Katris and Associates Pty Ltd v Hurstville City Council [2010] NSWLEC 1132

Land and Environment Court of New South Wales

CITATION : Katris and Associates Pty Ltd v Hurstville City Council [2010] NSWLEC 1132

APPLICANT Katris and Associates Pty Ltd PARTIES : RESPONDENT Hurstville City Council

FILE NUMBER(S) : 10852 of 2009

CORAM: Tuor C

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- demolish existing buildings, including part of a heritage item, construct seven storey mixed use building with basement parking

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan No. 2 State Environmental Planning Policy No 65

DATES OF HEARING: 21 April 2010

EX TEMPORE JUDGMENT DATE : 21 April 2010

APPLICANT Mr G McKee, solicitor of McKees Legal Solutions

LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

21 April 2010

10852 of 2009 Katris and Associate Pty Ltd v Hurstville City Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an appeal against the refusal by Hurstville City Council (council) of a development application to demolish existing buildings, excluding the front faced of a heritage item, and to construct seven storey mixed use building with basement parking at 127 - 141 Forest Road, Hurstville (the site). 2 The issues between the parties have been resolved through amended plans and they are seeking consent orders from the Court. There were no objectors to the proposal. 3 The site, its locality, the history of the application and the planning controls are in the Amended Statement of Facts and Contentions filed by the council on 22 March 2010. 4 The site is zoned 3(b) City Centre Business under Hurstville Local Environmental Plan 1994 (LEP 1994). The development is permissible with consent. Part of the site (127-137 Forest Road) is identified as a heritage item under LEP 1994, which includes heritage provisions that are relevant to the development application (cl 27, cl 28 and cl 33). 5 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development is also relevant. 6 Hurstville Development Control Plan No. 2 (DCP) applies to all land within the 3(b) City Centre Business zone. Section 4.1 of the DCP provides site specific envelope and floor space ratio (FSR) controls, which were prepared after extensive study and community consultation. 7 Under the DCP, the site is part of block 25, it includes all of site 25A and part of site 25B. Notably the design principles for future development for these sites include: · address Forest Road with major buildings of six storeys and Treacy Street with four storeys. · Retain the existing 1940s facade and set the new building back two metres on the site between 127 to 137. · The small subdivision pattern is to be reflected in the design of the lower floors of the building. · Buildings are to follow the street alignment. 8 The original development application proposed the demolition of the façade of the heritage item. This application was recommended for approval by council officers, but was refused by council and subsequently formed the basis of the appeal. 9 Mr Graham Brooks, the parties' single heritage expert, assessed the original application and did not support the demolition of the whole building. The applicant was subsequently granted leave to amend the application to retain the facade and set back the new building, the two metres required by the DCP. This is the application now before the Court. 10 The applicant was also granted leave to appoint Mr R Staas as a heritage expert. Mr Brooks and Mr Staas prepared a joint report. The experts agreed that the most significant architectural feature of the heritage item is the art deco style facade and they did not object to the demolition of the other parts of the building. They stated that: