AA Tremayne (Kirribilli) Private Hotel Pty Ltd v North Sydney Council [2007] NSWLEC 435

Reported Decision : 154 LGERA 283

Land and Environment Court of New South Wales

CITATION : AA Tremayne (Kirribilli) Private Hotel Pty Ltd v North Sydney Council [2007] NSWLEC 435

APPLICANT AA Tremayne (Kirribilli) Private Hotel Pty Ltd PARTIES : RESPONDENT North Sydney Council

FILE NUMBER(S) : 10791 of 2006

CORAM: Talbot J

KEY ISSUES: Development Application :- Whether apartment building adaption - whther low-cost residential building - SEPP 1 Objection approach - merits.

CASES CITED: Hooken Corporation Pty Ltd v Hornsby Shire Council (unreported 2 June 1986) ; McClenahan and Anor v North Sydney Council (2004) 134 LGERA 379

DATE OF JUDGMENT: 17 July 2007

APPLICANT Mr Robson LEGAL REPRESENTATIVES: Mr Howard RESPONDENT Ms Irish (Barrister)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

17 July 2007

10791/2006 AA Tremayne (Kirribilli) Private Hotel Pty Limited v North Sydney Council

JUDGMENT 1 Talbot J: This is an appeal against the refusal by North Sydney Council of Development Application No. 168/05 (DA168/05), in respect of a site located on the northern side of Carabella Street, Kirribilli, opposite the intersection with Fitzroy Street. The principal street frontage is to Carabella Street, with a secondary frontage along an access handle to Elamang Avenue. The site slopes from Carabella Street in the south-west to the northern corner of the access handle resulting in an average grade of roughly 30 per cent. 2 The first building (Block A), was erected on the site in the 1930's and was used initially as a YWCA, Hostel. This building is of brick construction with a pitched roof form. Since the building was completed in 1938, several alterations and additions have been carried out. 3 There is a second building (Block B), located towards the rear of the site. This building was constructed in 1964. The two buildings contain a total of 99 rooms. 4 The site is visible from Fitzroy Street, Carabella Street, Elamang Street, Milson Park, Wrixton Park, High Street Wharf and other areas around Careening Cove. 5 In its Amended Statement of Environmental Effects, the applicant summarises the development application as follows:- · Demolition of Block B, demolition of majority of portions of Block A, and all ancillary structures on the site; · Removal of selected trees and other vegetation; · Excavation of 2 levels for car parking for a total of 22 vehicles; · Retention of portions of front elevation of Block A to Carabella Street and side elevations; · Develop the site for the purpose of a residential apartment building of 19 dwellings, comprising: 3 X 1 bedroom units; 9 X 2 bedroom units; 6 X 3 bedroom units; and 1 X 4 bedroom unit. · Provision of communal facilities including a common room, swimming pool and landscaped open space. 6 The proposed development retains part of the external walls on the south-eastern, south-western and north-western elevations of the existing Block A. There will be some modification to the partly retained walls by changes to the fenestration and articulation. The whole of Block B will be demolished. 7 The site is located in a part of Kirribilli characterised by a variety of built forms generally residential in character, ranging from apartment buildings of inconsistent sizes and heights through to small terraces and townhouses interspersed with single dwellings many of which have heritage significance. Loreto Convent School adjoins the site along its south-east boundary and part of the north-east boundary. The land is in the Residential C Zone under North Sydney Local Environmental Plan 2001 (NSLEP 2001). The south-east boundary of the Careening Cove Conservation Area, coincides with the northwest boundary of the site. The Loreto Convent School is itself an Heritage Item under NSLEP 2001. A number of single heritage items are located nearby in Carabella Street, Fitzroy Street and Elamang Avenue. Many of these items are outside the Careening Cove Conservation Area. The Kirribilli Conservation Area extends in an easterly direction at the far end of Carabella Street in the vicinity of the site. 8 It is part of the council's case that State Environmental Planning Policy No.10 – Retention of Low–Cost Rental Accommodation (SEPP 10), applies to the proposed development and therefore requires the concurrence of the Director General of Planning, pursuant to cl 7(3), prior to approval. The applicant contends that the existing buildings at 89 Carabella Street, Kirribilli, comprised "backpackers accommodation" as defined in cl 3(1) of SEPP 10 as at the relevant date namely 28 January 2000 and accordingly fall within the exception from the application of SEPP 10 in cl 6(2)(b). 9 The Director-General appeared on the second day of the hearing to advise the Court that he has no interest in making submissions or presenting evidence in respect of the issue whether SEPP 10 applies. However, in the event that the Court finds otherwise, the Director-General will seek to be joined as a party and to be heard on the issue of concurrence. Directions have been made requiring the applicant to provide the evidence upon which it relies to justify the giving of concurrence in accordance with the provisions of SEPP 10 to minimise the extent of any delay in dealing with the further issue if it arises. 10 Apart from permissibility the council has raised general issues regarding the alleged, adverse impact on streetscape, inadequate landscaping, visual amenity from outside the site, structural problems during construction, excavation and draining issues, traffic issues, compliance with aims and objectives of NSLEP, breach of standards in the council's development control plans and the adverse impact on amenity of other properties, particularly the Loreto Convent School. 11 As a consequence of the joint conferencing process the experts have been able to narrow the real issues that exist between them. The Court has the benefit of an extensive view of the site and the locality in general. Permissibility 12 Clause 10 of the NSLEP 2001 provides: - 10 Permissible development Subject to other provisions of this plan, development that is specified in the Table to this Part as permissible within a land use zone, other than exempt development, is development that may be carried out in that zone, but only with development consent. Clause 11 NSLEP 2001 provides: - 11 Prohibited development Subject to other provisions of this plan, development that is not specified in the Table to this Part as permissible in a land use zone, other than exempt development, is prohibited development in that zone and must not be carried out in that zone. 13 Under the land use table for the Residential C zone, development for the purpose of an apartment building is permissible with consent. The applicant contends that the proposed development is an apartment building. An apartment building is defined in Schedule 2 NSLEP 2001 as follows:- apartment building means a single residential building containing three or more dwellings but does not include attached dwellings.