Nahas Construction Pty Ltd v Ashfield Municipal Council [2005] NSWLEC 223

Land and Environment Court of New South Wales

CITATION : Nahas Construction Pty Ltd v Ashfield Municipal Council [2005] NSWLEC 223

APPLICANT Nahas Construction Pty Ltd

PARTIES : RESPONDENT Ashfield Municipal Council

FILE NUMBER(S) : 11440 of 2004

CORAM: Bly C

Development Application :- Demolition of existing commercial building - erection of a residential flat building - maximum floor space - landscaping - communal open space - privacy KEY ISSUES:

Ashfield Local Environmental Plan 1985 LEGISLATION CITED: Development Control Plan No. 1 - Dwellings in Residential Zones State Environmental Planning Policy No. 65

DATES OF HEARING: 11, 12 and 20/04/2005 EX TEMPORE JUDGMENT DATE : 04/13/2005

APPLICANT Mr J Bingham, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr A Simpson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C

13 April 2005

11440 of 2004 Nahas Construction Pty Ltd v Ashfied Municipal Council

JUDGMENT

1 This appeal relates to development application No. 257/2004 which is for the demolition of an existing commercial building and the construction of a residential flat building comprising basement car park and 28 residential apartments in three buildings (referred to as buildings 1, 2 and 3), and strata subdivision at 122-125 Bland Street, Ashfield. 2 The site is located on the south-eastern side of Bland Street approximately 30 m south of the intersection of Bland Street and Parramatta Road. It has an area of some 2614 sq m. 3 A burnt-out warehouse and furniture show room is located immediately to the north-east of the site facing Parramatta Road and Bland Street. Existing development to the south-west of the site comprises single-storey attached dwellings along Bland Street. There are also a series of one and two-storey attached dwellings and some duplexes to the south and south-west of the site facing Curt Street. Development to the north-west on the opposite side of Bland Street comprises three and four-storey walk-up flats. Adjoining the site to the south-east is an existing two-storey brick townhouse development which forms part of a five-storey residential flat building development at 98 Chandos Street, which development is known as Ashfield Gardens. 4 The site is zoned Business Special 3(b) under Ashfield Local Environmental Plan 1985 ("the LEP"). In this zone the proposal is prohibited but for cl 38A of the LEP which by reference to a map included in Amendment No. 61 to the LEP ("Amendment 61") makes multiple dwellings permissible. 5 Relevantly applicable is Development Control Plan No 1, Dwellings in Residential Zones ("DCP 1"). DCP 1 relevantly to this appeal contains general provisions dealing with landscape area, maximum floor space, communal and private open space, solar access and setbacks. DCP 1 also contains a number of special provisions in Appendix 2 for the major multi-unit sites identified by the Amendment 61 map, which relevantly to this site, applies a maximum gross floor area of 2400 sq m. 6 There was some argument as to whether the general provisions in DCP 1 are applicable to the multi-unit sites referred to in Appendix 2. Under the heading Desired Outcomes, Appendix 2 states that: