control; · B1.5 and C1.4 Elevations and Materials; · B1.6 Front Gardens and Dwelling Entries, · B1.8 and C1.5 Site facilities; · B2.1 and C2.3Building Construction Thermal Mass and Materials; · B2.2 and C2.4 Solar Control - External Window Shading; · B2.3 and C2.5 Insulation; · B2.4 and C2.6 Natural Ventilation; · B2.5 and C2.7 Heating and Cooling; · B2.6 and C2.8 Using Solar Energy; · B2.7 Water Conservation and Management; · B3.1 Solar Access, Residential Amenity and Energy Efficiency; · B3.2 Private Open Space; · B3.3 Visual Privacy; · B3.5 Acoustic Privacy · B4.3 Laneway Development; · B4.6 Residential Development in Business Areas; · C1.2 Parking Layout, Servicing and Manoeuvring; · C1.3 Landscaping; · C1.6 Shopfronts; · C1.7 Protective Structures in the Public Domain - Balconies, Verandahs and Awnings; · C2.2 Energy Efficient Sizing and Layout; and · C2.9 Appliances and Equipment Interface Amenity. The proposal and its history 19 Development application No D/2003/835 was lodged with the respondent council on 8 October 2002, to demolish the existing building except for the façade and party wall of No 39 Booth Street and to erect a mixed use commercial/ residential development comprising three (3) commercial tenancies including a restaurant and five (5) dwellings, car park and to strata subdivide the land. 20 The development described in plans prepared by Hosking Munro, Architects. Option 3 is preferred by the applicant and is shown in drawing Nos HM700, OP3/D01-D04 Issue A, [Note: Exhibit F]. Option 2 preferred by the council is shown in drawing Nos HM700, OP2/D01-D04 Issue A, [Note: Exhibit E]. The proposal comprises: · Excavation for a car parking level; · Construction of a car park, accommodating seven (7) vehicles (including a disabled space), bicycle storage for seven (7) bikes, waste storage room, and various plant and equipment rooms; · Two (2) shops fronting Booth Street at ground level Shop 1 comprising 86.74m2 · Shop No 2 comprising 136.38m2 for the use as a restaurant (no fit out details provided); · A commercial tenancy to the rear fronting Booth Lane of 41.14m2; · Toilet facilities for the shop/commercial premises; · 3 x studio apartments at first floor; · 1 x 1 bedroom split-level apartment over the first and attic floors and 1 x 1 bedroom apartment (Option 3) or 2 x 1 bedroom apartments (Option 2); and · Strata subdivision. 21 The Booth Street footpath across the subject frontage ranges in level between RL 15.96m AHD to 16.30m AHD. 22 The proposed ground floor for No 39 Booth Street would have a finished ground floor level of RL 16.19m AHD, and No 41 Booth Street would have a finished ground floor level of RL16.36m AHD. 23 The proposed parapet to Booth Street would be at RL 24.57m AHD with the maximum roof height set back from Booth Street proposed to be RL 22.7m AHD for Option 2 and RL 25.4m AHD for Option 3. 24 For comparison purposes the maximum height on the boundary of No 43 Booth Street to the west is 27.39m AHD and that to the east, at No 37 Booth Street the height of the parapet is similar to that proposed at 24.57m AHD. 25 The proposal would have nil setbacks to the street boundary, and the east and west side boundaries. Nil setbacks are also proposed to the Booth Lane frontage at the rear. 26 Masonry construction is proposed with face brickwork to the Booth Street frontage and concrete floors. 27 An application to demolish the existing structures on the land was refused by the council on 9 December 2003. The present application was not the subject of any pre-DA meeting however, a previous development application was and this was refused by the council at its meeting held 9 December 2003. The present application was submitted in response to that refusal. Notification 28 The present application was notified to nearby owners and occupants in accordance with the Leichhardt Development Control Plan No 36, (DCP36) to forty-eight (48) adjacent properties by letter dated 2 January 2004 and the council received one (1) submission objecting to the proposal. 29 The council's environmental health officer raised no objections to the application subject to the imposition of conditions and completion of a remediation action plan and based upon the assessments contained within: · Primary Contamination Assessment for Nos 39-41 Booth St, Annandale (No: 418013/ESR) prepared by New Environment Management and Technology Pty Limited dated 5 March 2004; · Remediation Action Plan for 39-41 Booth St, Annandale (No: 418011/RAP) prepared by New Environment Management and Technology Pty Limited dated 6 March 2004; · Further Audit Advice (Ref JET1724-004/ETCJ) from Mr Ted Johnstone, EPA Accredited Site Auditor (No 9803) of Johnstone Environmental Technology dated 30 April, 20011, Architect Planner. Additional information 30 By letter dated 5 January 2004, the council requested the applicant to provide additional information in support the application: · A survey plan to AHD providing site details and the details of surrounding development, [Now provided in Exhibit C]; · Owners consent for the party wall between Nos 37 and 39 Booth Streets; · Coloured plans of the new work and areas of the buildings to be retained; · Materials and samples board for the development; and · A structural engineers report detailing the method of retention and support for the area of the building to be retained. 