6-10 Hyde Park Road Pty Limited v Auburn Council [2005] NSWLEC 653

Land and Environment Court of New South Wales

CITATION : 6-10 Hyde Park Road Pty Limited v Auburn Council [2005] NSWLEC 653

APPLICANT: 6-10 Hyde Park Road Pty Limited PARTIES : RESPONDENT: Auburn Council

FILE NUMBER(S) : 11578 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- No principal-contested issue.

Environmental Planning and Assessment Act 1979 and EPA Regulations 2000 LEGISLATION CITED: Auburn Local Environmental Plan 2000, (ALEP) State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65)

DATES OF HEARING: 16/11/2005 EX TEMPORE JUDGMENT DATE : 11/16/2005

APPLICANT: Mr A Galasso, barrister instructed by Mr N Kerz, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Milad S Raad & Associates

RESPONDENT: Ms C A Schofield, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

16 November 2005

11578 of 2004 - 6-10 Hyde Park Road Pty Limited v Auburn Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Auburn Council (the council) to refuse a development application to demolish the existing structures on the land and to construct a part two-storey, part three-storey (attic) residential flat building containing fourteen (14) units (amended to ten (10)) and basement car parking for seventeen (17) vehicles, (amended to eleven (11)) and to strata subdivide land at Lot 1, DP 803599, being Nos 6-10 Hyde Park Road, Berala. 2 I visited the land in company with the parties on the morning of the first day of proceedings and I heard from local residents. 3 I have concluded that the application can be approved under s 79C of the Environmental Planning and Assessment Act 1979 as the residual matters identified by the Court-appointed expert have been resolved. The land 4 The land is situated on the southwestern corner of Hyde Park Road and Fourth Avenue at Berala. The land has a frontage of 21.34m to Hyde Park Road, a frontage of 33.53m to Fourth Avenue, with an area of 715m2. A vacant single-storey commercial building occupies the land and this would be demolished if consent were granted. A car park area is located at the rear with vehicular access off Fourth Avenue. The Fourth Avenue setback is landscaped. 1 The land is generally flat, with a slight slope towards the north from 100.4m AHD to 98.733m AHD and a fall of 1.6m. 2 At No 2A Fourth Avenue to the south and No 12 Hyde Park Road to the west are single storey dwellings. 2.1 The locality is characterised predominantly by single-storey and two-storey detached dwellings of varying age and style that reflect the low-density residential 2(a) zoning of the area. The land is about 200m from the nearest commercial premises in Burke Avenue and 220m from Berala Station so is relatively close to, and within walking distance of public transport. Relevant planning controls Auburn Local Environmental Plan 2000, (ALEP) 3 Under the provisions of the ALEP the land is zoned Residential 2(a) and the proposal is prohibited as being a type of 'multiple dwellings', 'residential flat buildings', 'serviced apartments'. 4 Under cl 14 of ALEP the consent authority may grant consent only if the proposal is compatible with the existing and likely future character and amenity of nearby properties. 5 Under cl 48 of ALEP, the council or the Court on appeal, must not consent to development within certain zones if it is considered that the proposed development will prevent the surrounding lots from being developed in accordance with the LEP. In this regard, the council is satisfied that the development of the subject land will not prevent adjoining land from being developed in accordance with the provisions of the LEP, which envisages predominantly low density residential dwelling houses. Environmental Planning and Assessment Act 1979 and EPA Regulations 2000 6 Despite this, the parties are agreed that the land enjoys 'existing use rights'. The issue of 'existing use rights' had been considered by the Land and Environment Court, when the Court declared in November 2002 that: a) Development Consent No 106/96 issued by Auburn Council on June 20 1996 remains in full and effect. b) Development Consent No 106/96 issued by Auburn Council on June 20 1996 has not been invalidated, lapsed or otherwise rendered inoperative or ineffective. c) The property known as 6-10 Hyde Park Road Berala has existing use rights as a clothing design workroom and office pursuant to Development Consent No.106/96 issued by Auburn Council on 20 June 1996. 7 Since that date, the parties are agreed that existing use rights have not been abandoned. 8 Under ss 106 to 109B of the Environmental Planning and Assessment Act 1979 the council, or the Court on appeal, may consider a development application for an enlargement, expansion, intensification, rebuilding and change to another non-conforming use, as proposed in this instance. 