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)). The site and its context 10The site comprises Lots 153 and 154 in DP 36317, with a total area of 1195.1 sq m. It has a fall from east to west and a fall of approximately 2 m from south to north. 11Development 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), 77-79 Lawrence Street (Achi Constructions Pty Ltd v Hurstville City Council [2014] NSWLEC 1213) and 71-75 Lawrence Street (Achi Constructions Pty Ltd v Hurstville City Council [2014] NSWLEC 1216. Evidence 12Expert town planning evidence was provided on behalf of the applicant by Mr Brett Daintry, 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 Daintry, Mr Betros and Ms Morrish prepared a joint report, which addressed the plans submitted with the Class 1 appeal and the contentions raised by council. 13Leave was granted to the applicant to rely on amended plans and Mr Daintry, Mr Betros and Ms Morrish prepared a supplementary joint report (Exhibit 3) on the amended plans which indicated that the contentions previously raised by the council have been adequately addressed. Their agreement also relied on further changes which were identified in the joint report. 14Mr Seymour, 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 way so that there was general compliance with the relevant controls in the LEP, the DCP, SEPP 65 and the RFDC. Minor variations, such as the pitch of the roof were considered acceptable by the experts and not matters that would support the refusal of the application. Findings 15With 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 within 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 and the further amendments. With the provision of further information and the incorporation of changes recommended by the experts, there was agreement that there is general compliance with the council's controls, as well as meeting the objectives for the R3 Medium Density Residential zone in the LEP. 16The proposal also meets the controls in the DCP and the RFDC, with some minor variations. 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. 17Of the matters raised by the adjoining property owner (and which were not raised as contentions by the council), I am satisfied that these matters also do not raise any substantive concerns that would require the refusal or amendment to the application. For completeness I will briefly deal with these matters. Driveway location - the proposed driveway adjoins the objector's property and the concern was that the driveway (when combined with another driveway on the opposite side of the road) would create unacceptable noise and pollution impacts on her property. With an understanding of the plans, the relocation of the driveway cannot be achieved without a major redesign of the development because of the basement layout and the slope of the land. Given the relatively small number of units and consequent vehicle movements, I am satisfied that any amenity impacts are not likely to be of such significance to warrant amendment. Side setback-the side setback was seen to be inadequate to protect against overlooking from adjoining windows although I agree with the experts that any overlooking is adequately addressed through the proposed screens on the windows. Roof terrace - overlooking from the roof top common open space was seen as a concern although I am satisfied that the setbacks from the edge of the roof, the balustrades and planter boxes will provide an acceptable level of protection. Overshadowing - given the orientation of both properties, I am satisfied that adequate solar access will be available although there will be reduced solar access to that currently achieved in the afternoons. Isolation of site - it was suggested that as the adjoining property could not satisfy the minimum frontage requirement, the property cannot be developed to the same standard as the proposed development. While this is factually correct, it is not an insurmountable barrier to the future development of this property although a greater barrier is likely to be the value of this property given the quality of the existing dwellings compared to the older style dwelling that have been redeveloped in the area. Directions 18As there was agreement between the parties that the recent amendments should be included in a fresh set of plans and conditions provided that reflects these plans, final orders can be made in Chambers following the filing of the agreed plans and conditions. On filing of these documents, the Court will make the following orders: 1. The appeal is upheld. 2. 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 and strata subdivision at 22-24 Gover Street, Peakhurst, is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 2, A and B are returned. __________________ G T Brown Commissioner of the Court Amendments 25 November 2014 - minor typographical errors Amended paragraphs: Coversheet and para 17 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: 25 November 2014