Beliquatum Property Development Pty Ltd v Hurstville City Council [2014] NSWLEC 1229

Land and Environment Court New South Wales

Medium Neutral Citation: Beliquatum Property Development Pty Ltd v Hurstville City Council [2014] NSWLEC 1229 Hearing dates: 5 November 2014 Decision date: 06 November 2014 Jurisdiction: Class 1 Before: Brown C Decision: Directions for amended plans and conditions Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a three storey residential flat building comprising 13 residential units with basement car parking - contentions raised by council addressed by amended plans - objector maintains objections of location of access driveway, side setback, location of common open space, overshadowing and isolation of property Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy No 65 Category: Principal judgment Parties: Beliquatum Property Development Pty Ltd (Applicant) Hurstville City Council (Respondent) Representation: Mr N Eastman, barrister (Applicant) Mr M Seymour, barrister (Respondent) Gadens (Applicant) Norton Rose Fullbright Australia (Respondent) File Number(s): 10465 of 2014

Judgment 1COMMISSIONER: This is an appeal against the refusal by Hurstville City Council of Development Application DA2014/0088:2 for the demolition of existing structures and construction of a three storey residential flat building comprising 13 residential units with basement car parking at 22-24 Gover 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), the Residential Flat Design Code (RFDC), inconsistencies with Hurstville Local Environmental Plan 2012 (the LEP), inconsistencies with Hurstville Development Control Plan No 1 - LGA Wide (the DCP) that would produce unacceptable solar access, inadequate landscaping, unacceptable amenity impacts on adjoining properties, poor access, poor apartment layout and internal circulation, poorly located common open space and inadequate storage areas (Contention 2) and public interest and precedent (Contention 3). 3An adjoining owner provided evidence on the site inspection and raised the following concerns: * the proposed access driveway is located too close to her property, * the side setback is inadequate. * the location of the common open space on the roof will allow overlooking of her property, * unacceptable overshadowing, and * isolation of her property for future redevelopment. Relevant planning controls 4The 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 is zoned R3 Medium Density where residential flat buildings are permissible with consent. 5The 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. The Planning Proposal 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. 6Clause 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. 7Clause 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. 8The 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. 9SEPP 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)).