9 Section 79C of the Environmental Planning and Assessment Act 1979 is also relevant in the assessment of this application. Further, cll 39-46 of the Environmental Planning and Assessment Regulation 2000 are relevant to existing uses. State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65) 10 SEPP65 was gazetted 26 July 2002 and applies to the assessment of development applications for residential flat buildings of three or more storeys in height and containing at least (4) dwellings. Clause 30(2) of SEPP65 requires that consent authority to consider the design quality of the residential flat building when evaluated in accordance with the design principles contained in SEPP65 and the Residential Flat Design Code. 11 The applicant has made an assessment of the proposed residential flat building under this planning instrument, [Exhibit F]. The proposal and its history 12 Development application No 241/03 was lodged with the respondent council on 27 May 2003 to erect a residential flat building on the land under existing use rights. 13 The original proposed floor space ratio, (FSR) was 1.92:1. However, the proposal as amended in the Revision F plans has a FSR of 1.08:1. The building would not be set back from the front property alignment in Hyde Park Road, it would be 3.0m from the southern boundary and 6.0m from the western boundary of the land. 14 All residential units would be oriented towards the Fourth Avenue. Three units, (Units 3, 5 and 7) would contain 1 bedroom and study, the remaining seven units would comprise 2 bedrooms. All the units are provided with private terraces or balconies of varying size and these are either facing towards the Fourth Avenue. Courtyards at ground level are provided for Units 1, 2, 3 and 4. 15 A basement car park for 11 vehicles is proposed with vehicular access linking with Hyde Park Road. Two of the spaces are designated for visitor use. A ground level car space is provided for Unit 1 the adaptable unit. 16 The basement contains a garbage room and small storage areas for residents. 17 The applicant proposes to strata subdivide the completed development. Notification 18 The original development application was notified to eighteen nearby owners and occupants between 9 July and 30 July 2003 and invited to comment. The council received 240 submissions in respect of the proposal. The objectors commented: · the proposal represents an overdevelopment of the site and is out of character with existing development in the locality; · concern that a series of applications could be lodged for residential flat buildings on other sites in the locality, significantly altering the character of the area; · the proposed development is likely to generate additional levels of traffic which will pose safety problems for the number of small children residing in the area; · increased air pollution; · loss of privacy; · increased overshadowing to adjoining residential properties; · devaluation of property values; · the proposed redevelopment will result in excessive number of waste bins being left out onto the street and lead to increased accumulation of garbage in the locality; · the development offers no solution as to how the underground car park will handle the large water flows that already occurs naturally down the footpath. a proper water flow study should be undertaken and the required safe drainage installed; · local residents were not sufficiently advised of the proposed development; · insufficient site area to accommodate the proposed development; · consideration needs to be given to any damage caused to the foundations of adjoining property as a result of the proposed development; · the current owner has never used the property as a clothing design and manufacture workshop. The applicant's statements that the property has existing use rights is incorrect. The previous owner of the property used a 'small corner component of the single storey shop area and no clothing design activities were seen on the site. The occupant did not interfere with the local community and the building maintained its character; · increased on-street parking as a result of the proposed development will create additional parking impacts on existing residents; · the proposed development is out of character with the existing development in the locality; and · the proposal does not follow the Dual Occupancy and Detached Dwellings Development Control Plan. 19 A further amended proposal was renotified on 30 March to 22 April 2005. Over 300 submissions were received to both notifications. Internal referrals 20 The application was referred to the departments of the council dealing with development applications. Development Engineer 21 The council's development engineer advised that the originally proposed stormwater drainage design was thought to be unsatisfactory and could not be supported. The latest amendment of the plans is now considered satisfactory. Building Surveyor 22 The council's senior building surveyor advised that the original proposal would comply with the relevant provisions of the Building Code of Australia. The latest amendment is also considered to comply. Urban Designer 23 The council's urban designer confirmed, that having regard to an analysis of the immediate and broader context, and the specific opportunities and constraints of the development site, the most appropriate residential building type for the land would be a townhouse style development. 