Land and Environment Court of New South Wales CITATION : 215 - 231 Kinsgrove Road Pty Ltd v Hurstville City Council [2009] NSWLEC 1236 APPLICANT 215 - 231 Kinsgrove Road Pty Ltd PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10076 of 2009 CORAM: Tuor C DEVELOPMENT APPLICATION :- Mixed use development KEY ISSUES: SEPP 1 objection to floor space ratio control, contamination conditions Hurstville Local Environmental Plan 1994 Land and Environment Court Act 1979 LEGISLATION CITED: Hurstville Development Control Plan No. 1 State Environmental Planning Policy No. 1 - Development Standards State Environmental Planning Policy No. 55 DATES OF HEARING: 14 May 2009, 3 June 2009, 16 June 2009 EX TEMPORE JUDGMENT DATE : 16 June 2009 APPLICANT Mr P Clay, barrister SOLICITOR LEGAL REPRESENTATIVES: Breene & Breene RESPONDENT Mr P Rigg, solicitor of Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 16 June 2009 10076 of 2009 215-231 Kingsgrove Road Pty Limited v Hurstville City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hurstville City Council (council) of a development application under the Environmental Planning and Assessment Act 1979 (the Act) to demolish the existing buildings and construct a five storey mixed use development at 215-231 Kingsgrove Road, Hurstville (the site). 2 The issues between the parties are largely resolved. The site and its locality 3 The site is located on the corner of Kingsgrove Road and Mashman Avenue. It has an area of 1,716 sqm with a primary frontage to Kingsgrove Road of 46.33m, a secondary frontage to Mashman Avenue of 36.57m and a boundary to the East Hills railway corridor of 41.36m. 4 The existing development includes a two storey mixed use retail and residential development with parking at the rear accessed off Mashman Avenue. 5 Kingsgrove Road and the southern side of Mashman Avenue, are predominantly strip shopping characterised by two storey retail/residential or commercial development. The Mashman pottery land adjoins the site to the west and is currently developed with single storey industrial buildings. This land has recently been re-zoned to permit four storey development. Planning controls 6 The site is zoned 3C Business Centre Zone under Hurstville Local Environmental Plan 1994 (LEP). The development is permissible with consent. Hurstville Development Control Plan No. 1 (DCP) is also relevant. Evidence 7 The hearing commenced on site on 12 May 2009. The Court heard evidence from an adjoining owner whose main concern was the impact of the traffic servicing the development from Mashman Avenue, which he considered to be too narrow for the traffic likely to be generated by the development. 8 Mr C Hallam, traffic consultant, provided a Statement of Evidence on behalf of the applicant, which addressed traffic issues to the satisfaction of council. 9 Initially council raised a number of contentions, which primarily related to the height and floor space ratio (FSR) of a proposed six storey building. 10 The applicant agreed to prepare amended plans in response to joint conferencing between the planners Mr L Fletcher, for the council and Mr R Power, for the applicant and the urban designers Ms B Garlic and Professor G P Webber, for the council and Mr K Jones, for the applicant. 11 The hearing resumed on 3 June 2009. The applicant was granted leave to rely on amended plans subject to an order as to costs under s 97B of the Act. 12 The principal change in the amended plans is the deletion of a storey to better respond to a four storey future development on the Mashman site. The proposal now comprises a part five storey building with basement supermarket, ground floor retail and associated parking and loading areas, first and second floor parking and third and part fourth floor residential. 13 Further amended contentions identified the remaining outstanding issues as being: · increased active frontage along the ground level of Mashman Avenue, · separate lobby and lift access for residential and retail customers · disabled access to the supermarket via the primary entry. 14 A report by Mr M Rolfe, access consultant for the applicant, and a further joint conference of the experts resulted in an amendment to the ground floor, which satisfactorily addressed these concerns. 15 The proposal exceeds the FSR permissible under cl 13 of the LEP. The applicant has submitted and objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1). The SEPP 1 objection concludes that compliance with the FSR standard is unreasonable and unnecessary in the circumstances of the case. The experts did not raise any issues with the bulk, scale or intensity of the proposal and its non compliance with the FSR control. I accept the evidence of the experts. 16 On 16 June 2009 the hearing reconvened to deal with a disagreement that had arisen over conditions in relation to contamination. Council considered it appropriate to satisfy the requirements of cl 7 of State Environmental Planning Policy No. 55 (SEPP 55) through the imposition of a deferred commencement condition. Whereas the applicant considered that cl 7 could be addressed through the imposition of conditions rather than deferred commencement consent. The applicant was concerned that to carry out further assessment of contamination would require demolition of the existing building and it was unreasonable that this should occur prior to approval, given the existing retail/residential use of the site and the findings of the preliminary assessment of contamination that the site can be made suitable for the proposed development. 17 The Court heard evidence from Mr Kingswell, contamination consultant for the applicant, who identified a process for undertaking further investigation of the contamination and validation of the site through conditions of approval. I accept Mr Kingswell's evidence that these conditions may appropriately be imposed. 18 The other issues between the parties are resolved through the amended plans, conditions and expert evidence. I accept the opinion of the experts that the SEPP 1 objection is well founded and that the proposed development is of appropriate height, bulk and scale for its corner location in Kingsgrove. 19 The appeal may therefore be upheld and consent granted. Orders 20 The orders of the Court are: 1. Leave is granted to the Applicant to rely on the plans set out in the attached Schedule. 2. Applicant to pay the respondent's costs pursuant to Section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $15,000.00 inclusive of GST. 3. The appeal is upheld. 4. The development application number DA 2008/0588 to demolish the existing building at 215-231 Kingsgrove Road, Kingsgrove, NSW and erect a mixed use development is approved subject to the conditions in Annexure "A". 5. The exhibits, except exhibits 1, 6, 10 and G are returned. ___________________ Annelise Tuor Commissioner of the Court ajl DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.