Baker Kavanagh Architects Pty Ltd v Waverley Council [2005] NSWLEC 167

Land and Environment Court of New South Wales

CITATION : Baker Kavanagh Architects Pty Ltd v Waverley Council [2005] NSWLEC 167

APPLICANT Baker Kavanagh Architects Pty Ltd

PARTIES : RESPONDENT Waverley Council

FILE NUMBER(S) : 10967 of 2004

CORAM: Tuor C.

Development Application :- adaptive reuse of church for residential purposes and construction of townhouses use of conservation incentives clause KEY ISSUES: impact on heritage item and conservation area conservation depends on granting of consent impact on amenity of adjoining residents and occupants of development

LEGISLATION CITED: Waverley Local Environmental Plan 1996

CASES CITED: Baker Kavanagh Architects Pty Ltd v Waverley Council [2004] NSWLEC 662

DATES OF HEARING: 20/12/04 and 04/03/05

DATE OF JUDGMENT: 04/15/2005

APPLICANT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Mr D Wilson, barrister SOLICITORS Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

15 April 2005

10967 of 2004 Baker Kavanagh Architects Pty Ltd v Waverley Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Waverley Municipal Council (the council) of a development application (DA50/2004) to convert a former church building into two dwellings and to construct four townhouses with basement parking for 12 cars at 72 Mill Hill Road, Bondi Junction (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be dismissed and development consent refused. The site and its context 3 The site is on a prominent corner location and is rectangular in shape with an area of 737.8sqm. It has frontages of approximately 12m to Denison Street and Mill Hill Road and approximately 60.5m to Ebley Street. 4 The former church occupies the eastern half of the site. The rest of the site is vacant with a large tree at its western end. The building is no longer used as a church and has been operating as a childcare centre in recent years. 5 Surrounding development to the north, west and south is predominately one and two-storey terraces. The Bondi Junction commercial centre is located to the east on the opposite side of Denison Street. The proposal and its history 6 The application was lodged on 5 February 2004 and was notified to adjoining and nearby residents. Council received a number of objections and some letters of support for the proposal. The Joint Randwick/ Waverley Design Review Panel considered the application and did not support the proposal primarily because of the internal amenity issues. The application was amended a number of times and at the time of the hearing had not been determined by council. 7 The proposal is to demolish later additions to the former church and convert it to 2x3 bedroom dwellings and a caretaker's room and to construct 4x3 bedroom townhouses and basement parking for 12 cars (10 stacked spaces) accessed off Mill Hill Road. Planning Framework 8 The site is zoned 5(a) Special Uses "Place of Public Worship" under Waverley Local Environmental Plan 1996 (LEP 1996). Residential development is prohibited within the zone. 9 The church building and its site are listed as a heritage item and are within the Mill Hill Conservation Area under LEP 1996. 10 The proposal relies for its permissibility on the conservation incentives in cl 50 of LEP 1996 which states: