Land and Environment Court New South Wales Medium Neutral Citation: Design Workshop Australia Pty Ltd v Hurstville City Council [2014] NSWLEC 1236 Hearing dates: 3 November 2014 Decision date: 13 November 2014 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is upheld. 2. Development Application (DA2013/0268) for the demolition of existing buildings and construction of a three storey residential flat building comprising twenty three (23) units and basement car parking with twenty nine (29) spaces at 3, 5 and 7 Gover Street, Peakhurst, is approved subject to the conditions in Annexure A. 3. The exhibits, other than exhibits 4, A and B, are returned. Catchwords: DEVELOPMENT APPLICATION - Residential Flat Building. Amended plans address contentions Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Hurstville Local Environmental Plan 2012 Category: Principal judgment Parties: Design Workshop Australia Pty Ltd (Applicant) Hurstville City Council (Respondent) Representation: Mr M Staunton (Applicant) Ms J Hewitt (Respondent) Gadens (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10346 of 2014 Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hurstville City Council (council) of a development application (DA2013/0268) for the demolition of existing buildings and construction of a three storey residential flat building comprising twenty three (23) units and basement car parking with twenty nine (29) spaces at 3, 5 and 7 Gover Street, Peakhurst, (the site). 2The issues identified in the Council's Statement of Facts and Contentions were inconsistency with State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) (Contention 1), inconsistency with Hurstville Local Environmental Plan 2012 (the LEP) (Contention 2), inconsistency with Hurstville Development Control Plan No 1 - LGA Wide (the DCP) (Contention 3), public interest by establishing an unacceptable precedent (Contention 4), and insufficient information (Contention 5). The inconsistencies with the planning controls primarily relate to the bulk, scale and amenity impacts of the proposal, including solar access, privacy and streetscape impacts. 3In response to the joint conferencing of the experts, the plans have been amended. While council does not agree to consent orders, it accepts the agreed evidence of the experts that the Contentions have been addressed by the amendments to the plans and the proposed conditions. 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. Residential flat buildings are permissible with consent in the R3 zone. 5The Council has prepared a Planning Proposal to amend the LEP to change the zoning of the land in this area currently zoned R3 to R2, 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. 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 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 development. Clause 30 requires consideration of the advice of the Design Review Panel (DRP) (cl 30(2)(a)), design quality when evaluated in accordance with 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 is located on a bend and has two frontages to Gover Street. It comprises three adjoining allotments with a total area of 1,969 sqm and is irregular in shape. A dwelling with associated structures is located on each lot. To the south, the site adjoins a two storey detached dwelling (9 Gover Street) and to the west, it adjoins a town house development (1 Gover Street and 2 Lawrence Street) and single dwellings (4-6 Lawrence Street), which have a development application for a residential flat building. Peakhurst Park is located on the opposite side of Gover Street. 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 recent consents granted by the Court. Evidence 12The hearing commenced on site with a view and the Court heard from the adjoining owners at 9 Gover Street. Submissions made in response to the notifications of the development application were tendered into evidence. The main concerns of the objectors were that the proposal would be an overdevelopment of the site and inconsistent with the existing character of the area. The proposal would impact on residential amenity through increased traffic and loss of parking, overshadowing, privacy, loss of trees, noise and stormwater drainage. 13The adjoining owners of 9 Glover Street were particularly concerned about the extent of excavation adjoining their property, the potential impacts on sub soil drainage and their trees and the size of trees proposed along their boundary. They were also concerned about the increase in density, security, traffic, parking and access, and overshadowing and privacy impacts. The proposed conditions include requirements for a geotechnical and dilapidation reports to address excavation issues and amendments to the landscape plan to provide low scale planting along the boundary. 14Expert 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. The experts were not required for cross examination. 15Mr Darroch, Mr Betros and Ms Morrish prepared a joint report (exhibit 1), which addressed the plans submitted with the Class 1 appeal and the Contentions raised by council. The experts required further information and recommended amendments to the plans which included: i.changes to the units to improve solar access; ii.relocation of the communal open space to the roof to improve solar access, and avoid visual and acoustic impacts associated with the current location; iii.replace the communal area with open space for units 4 and 7 and changes to the internal and external layout for unit 8; iv.amendments to the driveway design and increased landscaping along the driveway boundary; v.changes to the eastern façade to increase depth and articulation to break up the building and improve the presentation of the building to the park; vi.increase deep soil planting through the reduction in excessive basement storage areas; vii.improve privacy to 9 Gover Street by the removal of south facing living rooms, privacy treatment to bedroom windows and landscaping. 16The applicant provided further information and was granted leave to rely on amended plans, which incorporated the amendments recommended by the experts (Amended Plans). The experts prepared a further joint report (exhibit 2) which addressed the further information, Amended Plans and recommended some further changes which were incorporated into further amended plans for which consent is sought (exhibit A). They reviewed these plans (Further Amended Plans) and prepared a supplementary joint report (exhibit 3). They agree that the amendments to the plans have resolved the Contentions. Findings 17The site is in an area undergoing transition as a consequence of the rezoning of the land in the area under the LEP to R3, under which residential flat buildings are permissible. The contentions raised by council with the application as originally lodged largely dealt with lack of information and whether the bulk, scale and amenity impacts of the proposal were acceptable. The parties agree that the proposal, as amended, meets the design principles in SEPP 65 and the considerations in the RFDC, such as solar access, internal amenity, building separation. It complies with the height and floor space ratio (FSR) controls in the LEP, meets the objectives of the plan and the R3 zone and satisfies the relevant controls in the DCP. 18There is a minor projection beyond the building envelope control and the roof pitch does not comply with the numerical requirement in s 4.3 of the DCP. However, the parties agree that the built form meets the objectives of these controls to achieve acceptable privacy, overshadowing, landscaping and streetscape response. 19The proposal is consistent with the desired future character for the area sought by the zone objectives and specific controls in the LEP and the requirements of the DCP and the RFDC. In particular, adequate solar access, privacy and amenity for both the development and adjoining developments are achieved. I am satisfied that the Contentions raised by council have been resolved and that the issues raised by objectors are addressed by conditions or would not warrant refusal of the application. The appeal may therefore be upheld and consent granted, subject to the conditions agreed to by the parties. Orders 20The Orders of the Court are: 1. The appeal is upheld. 2. Development Application (DA2013/0268) for the demolition of existing buildings and construction of a three storey residential flat building comprising twenty three (23) units and basement car parking with twenty nine (29) spaces at 3, 5 and 7 Gover Street, Peakhurst, is approved subject to the conditions in Annexure A. 3. The exhibits, other than Exhibits 4, A and B, are returned. Annelise Tuor 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: 13 November 2014