R L Starr Architects Pty Ltd v Blue Mountains City Council [2004] NSWLEC 609

Land and Environment Court of New South Wales

CITATION : R L Starr Architects Pty Ltd v Blue Mountains City Council [2004] NSWLEC 609 APPLICANT R L Starr Architects Pty Ltd PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10510 of 2004 CORAM: Murrell C KEY ISSUES: Development Application :- Erection of a two-storey commemrcial development - retention of current dwelling as dental practice - weight to be given to draft LEP

LEGISLATION CITED: Environmental Planning and Assessment Act Blue Mountains Local Environmental Plan CASES CITED: DATES OF HEARING: 08-09/09/2004 EX TEMPORE 09/09/2004 JUDGMENT DATE :

APPLICANT Mr C McEwan, barrister SOLICITORS Fisher Chapman LEGAL REPRESENTATIVES: RESPONDENT Mr J Robson, barrister SOLICITORS McPhee Kelshaw

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

9 September 2004

10510 of 2004 R L Starr Architects Pty Ltd v Blue Mountains City Council

JUDGMENT

1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning Assessment Act against Blue Mountains City Council's refusal of a development application for the property known as No. 86 Railway Parade, Leura. The proposal, in summary, is for the erection of a two storey commercial development at the rear of the existing dwelling house containing three shops with commercial space on the first floor level. The development application is also for the retention of the dwelling house on the subject site and the provision of 12 parking spaces. 2 By way of background, it is noted that council granted development consent in August 2002 for the use of the dwelling house as a dental surgery and it is also noted that the amended plans to which council raised no objection, now show the dwelling house at the front of the property to be used as a dental practice for one practitioner. In this regard, the intensity has been reduced as it was originally proposed that there be two dental practitioners. The original development application to which council granted consent in August 2002 had provision for nine car parking spaces. The subject development application has provision for 12 car parking spaces. 3 The subject site is on the northern extremity of the Leura town centre and the Leura town centre is contained within the streets of Megalong Street, Grose Street, Railway Parade and Leura Mall. The subject property, together with all the properties to the south on Railway Parade, are proposed to be zoned for village housing under the draft plan. The existing house is the beginning of the residential dwellings fronting Railway Parade. 4 It is noted that many of the dwellings in the area of the subject block that I have described contain commercial or semi-commercial uses, such as medical practitioners, massage health studios etcetera. 5 The Leura Mall area has a parking area within the block that I have described which has access from Megalong Street to the parking area that services the retail premises that front the Leura Mall. There are a number of laneways, pedestrian paths within the block that I have described and at the rear of the subject site, there is what is known as Post Office Lane. There has been a recent development along the laneway that provides for further commercial retail uses at the rear of what was the old post office. 6 It is also noted that the dwelling house next door to the subject property at No. 87 is proposed to be listed as a heritage item. It is also noted that currently, Nos. 86 and 87 are within a heritage conservation area, although it is proposed that this be deleted in the draft LEP. 7 The provisions of the draft LEP have been most important during these proceedings. The first issue is whether in fact the Court should give determinative weight to the draft LEP, in that the proposed development will be prohibited under the draft LEP, once it is made. It is noted that there is a savings provisions within the draft LEP, such that developments are to be considered as if the plan was exhibited but not made on the finalisation of that plan. The savings provision is contained at cl 6 subcl (4). It is also noted that the draft LEP has been through an extensive process in terms of its plan making. The council referred the plan, the draft plan, to the department in December 2003 and the matter has proceeded to the stage where a S 69 report is in the course of preparation. 8 The plan has also been referred to the Parliamentary Counsel and the evidence to the Court is that this document, which is in excess of 450 pages, has been not approved at this point in time, but there are few outstanding matters with respect to Parliamentary Counsel's consideration of it and it would appear that the Parliamentary Counsel, the minor points to be resolved do not relate to the development of this site or the zoning or the provisions of the plan in respect of the subject land. It is noted that the plan preparation of the draft LEP has been most extensive. It was the subject of a commission of inquiry and in that regard, the council has assisted the Court in understanding the basis and rationale for the plan. 9 It is noted that the subject site is currently zoned under the LEP No. 4 for Blue Mountains and it is zoned 3A, General Business, wherein the proposed commercial uses and shops, retail shops, are permissible under the current zoning. However, the Court has given significant weight to the draft plan. It was submitted on behalf of the council that the Court should give determinative weight to the draft plan. However, in doing so I must consider the whole of the plan. In my assessment, based on the judgments that have been handed up to the Court, which I have read, in terms of the regime or principles that I should consider in a draft plan and the weight that one should give to it, I must also have regard to the whole of the plan - that is a holistic reading including regard to the broad objectives of the plan. I am of the opinion that the proposed development is one that will not be an aberration or antipathetic to the provisions of the plan and I will provide greater detail when I go through the provisions of that plan. 10 In consideration of whether a draft plan is to be given determinative weight, one must also assess whether in fact the proposed development will be anomalous or anti-pathetic to the overall provisions and objectives or planning intent of the draft plan. I am satisfied that whilst the plan