Land and Environment Court New South Wales Medium Neutral Citation: Nitopi -v- Council of the City of Sydney [2012] NSWLEC 1260 Hearing dates: 8 August 2012 Decision date: 08 August 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. Development Application D/2012/181 for the demolition of all improvements and the construction of a boarding house and café at 128 Parramatta Road Camperdown is approved subject to the conditions in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1 and A. Catchwords: DEVELOPMENT APPLICATION; demolition of an existing commercial building and construction of an eight storey building containing twenty four boarding rooms and café - no matters in dispute - concerns raised by residents Legislation Cited: draft Sydney Local Environmental Plan 2011 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 South Sydney Local Environmental Plan 1998 State Environmental Planning Policy (Affordable Rental Housing) Category: Principal judgment Parties: Giuseppe Nitopi (Applicant) Council of the City of Sydney (Respondent) Representation: Dr S Berveling, barrister (Applicant) Mr P Kapetas, solicitor (Respondent) - (Applicant) City of Sydney Council (Respondent) File Number(s): 10321 of 2012 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the deemed refusal of Development Application D/2012/181 which seeks consent for the demolition of an existing commercial building and construction of an 8 storey building containing 24 boarding rooms with a maximum of 48 occupants, a ground floor café tenancy of 50 sq m and ground floor parking for two vehicles and five motorbikes at 128 Parramatta Road, Camperdown Parramatta Road (the site). 2The site is rectangular in shape with frontages to Parramatta Road to the south and Purkis Street to the north. The Parramatta Road frontage is 7.695 m in length and includes the primary pedestrian entrance. The Purkis Street frontage is 7.695 m in length and provides for vehicular access. The site is approximately 34.15 m deep and has an area of approximately 270 sq m. 3The site contains a two storey plus mezzanine commercial building that is built boundary to boundary and is currently vacant. Surrounding land uses to Parramatta Road are characterised by 6-7 storey residential development to the east and south and 2 storey commercial development to the west and south-west. The rear of the site faces Purkis Street, which is characterised by 3-4 storey residential development to the east and north-east and 1-2 storey commercial development to the west and north-west. 4The site is located in the Mixed Use 10 zone under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposed development is permissible with consent under LEP 1998 although the application is submitted under the provisions of State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH). There were no issues regarding permissibility or compliance with the requirements in SEPP ARH. 5The site is located in the B4 Mixed Use Zone under draft Sydney Local Environmental Plan 2011 (the draft LEP). The proposed development is permissible with consent under the draft LEP. No issues were raised over the imminence or certainty of the draft LEP. 6Relevantly, South Sydney Development Control Plan 1997 Urban Design (DCP 1997) imposes a maximum height of 18 m and a maximum floor space ratio (FSR) of 2:1 whereas the draft LEP proposes a maximum height of 22 m and a maximum FSR of 3:1 on the site. 7The Council originally filed a Statement of Facts and Contentions that stated the application should be refused because 1. inadequate information has been provided in relation to land contamination, acid sulphate soils, noise, gross floor area calculations and parking, 2. excessive height and FSR, 3. unacceptable amenity impacts on prospective users of the boarding house and surrounding residential development. 8The application was the subject of two conciliation conferences under s 34 of the Land and Environment Court Act 1979 and although the areas of disagreement were reduced, no agreement was ultimately reached so the conciliation conference was terminated and the matter set down for hearing on 8 August 2012. Prior to the hearing, the applicant produced amended plans and further information that, after consideration by the council, was found to address all contentions originally raised by the council. Even though no contentions remained between the parties, the council had no authority to enter into consent orders at the hearing. 9At the site inspection two residents provided oral evidence on their objections to the proposed development. Their objections can be grouped into the following main areas: 1. inadequate off-street car parking with the consequent effect of additional street parking; 2. loss of solar access to the adjoining units at 124-126 Parramatta Road, and 3. the potential use of the proposed units for uses other than those approved. 10A joint report was provided by Mr Bruce Goldsmith, the applicant's town planner, Ms Jessica Symons, the council's town planner and Mr Stephen Kennedy, the council's urban designer. The report addressed each of the original contentions and concluded that the amended plans and additional information satisfactorily addressed their concerns and that there was no barrier to the approval of the application. 11A further report was prepared by Mr Goldsmith and Mr Rodney King, the council's traffic engineer. The report stated that while traffic and parking matters were no longer in contention, the report sought to address the concerns raised by local residents regarding the amount of on site parking and the impact of the development on the local road system. Again, they agreed there was no barrier to the approval of the application. 12Having read both joint reports and with the benefit of the site inspection, I accept their conclusions. It follows that I am also satisfied that the concerns raised by the objectors do not warrant the refusal of the application however I will briefly address those matters raised by the objectors. 13On the matter of car parking, I accept the position of Mr Goldsmith and Mr King that notwithstanding the non-compliance with the council requirements for 8 car parking spaces, the on site car parking is acceptable as the site enjoys very good public transport and also the site cannot physically accommodate more parking than is provided, largely because of its narrow frontage of 7.695 m. 14The matter of solar access is addressed in the town planning joint report and there is agreement that the proposal complies with pt E cl 5.1 of DCP 1997, as the proposal provides solar access to adjoining development for at least 2 hours during the winter solstice. In my view, and with the benefit of the site inspection, a significantly greater time is likely to be provided, with any loss of solar access created by the development occurring only in the mid to late afternoon in mid winter. 15The matter of unauthorised use of the premises is a matter that can be adequately addressed through the council's compliance officers, if needed, although there was no evidence to suggest that this may occur. 16There being no reason why the development consent should not be granted, the orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2012/181 for the demolition of all improvements and the construction of a boarding house and café at 128 Parramatta Road Camperdown is approved subject to the conditions in Annexure "A". 3. The exhibits are returned with the exception of exhibits 1 and A. ____________ G T Brown Acting Senior Commissioner 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. Decision last updated: 14 September 2012