Land and Environment Court New South Wales Medium Neutral Citation: Urban Link Pty Limited v Hurstville City Council [2014] NSWLEC 1263 Hearing dates: 9 December 2014 Decision date: 22 December 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Development Application: residential flat building Legislation Cited: Hurstville Local Environmental Plan 2012; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development; Environmental Planning and Assessment Act 1979 Texts Cited: Hurstville LGA Wide Development Control Plan No 1; Residential Flat Design Code Category: Principal judgment Parties: Urban Link Pty Limited (Applicant) Hurstville City Council (Respondent) Representation: Mr M Staunton (Applicant) Ms J Wauchope Gadens Lawyers (Applicant) Ms J Hewitt HWL Ebsworth Lawyers File Number(s): 10568 of 2014 Judgment 1Urban Link Pty Limited lodged Development Application DA2014/0106 with Hurstville City Council on 13 February 2014 seeking consent to construct a residential flat building at Nos38-40 Lawrence Street, Peakhurst. The council had not determined the application within the prescribed period and Urban Link lodged an appeal against the deemed refusal of the application. 2The contentions in the case have been addressed through the preparation of amended plans and the Court had granted leave to the applicant to rely on those plans on 2 December 2014. Other than conditions relating to drainage issues, the council did not press any of the contentions raised in the Statement of Facts and Contentions filed on 29 September 2014. The site and its context 3The site comprises two adjoining allotments, Lots A and B in DP 397959, known as Nos 38 and 40 Lawrence Street, Peakhurst. The site is on the northern side of the street, is regular in shape with a frontage of 44.28m, area of 1627sqm and falls from the south west to the north east by approximately 5.5m. 4A public accessway that is, according to the evidence a public road, runs along the eastern boundary of the site and links Lawrence Street to Gover Street. 5The site contains two dwelling houses and associated outbuildings, all of which would be demolished to facilitate the redevelopment proposed. A number of substantial trees around the perimeter of the site are to be retained and the location of the driveway access has regard to the need to retain substantial street trees that form an avenue along Lawrence Street. 6Development in the vicinity of the site comprises a mix of older style single storey dwellings, newer two storey dwellings and dual occupancy development and seniors housing. To the north east of the site, construction has commenced on a residential flat building development. 7The area is undergoing a transition from detached housing to higher density development following its rezoning in late 2012 to permit residential flat buildings. Background and the amended plans 8The appeal was lodged against the deemed refusal of the application and, on receipt of the council's Statement of Facts and Contentions, the applicant prepared amended plans in an attempt to address those contentions. The applicant was granted leave by the Court to rely on those plans on 1 October 2014. 9As a result of the joint conferencing process, further amended plans were prepared and leave was granted to the applicant to rely on those plans on 2 December 2014, Exhibit A, the Version I plans. 10The plans now before the Court propose the construction of a three storey residential flat building over basement parking. The development comprises 19 apartments with parking for 26 cars. A rooftop communal open space area is proposed and the applicant clarified the location of the lift well that would service that area through the provision of further amended plans, Exhibit E. The unit mix is 1 X 1 bedroom, 16 x 2 bedrooms and 2 x 3 bedrooms. In addition to two common open space areas, each unit has access to either ground level private open space or balcony areas. The planning controls 11The site is zoned R3 Medium Density Residential under Hurstville Local Environmental Plan 2012 (LEP) and residential flat buildings are permitted with consent in that zone. The objectives of the 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. 12Clause 4.3 and 4.4 of the LEP contain development standards relevant to the assessment of the application, those being height (12m maximum permitted) and floor space ratio (FSR) (1:1 maximum permitted). The development complies with those standards. 13Hurstville LGA Wide Development Control Plan No 1 (DCP) contains further controls relevant to consideration of the application and the evidence is that all controls are met with the exception of an area of the basement that protrudes above ground level. The council advises that it does not object to that non-compliance. 14State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) are also relevant considerations in relation to the contentions in the case. The issues 15Ms Hewitt, for the council, advised the amended plans satisfactorily addressed all of the council's contentions in the case and the only dispute between the parties was in relation to drainage conditions. These were resolved during the hearing and an agreed set of conditions has been provided to the Court. The evidence 16The hearing commenced on site with evidence heard from two objectors to the proposal. The issues raised are summarised as: * Overdevelopment of the site and not in character with the existing streetscape; * Parking and traffic problems due to the 7m road width and lack of bus services; * Council has engaged a consultant to review the zoning of the area and this investigation has determined the area is unsuitable for residential flat development. The council has lodged a gateway application with the Department of Planning seeking to down zone the area; * There is a need for a variety of housing types in the locality and not all development should be residential flat buildings. 17Expert town planning evidence was provided by Mr B Daintry for the applicant and Mr A Betros for the council. Ms G Morrish provided urban design evidence for the council. These experts prepared a joint report that considered the Version G plans and made a series of recommendations to improve the amenity of the development and address the contentions in the case. A Supplementary Joint Report was tendered as Exhibit 2. That report concluded that the latest plans, the Version I plans, address the outstanding concerns from the council's experts and recommended a number of consent conditions to ensure compliance with the council's controls. 18The experts were not required for cross examination. Conclusion and findings 19The expert evidence is that the proposed development is consistent with the planning controls. Ms Hewitt did not oppose the grant of consent subject to the imposition of conditions including deferred commencement conditions that address stormwater disposal. 20The Court must have regard to the matters listed in Section 79C of the Environmental Planning and Assessment Act 1979 (EP&AAct) when determining an application. 21Having regard to the evidence, I am satisfied that the development complies with the LEP, DCP, SEPP65 and the RFDC. 22The expert evidence is that the planning proposal which seeks to rezone the site and surrounding area from R3 to R2 is not a relevant consideration given that it has not received gateway determination by the Department of Planning. For this reason, any change to the zoning of the land is neither imminent nor certain and I must have regard to the current planning controls that apply to the land. The development satisfies those controls and for this reason, and having regard to the evidence, the impacts of the development are acceptable. 23I am satisfied that the site is suitable for the development and, whilst I accept the concerns of the residents who object to the development, there are no reasons that would warrant refusal of consent given the zoning of the site and compliance with the planning controls. 24The Orders of the Court are: (1)The Appeal is upheld. (2)DA2014/0106 for the construction of a residential flat building comprising 19 apartments with parking for 26 cars at Nos38-40 Lawrence Street is approved subject to the conditions in Annexure A. (3)The exhibits, other than exhibits A, E and 1, are returned. __________________ Sue Morris Commissioner of the Court Annexure A ********** 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: 23 December 2014