Land and Environment Court of New South Wales CITATION : S & R Properties Pty Limited v Ashfield Municipal Council [2007] NSWLEC 72 APPLICANT: PARTIES : S & R Properties Pty Limited RESPONDENT: Ashfield Municipal Council FILE NUMBER(S) : 10061 of 2003 CORAM: Watts C at 1 Development Application :- Mixed use retail/residential development application KEY ISSUES: Stormwater proposal Materials and finishes; and Damage deposit Ashfield Local Environmental Plan 1985, (ALEP) Draft Ashfield Local Environmental Plan 1985, Amendment No 100, (draft ALEP100) LEGISLATION CITED: Draft Ashfield Local Environmental Plan 1985, Amendment No 106, (draft ALEP106) Summer Hill Urban Village Centre Development Control Plan, (DCP) Access, Adaptability and Mobility Development Control Plan, (AMDCP) State Environmental Planning Policy No 65 - Design Quality of residential Flat Development, (SEPP65) CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 DATES OF HEARING: 15/02/2007 EX TEMPORE JUDGMENT DATE : 15 February 2007 APPLICANT: Mr R Wilshire, solicitor with Ms F A Millner, solicitor SOLICITORS LEGAL REPRESENTATIVES: Herbert Geer & Rundle RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 15 February 2007 10061 of 2003 (s96AA) - S & R Properties Pty Limited v Ashfield Municipal Council JUDGMENT 1 Under s 96AA(l) of the Environmental Planning and Assessment Act 1979 (as amended) the applicant seeks the consent of the Court to modify Development Consent No 10.2002.434 for the subdivision of the allotments, the demolition of the supermarket building, the construction of a mixed-use development consisting of a supermarket, seven (7) retail shops and thirty-four (34) units at Lot 1, DP 1018057, known Nos 1-11 Hardie Avenue and alterations to the dwelling house at Lot C, DP 347563, being No 123A Smith Street. 2 This appeal is under s 96AA(3) of the Environmental Planning and Assessment Act 1979, as Ashfield Municipal Council (the council) seeks to impose a condition that the applicant considers to be unreasonable. 3 I have concluded that as the substantive planning issues in dispute have been resolved I grant consent to the modification application subject to conditions. The land 4 The land is situated on the southern side of the western railway line within the Summer Hill shopping centre about 180m from the Summer Hill railway station and has good access to public transport. 5 The land is 'L' shaped with a frontage to Hardie Avenue of 53.64m, to Smith Street of 30.5m. The 93.1m western boundary of the land adjoins 'Darrell Jackson Gardens' and the northern boundary is about 61m, giving an area of 4,469m2. Relevant planning controls Ashfield Local Environmental Plan 1985, (ALEP) 6 Under the provisions of the ALEP the land is zoned Zone No 3(a) (General Business), and the proposal, defined as a 'mixed development', is permissible with consent. The relevant aims and objectives are to: a. promote the orderly and economic development of the local government area of Ashfield in a manner consistent with the need to protect the environment; and b. retain and enhance the identity of the Ashfield area derived from its role as an early residential suburb with local service industries and retail centres. 7 The land is within the proposed Summer Hill Central Conservation Area and an assessment of the "…heritage significance of the... heritage conservation area" must be taken into consideration under cl 32(3) of the ALEP. The "extent to which the carrying out of the proposed development would affect the heritage significance of ... heritage conservation area' must also be considered under this clause. 8 No 123A Smith Street enjoys existing use rights as a dwelling house. Draft Ashfield Local Environmental Plan 1985, Amendment No 100, (draft ALEP100) 9 The aims of the draft ALEP100 are to protect the predominately commercial character of the Summer Hill Urban Village and its low-rise scale of development. This amendment is yet to be formally gazetted. Draft Ashfield Local Environmental Plan 1985, Amendment No 106, (draft ALEP106) 10 The draft ALEP106 aims to ensure that any development respects the heritage significance and character of Summer Hill. Summer Hill Urban Village Centre Development Control Plan, (DCP) 11 Parts 8, 9 and 10 of the DCP apply to this development, in particular in the relation to the Stage 2 building fronting Hardie Avenue. Access, Adaptability and Mobility Development Control Plan, (AMDCP) 12 The AMDCP applies to the mixed-use development at Nos 1-11 Hardie Avenue, and cl 5.3.1 requires that the Stage 2 retail shop shall be accessible. State Environmental Planning Policy No 65 - Design Quality of residential Flat Development, (SEPP65) 13 SEPP65 also applies to the land and the development. The proposed modification and its history 14 The proposed modification involves the staging of the development into three (3) parts: · Stage 1 involves alterations to the existing dwelling house at No 123A Smith Street; · Stage 2 relates to the construction of a retail building and underground parking area on the vacant land at Nos 1-11 Hardie Avenue. The underground car park, consisting of six (6) spaces and a driveway, is to form part of the future development as detailed in the later stage. The ground floor building will also form part of the future development although its shopfront is to be altered in the later stage; · Stage 3 involves the construction of the remainder of the development including the demolition of the existing supermarket, the completion of the multi-level car park, the construction of the new supermarket, seven retail shops and thirty-four units. 15 The Court approved DA: 10.2002.434.1 on 19 March 2004. This consent was for the subdivision of land, demolition of the supermarket, construction of a mixed-use development consisting of a supermarket, seven retail shops, a single level of basement car parking and thirty-six (36) units at Nos 1-11 Hardie Avenue as well as alterations to the dwelling house at No 123A Smith Street. 16 The council approved on 13 December 2005 a modified development with DA: 10.2002.434.2. This modified consent, reduced the number of units to thirty-four, provided additional underground car-parking levels and altered the appearance of the mixed-use development. This approval also differed from the original consent in that the dwelling house at 123A Smith Street would be retained in full. 17 On 13 December 2005 the council granted a separate consent (DA: 10.2005.148.1) for the subdivision of the land and the subdivision matches that approved with DA: 10.2002.434. Notification 18 The modification application was notified from 30 November 2006 until 2 January 2007 to nearby owners and occupants and the council received four objections from: · Ms L Fardell and Mr P Meijer residents of No 117 Smith Street, Summer Hill; · Ms G Martinovich, resident of No 1 Short Street, Summer Hill; · Mr D and Mrs T Grujovic, residents of No 80 Smith Street, Summer Hill; and · Ms G Newling, of the Community Centre Management Committee, No 131 Smith Street, Summer Hill. 19 Concerns included the following in italics with the council's response: · The development is not in keeping with the unique village atmosphere of Summer Hill. The form and character of the development conflicts with the form and character of original buildings within the town centre: The appearance of the completed development is unchanged from that which was approved with DA: 10.2002.434.2 and is similar to the original Court consent. · The proposal will result in additional traffic congestion: The number of units and car parking spaces remains unchanged from that which was previously approved. · Hardie Avenue and Lackey Street should become one-way streets to ease traffic congestion through the town centre: This issue was considered in the assessment of DA: 10.2002.434.2. In this report Council's Engineering Department considered a number of traffic options but felt it was better to assess traffic conditions after the development was completed, as opposed to modifying travel directions as a part of that application. · The development should incorporate ecologically sensitive design: Past approvals were issued prior to the implementation of BASIX. It should be noted, however, that the development is to incorporate energy efficient insulation and a water efficient irrigation system. · Additional trees should be planted for the development: A landscaping plan has been prepared and approved for the development. The footpath immediately in front of the property will be re-constructed in accordance with the requirements of Council's Engineering Department. This involves the installation of new pavers to match the footpath treatment in Lackey Street. No trees were approved on the Hardie Avenue footpath as an awning covers this area. · The height and size of the development negatively impacts on Darrell Jackson Reserve: The bulk and form of the development matches that which has been previously approved. · The arcade is the only entrance to the supermarket and provides access to the residential component of the development. The arcade also leads to a playground in Darrell Jackson Gardens: This layout generally matches past approvals. Access to the residential units is also provided from Smith Street. · The cafe may negatively impact on the children's playground in Darrell Jackson Gardens due to cigarette smoke: No approvals have been granted for the use of the future retail shops. The use of the shops may be considered with the submission of development applications. · The purpose of Stage 1 and the works to the dwelling house at 123A Smith Street is unclear. The property at No 123A Smith Street will be accessed during construction but will also be burdened by a pathway and an on-site detention system. These facilities are to benefit and service the development at Nos 1-11 Hardie Avenue. The future maintenance of these areas will be the responsibility of the occupiers of Nos 1-11 Hardie Avenue, not the occupiers of No 123A Smith Street. · The Stage 2 retail building fronting Hardie Avenue detracts from the streetscape: It is agreed that limited information has been provided