is certain and imminent in terms of the evidence that has been provided to the Court, I am of the opinion that approval of the proposed development would not undermine the provisions of that plan and that the proposed development would sit comfortably in the context of the draft plan. 11 It is noted that the draft plan does provide for a zone boundary adjustment and whilst I agree with the council that the provision in cl 34 with respect to the 20 m zone boundary adjustment would not apply to this development application, nonetheless, in terms of the intent of the plan, it does provide some insight into the fact that zone boundaries are not seen as 'fixed fences' as such and that one must have regard to the adjoining boundaries. That is, the interface between zones is recognized in this plan by not only the zone boundary adjustment provision at cl 34, but also one must have regard to the fact that consent shall not be granted to a development on land that adjoins land in another zone, unless the development proposed to be carried out does not compromise achieving the objectives of the adjoining zone and the consent authority is satisfied that sufficient consideration has been given to the measures proposed to reduce any adverse impact on the development on land within that adjoining zone. (I have just read cl 13 subcl (2) of the plan). 12 Also, cl 13(1) requires consent shall not be granted, unless the development complies with the zone objectives and that the subject site is zoned "Village Housing" under the draft plan and consent should not be granted, unless development proposed to be carried out complies with the provisions that apply to the land as specified in the relevant village within Sch 1. 13 Just to comment on the zone objectives; it is noted that the zone objectives, as pointed out by the council, are ones that relate to housing. The proposed development is one that will not provide for housing as such and the relevance of the zone objectives must be considered in the context of the total plan as well. And in this regard, I move to the provisions of the plan in terms of the Leura Village that provides for an assessment in terms of the specific objectives for the village housing in Leura. 14 The plan provides for consideration to be given to the precincts in terms of the descriptions and in terms of the desired future use. In terms of this particular precinct which is the eastern edge precinct, consent shall not be granted to development within the precinct, unless it complies with the precinct objectives in achieving the precinct vision and the building envelope of the precinct and is consistent with the design considerations within this division. In terms of the desired future character, it is noted that defining the eastern edge of the Leura village centre, this precinct serves as a transition between the retail core and adjacent residential areas. It accommodates a mix of land uses, including lower order commercial and smaller home based employment activities. New development reflects the mix of residential and commercial uses. However, new development is consistent with the predominantly residential streetscape which is characterised by one and two storey scale development. 15 There are also a number of precinct objectives and a building envelope, as well as a building setback. 16 The proposed development does not comply with the minimum side boundary setback of 2 m. The proposal has, on its eastern edge, a relatively small setback nearing nil setback and the site coverage of the proposed development is consistent with the provision contained within cl 3 of the precinct on site coverage, in that it does not exceed 50% of the total allotment in terms of site coverage. The proposed development is some 35%. 17 The Blue Mountains Draft Plan, as I said, has gone through a most extensive and comprehensive consideration by the council and an exhibition process and it is one that the Court must not take lightly. It is well founded, but at the same time, in terms of this development, I must have regard to the fact that the proposal would not be antipathetic to its provisions and importantly, I am also of the opinion that it will sit comfortably with the juxtaposition of the two zones. The proposal from Railway Parade will meet council's requirements in terms of residential development being maintained on Railway Parade. Heritage was not raised as an issue and it was agreed between the experts that this is not an issue in the proceedings. However, it is a matter that I must have consideration to in terms of the existing provisions of the LEP 4, as the site is in a conservation area and I also must have regard to the fact that the adjoining property at No. 87 as a heritage item. Standard heritage provisions are contained in the plan and I must be satisfied that the proposed development will not impact adversely or significantly such as to warrant refusal. In that regard, I am satisfied that the proposal, based on the evidence of the experts, is satisfactory in this regard as well. 18 It is noted that in the consideration of the zoning of Nos. 86 and 87, that they were identified as being (reading from council's Exhibit 15 on the submissions on the draft LEP – in response to submissions made for 86 and 87, it is noted that as a result of Commissioner Carlton's recommendation to consolidate the village town centre of Leura, the zoning of all lots in the business centre was examined) more related to the residential properties neighbouring them than part of the retail core. Both lots form part of a residential streetscape and contain large houses set in substantial gardens which sets them apart from the developed commercial centre. For this reason, these lots have been included in the village housing zone that acts as a transition between the retail core and the residential areas further east. It should be noted that there remains scope to achieve a commercial return from property zoned "village housing" as permissible uses include home employment and refreshment rooms, along with any existing use rights that apply and in terms of understanding the zoning of the subject site, I am satisfied that the proposed development is not inconsistent with what is envisaged in this regard. 