Land and Environment Court of New South Wales CITATION : Hill Top Planners Pty Ltd v Maitland City Council [2009] NSWLEC 1086 APPLICANT Hill Top Planners Pty Ltd PARTIES : RESPONDENT Maitland City Council FILE NUMBER(S) : 11261 of 2008 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Building warehouse classification, flooding, separation to dwelling. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Maitland Local Environment Plan 1993 Hunter Region Environmental Plan 1989 DATES OF HEARING: 17/03/2009 EX TEMPORE JUDGMENT DATE : 17 March 2009 APPLICANT Mr R. Bennett, Agent LEGAL REPRESENTATIVES: RESPONDENT Mr S. Williams, solicitor of Thompson Norrie Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 17 March 2009 11261 of 2008 Hill Top Planners Pty Ltd V Maitland City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for the construction of a building at 42 Smith Street, Maitland to be used as a personal art studio and the storage of personal effects and for garaging of motor vehicles. The site is to be located in the residential area that is subject to flooding. 2 The reasons for refusing the application included it not representing orderly development of the land, incompatibility of the use with the predominant residential character, inadequate separation from other dwellings and public interest considerations. 3 However, on review, the parties have agreed to consent orders. The site 4 No. 42 Smith Street is described as Lot 1 in DP 194229. It has an area of approximately 900 sq m and is located at the intersection of Smith Street and Rose Street. 5 It is approximately 500m from the CBD and is in the established portion of Maitland and lies below the 1% flood level. Existing development consists of a mix of older dwellings with some small scale commercial/light industrial buildings interspersing the residential component. The proposal 6 The new building is classified as a warehouse to store personal effects, vehicles and use as a personal art gallery. It is be of 2-storey configuration with the art studio and garage in the lower-level and an art studio/store in the upper level. The design is such that the upper level construction is largely incorporated within the roof space. External materials used for the building are bagged masonry in 'beige' finish to the lower-level, with weatherboards and terracotta finish to the upper level and corrugated zincalume roofing. Planning controls 7 (i) Hunter Region Environmental Plan 1989; and its aims and objectives include: (1) The aims of this plan are: (a) to promote the balanced development of the region, the improvement of its urban and rural environments and the orderly and economic development and optimum use of its land and other resources, consistent with conservation of natural and man made features and so as to meet the needs and aspirations of the community, … (ii) Maitland Local Environment Plan 1993 (LEP) ; Under which the subject land is zoned is zoned 2(b) Flood Liable Residential. Warehouse development is permitted in this zone. The LEP contains general objectives and the following specific objectives for the zone. a) To minimise the public and private costs of flood damage, and the risks to life from flooding, by encouraging the development of non-residential uses in the flood-prone residential areas and by ensuring that any new development incorporates flood precaution measures… (iii) Central Maitland - Maitland City Wide DCP ; where the aims, objectives and strategies relevantly include: a) to minimise the public and private costs of flood damage and the risk to life of floods by encouraging construction and development which is compatible with the flood risks of the area… 8 Also relevant are the following controls: .1 Objectives of Development in the 2(b) Flood Liable Residential Zone. "(1 ) Development proposed on land within zone 2(b) Flood Liable Residential shall be in accordance with the following objectives: (a) To ensure that the proposed development does not increase the stock of residential accommodation on flood prone land. (b) That the proposed development reinforces the commercial, tourism, recreation, historical and entertainment function of Central Maitland. (c) The development is designed and capable of being operated in a manner which minimises the risk of damage in the event of flood. (2) In order to achieve the above objectives the Council shall: (a) give preference to commercial development on land which adjoins land within zone 3(a) or 3(b); (b) encourage those developments associated with trotting to be located on land within close proximity to Maitland Showground; (c) encourage agricultural uses or purposes associated with agriculture." . 2 Non-Residential Development "Maitland Local Environmental Plan 1993 seeks to encourage non-residential development of flood prone land. In addition to meeting the general objectives for development of land in the 2(b) zone, development for non-residential purposes shall be such that; a) The development shall not result in a general loss of amenity to the surrounding area. b) The development will have no more than a minor impact on the level and velocity of flood waters in the locality: and c) The development will be constructed so as to comply with the Flood Proofing Guidelines as set out in part 8; Where non-residential development is proposed in the 2(b) Flood Liable Residential zone, the following special provisions apply: a) Non-residential development is to be set back a minimum 40 metres from any existing residential dwelling that is being used for residential purposes. b) Any non-residential development must be compatible in scale with other buildings in the immediate streetscape and/or with adjoining buildings on neighbouring properties. c) New buildings should enhance and make a positive contribution to the streetscape. Buildings should address and front the street by incorporating main entries and windows in the front facade. The development should use building, window and door proportions and external materials and colours that resemble those predominating in the adjacent streetscape . d ) On-site car parking or garages should not be located on street frontages or dominate the streetscape. e) Developments are to be designed, constructed and operated to minimise the potential for offensive noise generation. Council may require the provision of an acoustic study to establish noise levels and to provide a mitigation strategy." The evidence 9 The main evidence in this matter includes the detailed s 79C assessment by council's town planner officer Mr I. Cunningham. From his initial assessment, he concluded the application merited conditional consent. However, there were a number of objections lodged and he dealt with these in his assessment. 