Stein v Ku-ring-gai Council [2015] NSWLEC 1270

Land and Environment Court New South Wales

Medium Neutral Citation: Stein v Ku-ring-gai Council [2015] NSWLEC 1270 Hearing dates: 15 May 2015 Date of orders: 22 July 2015 Decision date: 22 July 2015 Jurisdiction: Class 1 Before: Pearson C Decision: 1. The appeal is dismissed. 2. Development application DA0436/14 for the use of an existing commercial premise as a 24 hour access gymnasium, minor fit-out works, and the reconfiguration of excess floor space to create new offices, at 12-18 Tryon Road Lindfield is refused. 3. The exhibits are returned except for exhibits A, V, 1 and 6. Catchwords: DEVELOPMENT APPLICATION – Gymnasium – Car parking requirements – Access for people with a disability Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Disability Discrimination Act 1992 (Cth) Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2012 Cases Cited: Zhang v Canterbury Council (2000) 115 LGERA 373 Category: Principal judgment Parties: Gary Stein (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: Mr M Jaku, Jaku Legal (Applicant) Mr A Hudson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 10992 of 2014 Publication restriction: No

Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of development application DA0436/14 for the use of an existing commercial premise as a 24 hour access gymnasium, minor fit-out works, and the reconfiguration of excess floor space to create new offices, at 12-18 Tryon Road Lindfield (the site). 2. The site is on the northern side of Tryon Road, approximately 150m from Lindfield railway station. On the site is a strata titled commercial premises part two and part three storeys, with a basement car park containing 95 car parking spaces. 3. The development application relates to Lots 31, 32 and 33 of Strata Plan 88423, which are on the first floor of the commercial building on the western end. Units 31 and 32 are accessed by pedestrians from an internal stairwell from the ground floor foyer of the building fronting Tryon Road. Unit 33 is accessed from an external stairway on the western side of the building. The building does not contain a lift. There is internal stair access from the basement car-park and the internal foyer. 4. Adjoining the site to the west is a Council car park with 80 spaces, generally governed by a two hour time limit. Adjoining to the north of the site and the car parking area is a roadway and at-grade Council car parking area containing 58 spaces, generally governed by a two hour time limit. To the north of the site across from the car parking area and roadway is a five storey residential flat building. Indirectly opposite the site to the north west is a two storey commercial building at 2 Koochia Lane. On the opposite side of Tryon Road is a five storey residential flat building. 5. Units 31, 32 and 33 have a combined area of 674sqm which is proposed to be divided between the gymnasium and three residual office areas. The development application proposed 415sqm for the gymnasium and 259sqm for the residual offices; that was subsequently revised to 399sqm and 196sqm respectively. 6. The proposed fit-out involves: * Partial demolition of existing internal tenancy partition walls; * Construction of new internal partition walls to define use areas; and * Installation of new floor surfaces, fixtures and fittings. 1. The gymnasium will include: * Entry and reception area off the western walkway; * Office adjacent to the entry and reception area; * Toilet and shower suitable for people with a disability; * Small consultation area defined by low partitions; * Fitness/instruction room to be used for yoga classes with up to 10 students; * Cardio room at part of the northern end of the tenancy with treadmill, rowing, cycle and cardio-training fitness equipment; * Resistance training room within part of the northern end of the tenancy; * Staff amenities room; and * Existing air-conditioning room. 1. The proposed gymnasium is to be accessible 24 hours daily by electronic code access for gym members, and to be staffed between 7.00am-6.00pm. Access by the public to the gym is proposed from the external stairs on the western side of the building. The entry from the internal foyer will be for delivery of equipment. 2. All of the basement car parking spaces are allocated to specific strata units, including 18 allocated to the three units the subject of the development application. The applicant proposes that 15 of those spaces be allocated to staff and users of the gym, with a plan of management.