19 The proposal represents a satisfactory resolution, in my assessment, of the interface between the village town centre zone and the village housing zone, in that the rear of this property will relate to the village town centre and in fact, it will provide an active frontage to the village town centre where it adjoins Post Office Lane, as opposed to presenting as a fence, as it currently does. When viewed from Railway Parade, the proposed development will basically read as the existing residential house. Yes, the two storey development at the rear of the site will be visible, but it is not one that would detract from the residential character of the area which is one of the aims in zoning the subject site "village housing". 20 The other issues that were raised during the proceedings relate to car parking on the site and the manoeuvrability, or rather, the effectiveness of the driveway in terms of allowing cars to pass on the site. In this regard, the experts conferred. The experts that gave evidence to the proceedings with respect to traffic and parking are: Mr Hazell for the applicant and Mr Price; and Mr Roberts for the council. As a result of their joint statements and their conferencing, the Court notes that there is general agreement with respect to the number of car parking spaces that should be provided on this site and that is 14. There was some discussion about the s 94 plan. It is noted that there is a s 94 plan that pertains to the Leura area and there is a contribution that is required for shortfall of parking. The applicant has agreed - and indeed, it is appropriate - that the 14 spaces - that is, 12 on site with a contribution for two spaces - be provided and in this regard a condition is proposed. 21 With respect to the driveway, it was noted that the original approval for the dental practice in fact did allow for vehicles to pass on the site and indeed, the Court supports the principle of this being accommodated on the site because it would be an undesirable precedent to allow the driveway without a passing bay and in that regard, the amended plan was put forward to the Court which also retains a tree on the site to allow the passing of a vehicle, such that this can be contained on site without external impacts to the road system. 22 With respect to the setback to No. 87, I have had regard to the comments of the council's consultant planner, Mr Kennan, in this regard and also the comments of the applicant's expert town planner, Ms LaidIaw. I am satisfied that there will be no adverse impact created by the proposal with a minimal setback to No. 87 and it will not impact on the heritage significance of that dwelling. In its context the proposed development, having regard to the proposal addressing Post Office Lane, I am satisfied that the reduced setback, is appropriate in the circumstances. 23 At the end of the proceedings, there was disagreement with respect to the drainage issue. The drainage issue is one that has not been resolved. However, the parties have agreed to a condition which would require the council's proposal to be implemented if the applicant cannot otherwise satisfy the council with respect to the drainage and in that regard, the condition is framed in these terms and is acceptable to the council. 24 This appeal is one that has been case managed. It is noted that there were a number of issues originally raised when the appeal was lodged with the Court. However, many of those issues have been resolved by an amendment or discussions with the experts. The applicant has also submitted that there be a condition in the consent which is agreed to by the council, such that the consent for the dental surgery be surrendered when the commencement of works in respect of this development consent are commenced. 25 The draft LEP, it is noted, re-zones a total of five properties from town centre to village housing. They are three internal lots and Nos. 86 and 87. In terms of the economic impact of the development, this was not raised in itself as an issue. It is noted that the council purposefully has contained the Leura town centre. The council has had studies undertaken with respect to the viability of centres and the amount of land zoned for the village town centre. And in this regard, it is noted that there was a proposal that the village town centre be expanded by some three times the size that it now appears in the draft plan and this may have had consequences for the town centre. However, the commercial development of the rear part of this lot I am satisfied will not impact on the viability of the existing centre. Council clearly has visions for vitality and vibrancy of its centres and containment of such centres supported by village housing and I am satisfied that the proposed development will not undermine those objectives. 26 In terms of the proposed development and the active frontage to Post Office Lane, it is noted that for the actual Leura town centre itself, that the laneways be active with surveillance of those laneways. There was some dispute about the relevance of this provision to this proposal, given that council had demarcated the zone boundary and that the subject site be in the village housing zone. I am satisfied, however, that the address of this particular proposal to Post Office Lane can only assist in providing or supporting council's overall vision for its town centre of Leura and I am satisfied that this proposal is consistent with the draft LEP and supports the draft LEP in many respects, even though the future zone is for housing. 27 In appeals such as this, it is important that the Court give serious consideration to council's future vision as articulated in its local environmental draft plans. As to whether I give determinative weight to the draft plan in my assessment, determinative weight plan also includes consideration of whether the proposal will be an aberration in terms of when the draft plan is finally gazetted and I am satisfied that this subject proposal and the merits of this proposal currently before the Court are such that it warrants approval. 28 The village housing zone, it is noted, in the draft plan is also called a transitional zone for transitional zones it is important that the interface of the zones be considered and as I also stated, whilst this is not one which would allow for the zone boundary adjustment, it does allow for a respectful resolution of that zone boundary interface. 29 The proposal cannot be seen as a precedent or one that undermines the overall aims and objectives and overall vision contemplated in council's draft plan. 30 On the basis of my assessment, the orders of the Court are: