New Fortune Development Pty Ltd v Auburn City Council [2010] NSWLEC 1290

Land and Environment Court of New South Wales

CITATION : New Fortune Development Pty Ltd v Auburn City Council [2010] NSWLEC 1290

APPLICANT New Fortune Development Pty Ltd PARTIES : RESPONDENT Auburn City Council

FILE NUMBER(S) : 10450; 10451 of 2010

CORAM: Morris C

KEY ISSUES: BUILDING CERTIFICATE - DEVELOPMENT APPLICATION :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Auburn Local Environmental Plan 2000

DATES OF HEARING: 19-20 October 2010

DATE OF JUDGMENT: 2 November 2010

APPLICANT Mr M Staunton, Barrister SOLICITOR HWL Ebsworth Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr C Gough SOLICITOR Storey & Gough Lawyers

JUDGMENT:

The Land and Environment Court OF NEW SOUTH WALES

Morris C.

2 November 2010

10450 of 2010 New Fortune Development Pty Ltd & v Auburn City Council 10451 of 2010

JUDGMENT 1 Commissioner: These are appeals against the refusal by Auburn City Council (the council) of: 1. a development application for the alterations and additions to an existing building and use of those areas for storage, restaurant and display of bulky goods.(Appeal No. 10451 of 2010). 2. a building certificate application, under s 149F of the Act for that building work carried out on the site that has been built without the consent of the council. (Appeal No. 10450 of 2010). The site 2 No. 219 Parramatta Road (the site) is located on the northern side of the road between Skarratt and Newton Streets and is an L-shaped allotment with frontage of 39.625m to Parramatta Road and 12.19m to Skarratt Street and area of 4949m2. A right-of-carriageway provides access in a westerly and northerly direction from the site to Adderley Street. A three-storey building with basement parking is currently erected on the site. In accordance with consent conditions, vehicular access for cars only is provided from Parramatta Road and egress is to Skarratt Street however, unauthorised use of the latter as a two-way ramp is occurring. All service vehicles enter the site from the right-of-way off Adderley Street to a loading area located at the northern end of the building. Parking for 86 vehicles is provided within the basement area with access for customers provided from this level by escalator or lift to the showroom areas. The ground floor level comprises six bulky goods showrooms around a central circulation area and a further four showrooms are provided on the first floor. The second level contains a café, centre manager's office, children's play area and further display areas. Background and proposal 3 The council granted development consent in 2004 for the construction of a two-storey building with basement carpark. A vaulted roof, which acts as a skylight to the building's circulation areas, extended above the main concrete deck roof and a small rooftop staff recreation and children's play was approved on this roof level. That consent was modified on a number of occasions to provide for the construction of further roofing to the upper level (now second floor) and allowed use of that area for the display of bulky goods in association with one of the tenancies of the approved building. Further approvals introduced a café and children's playground area to the second floor and additional roofed area approved for display purposes. The consent did not authorise the enclosure of the area, rather, the display areas were to be roofed and separated from the remainder of the original rooftop and a landscaped areas by a dwarf wall. 4 The council issued consent for strata subdivision into 12 lots and that plan was registered on 16 July 2007 The plan registered provides for the basement carparking area to be common property with the exception of 24 spaces at the northern end which are allocated to individual tenancies. The ground floor contains 6 lots which form individual showrooms and the rear loading dock and access thereto is designated as common property. The first floor comprises a further five lots however lots 9 and 10 are currently used as one tenancy. The rooftop area is common property with the exception of the area approved for bulky goods display and that forms part of Lot 8 and the café area, which is Lot 12.