24 He pointed out in respect of the original proposal that: …the land is not located adjacent to or in the vicinity of other current or likely future residential flat buildings and as such, the proposal needs to respond to the site's context within the envelope constraints articulated in the DCP for townhouses and must also provide an open space of adequate amenity and accessibility. Heights greater than two storeys are inappropriate given the current and likely future character of the locality. A third storey component to Hyde Park Road would be considered acceptable providing it was integrated within the design of a roof structure. Some other important considerations are: · The front setback to Fourth Avenue should be 4 metres consistent with the adjoining detached dwelling. The front boundary setback to Hyde Park Road should be a minimum of 3 metres. The balconies above ground level may encroach upon this space in view of the zero setback edge to nearby existing buildings. · The side boundary setbacks should be a minimum of 1.2 metres. · Car parking should be provided in a basement level. · Rear courtyards should be provided consistent with the provisions of the Multiple Dwellings DCP. · The floor space ratio should be in the vicinity of 0.7:1, well below the 1.9:1 that is proposed in this application. 25 Since then the application has been further amended to address some of the urban designer's concerns. The council's decision 26 By notice dated 22 July 2004 the council refused the application for the following reasons: 1. The proposed development, pursuant to the provisions of Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, is not consistent with the relevant provisions and related design quality principles of State Environmental Planning Policy 65 - Design Quality of Residential Flat Development and is therefore unsatisfactory. 2. Pursuant to the provisions of Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development does not satisfy the objectives of the Residential 2(a) zone as contained in Part 4, Clause 11(1)(a) of the Auburn Local Environmental Plan 2000, including: a) To identify localities suitable for low-density residential development. 3. Having regard to the excessive bulk and scale of the proposal, and pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is unsatisfactory and represents an over development of the subject site. 4. The proposed development, pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, is unsatisfactory given the inadequate proposed means of pedestrian access and access to communal open space. 5. Pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is excessive in terms of bulk, scale, size, height, density; floor space ratio, number of units, site coverage and would adversely impact upon the amenity of the locality. 6. Pursuant to the provisions of Section 79C(1)(b) and Section 79C(1)(c) of the Environmental Planning and Assessment Act 1979, insufficient information has been provided by the applicant to allow a proper and thorough assessment of the impacts of the proposed development and the suitability of the site for the development. In this respect properly drawn architectural plans, drawn to scale of 1:100 and showing levels, dimensions and plans showing the relationship of the building to the adjoining developments, survey plans, SEPP 65 analysis have not been submitted to allow a proper assessment of the application. 7. Pursuant to the provisions of Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, the proposed development is unsatisfactory as it fails to demonstrate acceptable emergency overland flow and overflow of stormwater from the subject land and adjacent property. 8. The proposed development, pursuant to the provision of Section 79(1)(c) of the Environmental Planning and Assessment Act 1979 is unsatisfactory and is likely to adversely impact on the amenity of the adjoining residential development in terms of privacy and overlooking. 9. Having regard to the previous reasons noted above and the number of submissions received by Council against the proposed development, pursuant to the provisions of Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979, approval of the development application is not in the public interest. The hearing 27 The appeal was filed on 15 December 2004. 