Land and Environment Court New South Wales Medium Neutral Citation: Achi Constructions Pty Limited v Hurstville City Council [2014] NSWLEC 1216 Hearing dates: 23 October 2014 Decision date: 23 October 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1.The appeal is upheld. 2. Development Application DA2013/0408 for the demolition of existing structures and construction of a three storey residential flat building comprising 21 units and basement car parking and strata subdivision at 71-75 Lawrence Street, Peakhurst, is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 1, 6, A and B are returned. Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a three storey residential flat building comprising 21 residential units with basement car parking and strata subdivision - amended plans address council contentions Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy No 65 Category: Principal judgment Parties: Achi Constructions Pty Limited (Applicant) Hurstville City Council (Respondent) Representation: Mr M Staunton, barrister (Applicant) Mr P Rigg, barrister (Respondent) Gadens Lawyers (Applicant) Hurstville City Council (Respondent) File Number(s): 10432 of 2014 Judgment 1COMMISSIONER: This is an appeal against the refusal by Hurstville City Council of DA2013/0408 for the demolition of existing structures and construction of a three storey residential flat building comprising 21 residential units with basement car parking and strata subdivision at 71-75 Lawrence Street, Peakhurst (the site). 2The contentions identified in the Council's Statement of Facts and Contentions were insufficient information (Contention 1), inconsistency with State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) (Contention 2), inconsistencies with Hurstville Local Environmental Plan 2012 (the LEP) that would produce unacceptable streetscape, height, bulk, scale and amenity impacts (Contention 3), inconsistencies with Hurstville Development Control Plan No 1 - LGA Wide (DCP) that would produce unacceptable solar access, streetscape, height and form (Contention 4) and precedent and not in the public interest (Contention 5). Relevant planning controls 3The site is zoned R3 Medium Density Residential under the LEP. The land surrounding the site, in the area bounded by Forest Road and Jacques Avenue to the south, Bonds Road to the east, Trafalgar Street and Gover Street to the north, and Belmore Road to the west. This area is zoned R3 where residential flat buildings are permissible with consent. 4The Council has prepared a Planning Proposal to amend the LEP to change the zoning of the land in this area from R3 Medium Density Residential to R2 Low Density Residential, which has been submitted to the Department of Planning. It was common ground that the proposed amendment of the zoning is not a relevant consideration in this appeal. 5Clause 2.3(2) of the LEP requires that regard be had to the objectives for development in a zone when determining a development application. The objectives for the R3 Medium Density Residential zone are: · To provide for the housing needs of the community within a medium density residential environment. · To provide a variety of housing types within a medium density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To ensure that a high level of residential amenity is achieved and maintained. · To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity. 6Clause 4.3 of the LEP permits a maximum height of 12m and cl 4.4 permits a maximum floor space ratio (FSR) of 1:1. The proposed building complies with the height and FSR controls. 7The DCP applies to the development. Section 3 contains General Planning Considerations, and Section 4: Specific Controls for Residential Development, which includes s 4.3 Multiple Dwellings & Residential Flat Buildings. 8SEPP 65 applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the RFDC (cl 30(2)(c)). The site and its context 9The site is on the southern side of Lawrence Street and comprises Lots 253, 254 and 255 in DP 36317, with a total area of 1,775.4 sq m. It has a fall from the rear boundary to Lawrence Street of approximately 3 m. 10Development in the immediate vicinity of the site is predominantly single or two storey detached dwellings. The area is undergoing change, and several applications have been made for residential flat buildings in the locality as a result of the rezoning under the LEP, including consents granted by the Court for 50-52 Lawrence Street (FM Holdings Pty Ltd v Hurstville City Council [2014] NSWLEC 1061), 66-68 Lawrence Street (Karavelas v Hurstville City Council [2014] NSWLEC 1195) and 77-79 Lawrence Street (Achi Constructions Pty Ltd v Hurstville City Council [2014] NSWLEC 1213). Evidence 11Expert town planning evidence was provided on behalf of the applicant by Mr Andrew Darroch, and on behalf of the council by Mr Anthony Betros. Expert urban design evidence was provided on behalf of the council by Ms Gabrielle Morrish. Mr Darroch, Mr Betros and Ms Morrish prepared a joint report (Exhibit 4), which addressed the plans submitted with the Class 1 appeal and the contentions raised by council. 12In response to the joint conferencing of the experts, leave was granted to rely on amended plans. Mr Darroch, Mr Betros and Ms Morrish prepared a supplementary joint report (Exhibit 5) on the amended plans which indicated that the contentions previously raised by the council have been adequately addressed. Mr Rigg, for the council, submitted that while the council did not consent to the granting of consent, it accepts the agreed position of the experts that the application has been amended in a meaningful way and that there was general compliance with the relevant controls in the LEP and DCP, particularly the height and FSR requirements in the LEP. Minor variations to the location of common open space and roof form were considered acceptable by the experts. Findings 13With an understanding of the changes from the Class 1 appeal plans and the amended plans, the benefit of a site inspection, a knowledge of recent approvals and the desired future character anticipated by the LEP, I accept the conclusions of the experts on the amended plans. The site is in an area undergoing transition as a consequence of the rezoning of the land in the area under the LEP to R3 Medium Density Residential, under which residential flat buildings are permissible. The contentions raised by council with the Class 1 appeal plans were essentially dealt with in the amended plans. With the provision of further information and the incorporation of changes recommended by the experts, there was agreement that there is compliance with the height and FSR controls, as well as meeting the objectives for the R3 Medium Density Residential zone in the LEP. 14The proposal also meets the controls in the DCP and the RFDC, with the minor variations identified earlier in the judgment. I agree that these variations do not warrant the refusal, or even modification of the amended plans. Consequently, there is no reason why development consent should not be granted. Orders 15The Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA2013/0408 for the demolition of existing structures and construction of a three storey residential flat building comprising 21 units and basement car parking and strata subdivision at 71-75 Lawrence Street, Peakhurst, is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 1, 6, A and B are returned. __________________ G T Brown Commissioner of the Court 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: 24 October 2014