Caporale Designs Pty Ltd v Hurstville City Council [2004] NSWLEC 25

Land and Environment Court of New South Wales

CITATION : Caporale Designs Pty Ltd v Hurstville City Council [2004] NSWLEC 25 APPLICANT Caporale Designs Pty Ltd PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 11209; 11277 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- To extend the use of existing ground floor - retail and commercial uses - conversion of residential use Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville City Council Development Control Plan No. 4 Local Environmental Plan CASES CITED: DATES OF HEARING: 07/01/04 EX TEMPORE 01/08/2004 JUDGMENT DATE :

APPLICANT Mrs Mary-Lynne Taylor, solicitor SOLICITORS Taylor Kelso LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor SOLICITOR Deacons

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11209 of 2003 11277 of 2003

Hoffman C

8 January 2004 Caporale Designs Pty Ltd Applicant v Hurstville City Council Respondent Judgment 1 This was two class one Appeals Nos. 11209 of 2003 and 11277 of 2003 between Caporale Designs Pty Ltd and Hurstville City Council in regard to the refusal of an application to extend the use of existing ground floor retail and commercial units to include residential use as an option along with retail and commercial uses. 2 Appeal 11209 related to the change of use only and Appeal 11277 related to the ability or not of the retail and commercial units to be converted to residential use complying with the Building Code of Australia and other applicable statutes. Appeal 11277 was agreed between the parties to be deferred pending the decision on Appeal 11209. If this decision on Appeal 11209 was favourable to the applicant then construction details would need to be provided as evidence in Appeal 11277. The applicants sought a staged development under s 80 of the Environmental Planning and Assessment Act 1979. 3 The documentation before the Court was sufficient for a stage 1 consent under ss 80(4) and 80 (5) for a further development application. By the end of the hearing the proposal had changed sufficiently that documentation in Appeal 11277 would be considerably different and the applicant chose to withdraw that appeal without objection from the respondent. 4 The site was at No. 17 MacMahon Street, Hurstville, which had on it two residential towers, Block A of 11 storeys and Block B of 8 storeys housing 58 apartments with a shared basement carpark. There was a courtyard between the two towers. At the front of the courtyard on the street frontage was a heritage building, a two-storey brick structure of Federation style housing a pharmacy that had been on the site for almost 90 years and was still trading. The original application sought to permit residential uses in all the ground floor retail and commercial units in both towers. At the on site hearing it was modified by consent of the parties to be for only units 29-32 in Block A. 5 The applicant sought a staged development consent as previously referred to, and on those matters the Court heard evidence and submissions from: * Mr P Rigg, solicitor of Deacons for Hurstville City Council * Ms T Christy, senior planner at Hurstville City Council * Mr G Deehan, senior health and building surveyor, Hurstville City Council * Mrs Mary-Lynne Taylor of Taylor Kelso, solicitors for the applicant * Mr G Caporale, applicant * Mrs R Caporale, applicant, company director and project architect * Mr G Patch, hertiage consultant * Mr P Smith, of Conway Smith and Associates, Building Code Compliance Consultants * Mr M Eversson, economic expert, Hirst Consultant Services * Mr M Neustein, Neustein Rosenberg Partnership, urban planners and * Ms S Parker of Taylor Kelso, legal assistant