10 One of the main concerns is whether the proposed building should be allowed on this site. Because of its location within the flood storage area, new residential buildings are not permitted. However, the parties agree that this building is classified as a warehouse, which is permitted. 11 Accordingly, it appears to me that the controls do not seek to sterilise flood liable land. In fact, one of the zone objectives of the (2b) Flood Liable Residential land is to encourage; .. the development of non-residential uses in the flood-prone areas by ensuring that any new development incorporates flood precaution measures. 12 Consequently in his assessment, Mr Cunningham says that the proposed design is compatible with the existing built form- surrounding the subject site and also that: The design incorporates a roof pitch of 25 degrees which is consistent with the immediately adjoining buildings, and has a mix of external treatments consisting of bagged masonry in a beige painted finish, upper level weatherboards finished in terra cotta colour, and zincalume roofing. When compared to the surrounding dwellings, the external treatment and design of the proposed building demonstrates compatibility with existing built form, together with appropriate bulk and scale for the site. The proposal incorporates landscaping to the property boundaries to the south and will assist in the overall interface of the proposed development with the existing streetscape. 13 Other important concerns are those in section 4 of the DCP in respect of 2(b) non-residential development as follows: `Where non-residential development is proposed in the 2(b) Flood Liable Residential zone, the following special provisions apply; a) Non-residential development is to be set back a minimum of 40 metres from any existing residential dwelling that is being used for residential purposes b) Any non-residential development must be compatible in scale with other buildings in the immediate streetscape and/or with adjoining buildings on neighbouring properties. c) New buildings should enhance and make a positive contribution to the streetscape. Buildings should address and front the street by incorporating main entries and windows in the front facade. The development should use building, window and door proportions and external materials and colours that resemble those predominating in the adjacent streetscape. d) On-site car parking or garages should not be located on street frontages or dominate the streetscape. e) Developments are to be designed, constructed and operated to minimise the potential for offensive noise generation. Council may require the provision of an acoustic study to establish noise levels and to provide a mitigation strategy'. 14 According to Mr Sullivan: "The proposed development satisfies (b), (c), (d) and (e). With respect to (e) it is considered that the nature of the development would be such as to not give rise to noise levels with significant potential for amenity impact. The 40 metre setback requirement under (a) effectively sterilises the use of the land for any purpose. Council staff have undertaken a review of the effect of the '40 metre clause' on the potential to develop vacant lots within central Maitland's 2(b) zone. This research conservatively estimates around 200 vacant lots within central , Maitland's 2(b) flood liable zoning. A very high proportion of these lots, [around 98%1 could not be developed on the basis of failure to achieve the minimum 40 metre separation from an existing residence. The 40 metre setback requirement under the Central Maitland DCP clearly works at cross purposes with the Maitland LEP 1993 which seeks to promote compatible non­residential development alongside existing dwellings. Adherence to the 40 metre requirement leaves no room for a merits based assessment of individual applications. It is considered that, given the clear intention of the LEP objectives in regard to enabling suitable development within 2(b) flood liable residential, the requirement for a 40 metre set back contradicts the LEP objectives leaving no development opportunity for the vacant lots. It is further considered that, as a result of the onerous restriction that this specific set back requirement imposes, that Council resolve to amend the DCP 'Central Maitland' chapter by removal of this requirement. This would enable merits based assessment of non-residential uses". Conclusions 15 The determination of this matter was set for an on-site hearing, which commenced with a view and then resumed at the council offices. The objectors were notified of this process and of the party's agreement to consent orders. Whilst no objectors appeared, the written objections have been considered. 16 On the basis of the evidence presented, I am satisfied to rely on the agreement of the parties that this development is classified as a warehouse and such is permissible in this 2(b) Flood Liable Residential zone. I particularly note that condition 2 prohibits the use of the building for habitable purposes. 17 It seems to me that the building design is relatively attractive for a warehouse and its bulk and scale is compatible with the neighbourhood. Insofar as objections were raised by neighbours about loss of amenity, from my observations at the view, I do not consider they are of sufficient concern to warrant rejection of the proposal, taking into account the design and orientation of the new building. 18 I rely on the evidence of Mr Cunningham that the 40m separation distance in the DCP is an anomaly and inconsistent with the DCP. In this regard I note that there is a draft DCP endeavouring to rectify this and while it would not be given any significant weight, I am nevertheless satisfied that it is appropriate to exercise the discretion available in the DCP to waive strict compliance with this control. In this regard, I have also taken into account that council has exercised this discretion with other developments in similar circumstances. 19 In the absence of any challenge to the detailed assessment report and taking into account my observations at the view, I am satisfied the consent orders should be granted. Court orders 20 The Court orders by consent 1 The appeal is allowed. 2 Development consent is granted in respect of development application number 08-1964 in respect of the land Lot 1 DP 194229, 42 Smith Street, Maitland for art studio, garage and storage on the conditions of consent annexed hereto and marked "A". 3 The exhibits be returned except A, 1/Tab 3 and 3. NOTE: The Court notes the party's agreement on costs. ________________________ R Hussey 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.