D & C Consortium Pty Ltd v Burwood Council [2012] NSWLEC 1231

Land and Environment Court New South Wales

Medium Neutral Citation: D & C Consortium Pty Ltd v Burwood Council [2012] NSWLEC 1231 Hearing dates: 13 August 2012 Decision date: 21 August 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Consent Orders, Seniors Living, accessibility Legislation Cited: Burwood Planning Scheme Ordinance State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; Texts Cited: Seniors Living Policy: Urban Design Guideline for Infill Development Category: Principal judgment Parties: D & C Consortium Pty Limited (Applicant)

Burwood Council (Respondent) Representation: Solicitors Mr S Kondilios, Maddocks Lawyers (Applicant)

Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10401 of 2012

Judgment 1D & C Consortium sought consent from Burwood Council under Development Application No 196/2011 for the demolition of an existing dwelling house and associated outbuildings and the construction of a part 1 and part 2 storey residential building containing 5 new dwellings, over a basement carpark with 13 off-street car spaces, to be used for seniors housing in accordance with the requirements of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) at 30 Livingstone Street, Burwood. The council refused consent and D&C is appealing that decision. 2The issues between the parties have been resolved and they are seeking consent orders from the Court.

Background and the proposal 3The applicant and the council have liaised in relation to the resolution of the contentions in the case following the initial determination of the application that identified the council's contentions and case management in this Court in June. As a result, the parties have agreed to amendments, which, if incorporated into conditions of consent, are said to address those contentions. 4To assist the Court, the applicant has also prepared amended plans that reflect the agreed position. Leave has not been sought to rely on those plans. 5The application proposes the demolition of an existing single storey, brick and tile dwelling house and associated garage and the construction of an in-fill self-care housing development containing 5 units. 6The proposed building has a setback of 8 m (previously 7.5 m) from Livingstone Street at ground level and 10 m at first floor. Two bay windows and an entry portico encroach this setback by 500 mm and 1.6 m respectively at ground level. An upper level balcony extends further within the setback to within 6.3 m of the boundary however, the treatment of this element is the subject of agreed conditions, which would result in the reduction of the balcony and its roof to setbacks of 8 m and 9 m respectively. 7Side boundary setback range from 7.295 m to 10.295 m on the western side of the property and 4 m to 5 m to the east. The rear setback varies from 5.15 m to 6.95 m. 8Vehicular and pedestrian access is proposed along the western side of the site with a 3.4 m wide ramp providing access to a basement carpark. That basement contains provision for 13 car spaces, electrical meter room and individual storage rooms. A lift provides access from the basement to all other levels of the development. 9Five dwellings are proposed. Unit 1, located at the front of the building, is a two-storey dwelling comprising living/dining room, kitchen, laundry, bathroom and one bedroom on the ground floor and a further four bedrooms, study, lounge, TV room and bathroom on the first floor. 10Units 2, 3 and 4 are ground level units and each contain 3 bedrooms, bathroom, laundry, kitchen and living/dining room. 11Unit 5 is located on the upper level in the central portion of the building and is also a 3 bedroom dwelling. 12Each ground level unit would incorporate a private courtyard and a 4 m x 3 m balcony would be provided to unit 5. An area of common open space is proposed in the south-western corner of the site. The majority of trees on the site are to be retained.