Land and Environment Court of New South Wales CITATION : Sentamur Pty Limited v Hurstville City Council [2010] NSWLEC 1144 APPLICANT Sentamur Pty Limited PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10884 of 2009 CORAM: Tuor C KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- demolition of existing workshop buildings, amalgamation of two lots into one, additions to an existing self storage complex and construction of a new industrial unit Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Hurstville Development Control Plan No 1 DATES OF HEARING: 13 May 2010 EX TEMPORE JUDGMENT DATE : 13 May 2010 APPLICANT Mr Farmakides, solicitor of JSM Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms Hudson, solicitor of Marsdens Law Group JUDGMENT: OF NEW SOUTH WALES Tuor C 13 May 2010 10884 of 2009 Sentamur Pty Limited v Hurstville City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hurstville City Council (council) of a development application for the demolition of existing workshop buildings, amalgamation of Lot 1 and Lot 101 into one new lot, additions to an existing self storage complex and construction of a new industrial unit at 61-65 and 67-69 Forest Road, Hurstville (the site). 2 The contentions between the parties have been resolved and they are seeking consent orders from the Court. There were no objectors to the application. 3 The site, its locality, the history of the application and the planning controls are set out in the Statement of Facts and Contentions. 4 The application was recommended for approval, however, council refused the application at its meeting on 1 April 2009. The contentions raised by council reflect the reasons for refusal. They state: 1. The proposed development is unacceptable and must be refused because the proposed floor space ratio does not comply with cl 13.3 of the Hurstville Local Environmental Plan 1994 (HELP 1994) and cl 5.3.22 of Hurstville Development Control Plan No 1 (DCP 1). 2. The proposed development must be refused as it does not comply with cl 5.3.3 of DCP 1 in terms of front setback and landscaping within the front setback. 5 The applicant has submitted a SEPP 1 objection to the floor space ratio (fsr) standard. This states that the underlying purpose of the standard is to control the scale of industrial buildings and compliance with the standard is unreasonable and unnecessary in the circumstances of the case for reasons which include: ….Firstly, this is supported by the fact that the inclusion or otherwise of the floor areas deemed temporary has absolutely no impact on the bulk and scale of the proposed development. The temporary floors are contained wholly within the building envelope and do not give rise to a proportional increase in the bulk and scale of the development. Secondly, if ever the self storage use would cease then the temporary floor areas could be easily removed and the building could revert back to a typical industrial use consistent with the site's zoning. 6 The council assessment report concluded that the proposal met the underlying objectives of the standard and that the SEPP 1 objection was well founded given that the bulk and scale of the building did not change as a result of the temporary floor space. 7 The council assessment report assessed the proposal's compliance with the front setback control. It stated that the aim of the control is to provide an area of landscaping to create a consistent streetscape in industrial areas. 8 The proposal provides built form and car parking to the front boundary however the council assessment states that it is consistent with the existing streetscape in this section of Forest Road. The proposal also provides parking which is considered to be necessary and an awning for weather protection on the street. The council assessment report concluded that the non-compliance with the setback control was acceptable. 9 I accept that the contentions raised by council have been adequately addressed in the council assessment report and that the SEPP 1 objection is well founded. The issues between the parties are resolved and the consent orders can therefore be granted. Orders 10 The Court orders by consent: 1. The appeal is upheld. 2. Development Application No 07/DA-452 for demolition of 3 workshop buildings, alterations and additions to existing industrial building, construction of new industrial unit and lot amalgamation, on the land known as Lot 1 DP 225302 and Lot 101 DP 776275, (61-65 and 67-69) Forest Road, Hurstville is approved subject to the conditions in Annexure "A". 3. Exhibit 1 may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr 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.