Abdul-Rahman v Strathfield Council [2014] NSWLEC 1237

Land and Environment Court New South Wales

Medium Neutral Citation: Abdul-Rahman v Strathfield Council [2014] NSWLEC 1237 Hearing dates: 1 September 2014 Decision date: 10 October 2014 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld subject to conditions see paragraph [59] Catchwords: DEVELOPMENT APPLICATION: additional storey; visual impact; affordable rental housing Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) Strathfield Local Environmental Plan 2012 Cases Cited: Northcote Trust v Hornsby Shire Council [2012] NSWLEC 1327 Project venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Omar Abdul-Rahman (Applicant) Strathfield Council (Respondent) Representation: Applicant: Mr P Clay SC (Barrister) Respondent: Mr A Seton (Solicitor) Applicant: Conomos Legal Respondent: Marsdens Law Group File Number(s): 10377 of 2014

Judgment 1COMMISSIONER: In December 2013 Strathfield Council granted consent to Development Application DA2013/179 for the demolition of existing structures and construction of a four storey residential flat building with a flat roof form, comprising 11 units and two levels of basement car parking at 21 Beresford Road, Strathfield (the site). Consent was granted under the 'infill affordable housing' provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Work has not commenced under this approval. 2In February 2014, the applicant lodged Development Application DA2014/017 for the construction of an additional/ fifth storey on the approved four storey residential flat building. The additional storey proposes a flat roof and comprises two additional units - 1 x 1 bedroom unit and 1 x 2 bedroom unit. The fifth storey is set back from all sides of the lower floors. Modifications of the basement car park are required in order to provide an additional three spaces. 3In May 2014, council's Planning Committee refused the application for the additional storey. The applicant appeals that decision under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 4The reasons for refusal are summarised from council's Statement of Facts and Contentions as: * Incompatibility with the character of the local area and therefore non-compliance with cl. 16A SEPP (ARH); * Non-compliance with the development standard for maximum height in Strathfield Local Environmental Plan 2012 (SLEP); * Excessive bulk and scale; * Adverse impacts on the amenity of future residents because of an increase in density; * Inconsistency with the 'Design Principles' for residential flat development in State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) (SEPP 65); * Overdevelopment of the site; * Unsuitable for the site; * Inadequate information; * Undesirable precedent; and * Not in the public interest. 5As a consequence of the joint conference between the parties' planning experts, the applicant prepared amended plans which show the additional storey principally enclosed within a pitched roof form as opposed to the flat roof form as originally proposed. The original proposal assessed by council exceeds the height limit control by 1 m. The amended plans show a non-compliance of up to 1.178m. An amended clause 4.6 exception to the height control was prepared and tendered. Six of the proposed 13 units will be designated as affordable rental housing. 6Leave was granted to rely on the amended plans and the parties agreed to an Order under s 97B(2) of the EPA Act for the payment by the applicant of the council's costs thrown away as agreed or assessed.