Land and Environment Court of New South Wales CITATION : Gavin v Ashfield City Council [2007] NSWLEC 46 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Jason Gavin PARTIES : RESPONDENT Ashfield City Council FILE NUMBER(S) : 10634 of 2006 CORAM: Moore C KEY ISSUES: Development Application :- CASES CITED: Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 DATES OF HEARING: 23 January 2007 EX TEMPORE JUDGMENT DATE : 23 February 2007 APPLICANT Mr P Clay, barrister INSTRUCTED BY Yardy Legal LEGAL REPRESENTATIVES: RESPONDENT Mr A Simpson, solicitor Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 23 January 2007 10634 of 2006 Jason Gavin v Ashfield City Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 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/ JUDGMENT 1 The issues in this appeal have substantially been resolved during the course of the view and of the hearing. The results of those resolutions will be to incorporate in the design of the refurbishment of the hotel premises of a lift between the ground floor and the proposed first floor, which will deal with the outstanding issues of accessibility. 2 The redesign of the loading arrangements to incorporate a formalised loading space at the rear of the premises, subject to refinement of the plans for such space between Mr Ogle, on behalf of the council, and Mr Masson, on behalf of the applicant, will also resolve that issue. 3 Issues relating to the use of the right of way for the purpose of access to the premises can also be resolved by conditional restrictions, at both construction and operational stages, on the sizes of vehicles seeking to access the premises. 4 The result of such limitation on vehicle sizes and the rearrangement of the loading space at the rear of the premises, means that the restriction contained in the right of way granting access to the premises, that prohibits the standing or parking of vehicles on that right of way, will not be required to be breached for either construction or operational purposes. 5 There is agreement between the parties that further work requires to be undertaken on the plan of management, and subject to that being undertaken and satisfaction of directions which I will give at the conclusion of this decision, an appropriate course of action consistent with the decision of the Court of Appeal in Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248, will arise with respect to that plan of management. 6 With respect to the exterior design of the building, a number of matters arose out of the joint acoustic evidence, and they have been resolved by agreed design revisions. 7 Remaining to be dealt with were a number of matters arising out of the evidence of Mr Dickson, giving urban design evidence on behalf of the council, and Mr Staas, giving urban design evidence on behalf of the applicant. 8 During the course of their concurrent evidence, a number of those matters have been resolved. The resolved matters relate to the treatment of the rear courtyard wall; the question of the balustrading to the two open balconies facing into the civic mall; and the question of the deletion of one of the planter boxes (that is the one to the north in the vicinity of the fire exit). 9 The remaining matter that requires my determination is, in effect, whether I am prepared to accept Mr Kelly's [the project's architect] design proposal for the rear central area on the eastern side of the building (this being a glazed treatment with a recessed planter box at its southern end; looking through to a water wall feature, which incorporates a variety of elements – all of which is designed to attract the eye to it from the external open space), or whether I accept Mr Dickson's view that there should, in effect, be a closing off of the interior of the building from the public space. 10 It was obvious, during the course of the view this morning, that, at the present time: o the façade of the civic centre immediately across the civic square to the east is an unrelieved multi-storied glazed presentation to the civic square; and o the treatment to the south at the entrance to the Ashfield mall, being adorned, as it is, with a number of eye-catching but not necessarily aesthetically appealing advertising signs; coupled with o the traffic flow along the Hume highway on the northern side of the square, do not, in combination or individually, provide any degree of significantly aesthetic appealing elements to the space comprising the civic square. 11 I am satisfied that the proposal put by Mr Dickson would have the virtue of consistency. 12 I am not sure that providing consistency under these circumstances, represents a positive urban design outcome. 13 The consequence of adopting the design proposed by Mr Kelly is that, during the hours of evening operation of the premises, there will be light spilled from those areas into the civic square. There will be some sense of activity behind the glass wall, even if only from the pedestrians using the stairs to access the upper levels, coupled with the elements of movement and light associated with the water feature. 14 I am satisfied that, on balance, the objective in the council's strategy of cohesive integration (which would arise if Mr Dickson's proposition were to be adopted), is a less than satisfactory resolution, compared to adding some life and interest to a space that could otherwise be described as undistinguished and bordering on the drab. 15 I therefore consider that it would be appropriate to approve those elements of the design as proposed by Mr Kelly. 16 I therefore give the following directions: 1. the applicant is to file and serve revised plans by the close of business on 2 February 2007; 2. the applicant is to file and serve a revised plan of management, by the close of business on Wednesday, 31 January 2007; 3. the applicant is to respond to the council by close of business on the 29th, concerning the proposed conditions. 4. the respondent is to file and serve revised, settled conditions by 31 January 2007. 17 On the assumption that it is available, I will send you down to the registry to get the matter set down for mention before me on the morning of Tuesday 6 February 2007 at 9 o'clock. 18 In the event that nothing arises between the parties with respect to directions 1, 2, 3 and 4, and nothing arises out of the plan of management that causes me to require the attendance of the parties, I will vacate the mention and make orders in chambers. Is there anything further? SIMPSON: Not in relation to the directions, Commissioner in relation to your judgment, you made reference to the balustrades on the eastern façade. I had understood it would also be the southern façade upper balustrade, and Mr Staas was ambivalent, but then said probably it would be better. I don't know. I think Mr Dickson was intending that it be-- COMMISSIONER: I dealt with it on the assumption that I did not need to deal with it for the following reason, that there is now to be a wall and slats to the height of the balustrade, and therefore there is no imperative, it would seem to me, for reasons of modesty, to move to masonry and that some form of glazed balustrade would be appropriate now. I will leave it to the good sense of Mr Kelly as to whether he wants to make that lightly smoked for reasons of a small degree of modesty protection. Tim Moore Commissioner of the Court 21/02/2007 - Correction to representation of parties - Paragraph(s) Cover sheet 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.