Land and Environment Court New South Wales Medium Neutral Citation: Badar v Canterbury Council [2014] NSWLEC 1149 Hearing dates: 25 July 2014 Decision date: 28 July 2014 Jurisdiction: Class 1 Before: Tuor C Decision: By consent: 1. The appeal is upheld 2. Development Application No. Da-50/2013 for the demolition of existing structures and the construction of an infill affordable housing development in the form of a three storey residential flat building containing nine apartments with basement level parking for 12 vehicles on the land known as Lot 148 in Deposited Plan 4357, 12 Beaumont Street, Campsie is approved subject to conditions in Annexure A. 3. The exhibits, except Exhibits 2, 5, B and C, are returned. Catchwords: DEVELOPMENT APPLICATION: Consent Orders. Affordable housing residential flat building. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Canterbury Local Environmental Plan 2013 Category: Principal judgment Parties: Talal El Badar (Applicant) Canterbury City Council (Respondent) Representation: Mr P Clay, SC (Applicant) Ms J McCullan, solicitor (Respondent) Conomos Legal (Applicant) Marsdens Legal Group (Respondent) File Number(s): 10114 of 2014 Judgment 1This is an appeal against the refusal by Canterbury Council (council) of Development Application (DA-50/2013) under the Environmental Planning and Assessment Act 1979. The application proposed the construction of an in-fill affordable housing development in the form of a three storey residential flat building with basement level parking at 12 Beaumont Street, Campsie (site). 2The issues between the parties have been resolved and they are seeking consent orders from the Court. Site and locality 3The site is an irregular shaped allotment on the southern side of Beaumont Street with a frontage of 12.3m, rear boundary of 28.54m and area of 896.1sqm. The land falls by approximately 1.65m from the front to the rear. 4A single storey brick residence, detached garage and associated outbuildings stand on the site, all of which would be demolished if consent were granted. An easement to drain water traverses the site at an angle from the south-eastern corner to the south west of the property. 5The site is located approximately 50m east of Orissa Street and within a cul-de-sac. Pedestrian access from the site to Marlowe Street is provided via a public reserve. A drainage reserve directly to the west separates the site from a residential flat building (14 Beaumont Street). To the east is a single storey dwelling (10 Beaumont Street), which adjoins a three storey residential flat building. There are residential flat buildings at the rear of the site which front Fletcher Street. 6Development along Beaumont Street is a mixture of residential flat buildings and single dwellings. Campsie shopping centre is to the north east of the site. Proposal 7The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 before another Commissioner of the Court. Whilst no agreement was reached, the applicant prepared amended plans to address the contentions in the case. Leave has been granted by the Court to rely on those plans. The main change made has been the reduction in number of units proposed from 14 to 9 with consequential reduction in the size, floor space and parking. 8The proposal before the Court comprises the demolition of existing site improvements and the construction of a residential flat building containing 9 units and a basement carpark accommodating 12 cars. The unit mix comprises 1 x studio, 3 x 1 bedroom, 4 x 2 bedroom and 1 x 3 bedrooms. Planning controls 9The site is zoned R4 High Density Residential under Canterbury Local Environmental Plan 2013 (CLEP) and the proposed development is permissible with consent in that zone. The application was lodged as In-fill affordable housing under the provisions of Division 1 of State Environmental Planning Policy (Affordable Rental Housing) 2009. 10The amended plans satisfy the relevant provisions of SEPPARH, including floor space ratio (FSR), dwelling sizes, car parking, deep soil, landscaped area and solar access. 20% of the gross floor area is to be nominated as affordable housing consistent with the provisions of SEPPARH. 11The amended plans also comply with the height limit of 8.5m provided in cl 4.3 of CLEP. The FSR of 0.76:1 exceeds the maximum FSR of 0.75:1 specified in cl 4.4 of CLEP but is below the FSR available under cl 13 of SEPP ARH and has reduced from 1.17:1 in the original application. The amended proposal satisfies the controls in Canterbury Development Control Plan 2012 (CDCP) for front, side and rear setbacks, building depth and communal open space. The site does not comply with the numerical requirement for a minimum frontage of 20m for residential flat buildings (cl 2.1.2), which is discussed below. Evidence 12The Court visited the site and heard from a number of residents who had been notified of the amended proposal and the proposed consent orders. Their key concerns related to the increase in traffic and demand for parking and impacts of noise and privacy. The residents of 10 Beaumont Street were also concerned about impacts on their property from overlooking, loss of privacy, overshadowing and the bulk of the proposal. 13The Court heard planning evidence from Mr A Betros, for the applicant, and Mr H Morad, for the council. The experts had prepared a joint report, which addressed the contentions raised by council. They concluded that the amended plans had resolved the issues in dispute. 14The planners agreed that the reduction in height, the two storey presentation to Beaumont Street and the pitched roof form achieve a compatible streetscape outcome. Furthermore, they agree that the amendments achieve compliance with the requirements for landscape area, solar access, dwelling size, building depth, setbacks, deep soil and privacy. 15The planners noted that the site does not comply with the minimum frontage requirement of 20m in cl 2.1.2 of CDCP but considered that despite the numerical non compliance, the objectives of the control were met as the site frontage is adequate to provide pedestrian and vehicular access to the site as well as landscaped setbacks and a built form that is consistent with the streetscape. Furthermore, the applicant has provided evidence that reasonable offers were made to purchase 10 Beaumont Street, in order to achieve a compliant street frontage, but were rejected. The planners agreed that the proposal would not result in isolation of 10 Beaumont Street as it would be capable of future development and met the requirements of cl 2.1.1 of CDCP. 16The planners did not consider that the issues raised by the objectors were matters that would warrant refusal of the application. In particular, they noted that the proposal met the parking requirements of cl 14 of SEPPARH and that consent must not be refused on this ground. The proposal would not overshadow 10 Beaumont Street as it is located to the south west of this property. Acceptable privacy would be achieved by the minimum 4m setback, use of the rooms and size of windows facing 10 Beaumont Street. A condition has been included requiring privacy screening of the communal open space. 17For the above reasons, I am satisfied that the contentions have been adequately addressed and that the consent orders sought by the parties may be granted. Orders 18The Court orders by consent: (1)The appeal is upheld (2)Development Application No. Da-50/2013 for the demolition of existing structures and the construction of an infill affordable housing development in the form of a three storey residential flat building containing nine apartments with basement level parking for 12 vehicles on the land known as Lot 148 in Deposited Plan 4357, 12 Beaumont Street, Campsie is approved subject to conditions in Annexure A. (3)The exhibits, except Exhibits 2, 5, B and C, are returned. Annelise Tuor Commissioner of the Court Annexure A Amendments 30 July 2014 - Representation added Amended paragraphs: Coversheet 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: 30 July 2014