on this Stage 2 building. Further details on the appearance of this building have been requested. The council's decision 20 By notice dated 13 February 2007 the council resolved: That Council raise no objection to the s 96AA(1) modification of development consent No 10.2002.434 for the subdivision of the allotments, the demolition of the supermarket building, the construction of a mixed use development consisting of a supermarket, seven (7) retail shops and thirty-four (34) units on Lot 1, DP 1018057 and known as Nos 1- 11 Hardie Avenue and alterations to the dwelling house on Lot C, DP 347563 and known as No 123A Smith Street, provided the following matters are addressed: · stormwater disposal details must be provided for Stages 1 and 2 of the proposed development; · details of the materials, finishes and colours of the Stage 2 retail building must be provided to ensure this temporary building does not detract from the character and appearance of the area; · maintenance of the on-site detention system for the mixed-use development shall be the responsibility of [the owners of] Nos 1-11 Hardie Avenue, not [the owners of] No 123A Smith Street; · the plans should be modified so that they are consistent with Development Consent No 10.2002.434.2. · in the event that the Ashfield Council narrows the carriageway of Hardie Avenue, the applicant shall reconstruct the footpath to the full width of the Hardie Avenue frontage of the subject land to the new kerb alignment. In addition, the pavers used in the footpath reconstruction shall match those used for footpath paving in Lackey Street, Summer Hill. The issues 21 On 5 February 2007 the council filed a statement of issues. 1. Stormwater: The proposal does not make adequate provision for stormwater management and does not comply with Council's stormwater management code. Particulars: Stormwater Management Plan demonstrating how stormwater will be dealt with at stages 1 and 2 of the development has not been submitted. 2. Materials and finishes: The building proposed for stage 2 of the development has the potential to detract from the appearance of the town centre and the proposed Summer Hill Conservation Area. Particulars: Materials and finishes have not been provided to Council for assessment for the buildings associated with stage 2 of the development. 3. Damage deposits: Council do not consent to the proposed amendment to condition 5. Council require the full damage deposit to be paid up-front prior to the issue of the construction certificate states 1, 2 and 3 of the proposal, to ensure the deposit is sufficient to cover any repairs or repairs for the adjoining footpath, road shoulder, road pavement, kerbing and guttering. 4. Issues raised by objectors: The proposed elevation of the stage 2 shop is unattractive. Given that there is no time frame for the implementation of stage 3, the design of stage 2 should be improved. The hearing 22 The appeal was filed with the Court on 31 October 2006. Before the hearing the parties negotiated most of the issues in dispute. Dot point 5 in para 20 if a condition remained in dispute. 23 Mr Jackson submitted, the resolution of the council of 13 February 2007 embraces the council officer's recommendations and takes into account the evidence of Mr D Brindle, town planner, in respect of the substantive issues. He submitted that the council is not opposed to the s 96-modification application in terms of the resolution except for the one matter for the Court to determine being that 'condition' in dot point 5 in para 20 above. 24 Mr Wilshire, for the applicant, submitted the proposed 'condition', lacks clarity and if the Court were to impose it, "…the applicant wonders what it is to do". He submitted, it bears no relationship to the current application and the proposed development fits within the existing road network. The changes Hardie Avenue referred to in that condition do not arise from any part of the present modification application and are beyond power. Also the condition lacks clarity and a time for completion. 25 I accept the submissions of Mr Wilshire and accept that the proposed 'condition' relating to the provision of a footpath in the event that Ashfield Council narrows the carriageway of Hardie Avenue, is unreasonable in the Wednesbury sense and lacks certainty. As a result I would not impose it. [Note: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223] The evidence and findings 26 For the above reasons, the appeal is upheld without the final condition sought by the council. Conditions 27 The amended conditions are those in Exhibit 26. Orders 28 My orders are: 1. The appeal under s 96AA(3) of the Environmental Planning and Assessment Act 1979 is upheld. 2. The modification application filed 31 October 2006 to amend the development consent granted by the Court on 19 March 2004 and subsequently amended by the respondent on 13 December 2005 be approved subject to Conditions A1 to H7 in Annexure A (Which area a consolidated set of conditions). 3. The exhibits are retained. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.