31 There was no dispute between the parties that the above information was not supplied or that it was in any way deficient. The council's decision 32 When the appeal was filed, the council had not determined the application. The council has now refused the original application, being "pre-Option minus 1", for reasons of, [Note: Exhibit 6]: 1. Non-compliance with council's floor space ratio controls; 2. The proposed development is contrary to the general objectives contained in cl 13 of the LEP2000; 3. Insufficient on-site car parking; and 4. Non-compliance with laneway development controls. The hearing 33 The appeal was filed on 4 July 2004, and the court-appointed expert Ms Laidlaw, did not raise objection to Option 2 [Note: Exhibits 1, 2 and 3]. The issues 34 On 15 August 2003 the council filed a statement of issues in respect of the original application: SEPP 55 - Remediation of Land 1. Whether the Court has jurisdiction to determine the development application in the absence of a satisfactory preliminary investigation that complies with the EPA guidelines as required by Clause 7(2) of State Environmental Planning Policy No 55 ("SEPP 55"). Particulars: (a) The history of the site was not determined prior to the mid 1940's and 1950's; (b) The environmental condition of the site was not determined at a sufficient number of locations; (c) An analysis of an adequate range of chemicals of potential concern was not undertaken; (d) No analysis of potential contaminants was undertaken over No 41 Booth Street. 2. Whether a detailed investigation pursuant to Clause 7(3) of SEPP 55 is required to be undertaken prior to the grant of consent. 3. Whether the Court can be satisfied that the site is suitable for the proposed use in the absence of development consent for remediation. SEPP 65 - Design Quality of Residential Flat Buildings 4. Whether the application should be approved having regard to clause 30(2) of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings. Aims and Objectives 5. Whether the proposal satisfies Clause 7(3) Land Use Objectives of LEP 2000. 6. Whether the proposal satisfies the requirements of Clause 13 - General Objectives of LEP 2000, in particular, Clauses 13(1)(b), 13(2) and 13(4). 7. Whether the proposal satisfies the requirements of Clause 20 of LEP 2000, in particular Clauses 20(c) and (f). Urban Design and Heritage Conservation 8. Whether the proposed development is inconsistent with the objectives for heritage items and the heritage conservation area, particularly in terms of enhancing the character and identity of Annandale, having regard to Clause 13(4) of Leichhardt Local Environmental Plan 2000. 9. Whether the proposed development satisfies Clause 14 - Urban Design Principles of LEP 2000, in particular Clauses 14(b), (c), (d), and (l). 10. Whether the proposed development is inconsistent with the objectives for heritage conservation, particularly in terms of protecting the streetscape and character of the Conservation Area, having regard to Clause 15(a), (b), (d), (e) and (f) of Leichhardt Local Environmental Plan 2000. 11. Whether the proposed development has an adverse affect on heritage significance of the Conservation Area, particularly in terms of compatibility of the size, form, scale, materials of the proposed development, having regard to Clauses 16(8) of Leichhardt Local Environmental Plan 2000. 12. Whether the proposed development satisfies the objectives and requirements of Part 7.0 - Heritage Conservation of the Leichhardt Development Control Plan 2000 (DCP 2000). Floor Space Ratio 13. Whether the proposal is unacceptable having regard to non-compliance with the floor space ratio controls in Clause 23 (1) (b) of the Leichhardt Local Environmental Plan 2000 ("LEP 2000"). 14. Whether the submitted State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") Objection in respect to Clause 23 (1) (b) of LEP 2000 should be supported and upheld. Diverse Housing 15. Whether the proposal fails to provide an appropriate mix of dwelling types in accordance with clause 19(6) of LEP 2000. 16. Whether the proposal can be approved having regard to the absence of a State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") Objection in respect to Clause 19(6) of LEP 2000. Height, Bulk and Scale and Streetscape Character 17. Whether the proposed development is compatible with the scale, form, design and character of existing development in the locality. 18. Whether the proposal satisfies the objectives and requirements of Part A 4.0 - Urban Form and Design and Part A 10.3 - Annandale Suburb Profile of DCP 2000, particularly with respect to Clause 10.3.4 - Booth Street Distinctive Neighbourhood, and the provisions of Clauses B 1.1, B 1.2, B 1.5, C 1.1, C 1.3 and C 1.4 of DCP 2000. 19. Whether the proposed development is inconsistent with the principles and controls for dwelling entries, having regard to the provisions of Part B1.6 of Leichhardt Development Control Plan 2000. Car Parking 20. Whether the proposed development is acceptable given the failure to comply with the controls for off street car parking, in particular the provision of disabled parking spaces and parking space dimensions having regard to the provisions of Part A8.0 of Leichhardt Development Control Plan 2000 . Amenity 21. Whether the proposed development satisfies the principles and requirements of DCP 2000, in particular: (a) Clause C2.2 - Energy Efficient Siting and Layout; (b) Clause C2.4 - Solar Control; (c) Clause C2.6 – Ventilation. 22. Whether the proposed development will have an unacceptable impact upon the residential amenity of adjoining properties with respect to Clause A5.0 Amenity, Clause B3.1 - Solar Access, Clause B3.3 - Visual Privacy and Clause B3.5 - Acoustic Privacy of DCP 2000. Development Types 23. Whether the proposal is acceptable with regard to the requirements of Clause B4.3 - Development Type 3: Laneway Development of DCP 2000. 24. Whether the proposal is acceptable with regard to the requirements of Clause B4.6 - Development Type 6: Residential Development in Business Areas of DCP 2000. The Public Interest 25. Whether the proposed development should be approved having regard to the public interest and the circumstances of the case.