28 At the hearing the court heard evidence on behalf of the respondent council from local residents including: · Mrs June Smith, resident of 12 Hyde Park Road, Berala; · Ms Trish Parata, resident of 2A Fourth Avenue, Berala; · Mr Alan Patterson, resident of 1 Fourth Avenue, Berala; · Ms Leanne Saville, resident of 2 Fourth Avenue, Berala; · Mr Edgar Amores, resident of 45 Third Avenue, Berala; · Ms Zena Dabboussy-Bardouh, owner of 6 Fourth Avenue, Berala; · Mr Justin Sheridan, resident of 11 Fourth Avenue, Berala. 29 Others present included: · Tran, resident of 2 Third Avenue, Berala; · Tran, resident of 1 First Avenue, Berala; · N Aurnevic, resident of 29 Hyde Park Road, Berala; · Ljubica Locherl, resident of 23 Hyde Park Road, Berala; · Ms Carmel Patterson, resident of 1 Fourth Avenue, Berala; 30 The Court-appointed expert Ms M D Laidlaw gave planning evidence. Mr H Pearman, town planner of the Auburn Council prepared the statement of basic facts. The issues 31 On 20 May 2005 the council filed a statement of issues. LEP 2000 1. The proposed development does not comply with the following clauses of Auburn Local Environmental Plan 2000: a. Clause 8(4)(b) and (d) b. Clause 14(a), (c), (e), (f) and (h). Privacy 2. The proposed development would result in unacceptable overlooking to the adjoining properties in Fourth Avenue and Hyde Park Road, Berala. Overshadowing 3. The proposed development would result in unacceptable overshadowing to the adjoining properties in Fourth Avenue and Hyde Park Road, Berala. Urban Design, Height, Bulk and Scale 4. The proposed development is unacceptable in terms of the proposed height, bulk and scale in the context and is a poor urban design response for the site. Particulars The proposed development is inappropriate for reasons including the following: · the corner of Hyde park road and fourth avenue should be addressed with a splay, a two-storey element and greater length along the street; · the third-storey element should be deleted; · the first-floor element which extends over the driveway should be deleted; · the podium should be reduced to a maximum height of one metre; · the building should be articulated into clear vertical and horizontal elements; and · the fenestration should be organised into rational groups of solids, voids and openings. Internal Amenity 5. The internal amenity of the proposed units is unacceptable particularly with respect to the inadequate size of the units and their orientation and layout. Particulars · Residential Flat Design Code (SEPP 65) requires a two-bedroom unit to have a minimum area of 70 sq. metres - units 2, 3, 4, 6, 7 and 8 do not comply. · Most of the units face east/west and it would be better to locate the bedrooms on the east and the living areas on the west to provide better orientation for the bedrooms and direct access from living areas to courtyards. Inadequate Information 6. Development consent should not be granted as insufficient information has been provided by the applicant to allow a proper and thorough assessment of the impacts of the proposed developments and the suitability of the site for the development. Particulars Inadequate details have been provided with respect to: · location of street drainage pipe; · ventilation of basement; · localised flooding levels and impact on the proposed development and in particular the basement carpark and driveway; · materials palette; · details of planter boxes; · details of shrubs and trees on the landscape plan; and · the SEPP 65 statement addresses the first three (3) SEPP 65 principles but not the remaining five (5). Driveway 7. The 3.0 metre wide driveway must be increased in width to 3.6 metres. Stormwater Drainage 8. The stormwater drainage proposal is inadequate. 9. There is localised ponding/flooding in Hyde Park Road adjacent to the subject site during excessive storm events. Therefore the top water level must be identified and details submitted. If the top water level is higher than the proposed boundary line level (80mm higher than adjacent kerb), then a crest to the basement access ramp shall be provided. In this regard: a. the proposed crest shall be within the property boundary; b. the proposed crest shall form part of the ramp; and c. ramp grades shall comply with Australian Standard AS2890.1-204. SEPP 65 10. The proposed development is not consistent with the design quality principles of State Environmental Planning Policy 65 - Design Quality of Residential Flat Development. The public interest 11. Granting development consent for the proposed development would not be in the public interest for the reasons set out above and having regard to the number of submissions received by Council against the proposed development. 12. Issues raised by objectors.