Land and Environment Court New South Wales Medium Neutral Citation: Gladstone Terrace Development Pty Ltd v Burwood Council [2015] NSWLEC 1321 Hearing dates: 3 August 2015 Date of orders: 11 August 2015 Decision date: 11 August 2015 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The applicant is granted leave to rely on the Revision G amended plans (Exhibit A), 2. The applicant pay the respondent's costs thrown away pursuant to s 97B of the Environmental Planning and Assessment Act 1979 in the sum of $12,500 within 28 days. 3. The appeal is upheld. 4. Development Application No. 2014.161 for the construction of a residential development with basement parking at 10 Gladstone Street, Burwood is approved subject to the conditions in Annexure A. 5. The exhibits be returned other than Exhibit A Catchwords: DEVELOPMENT APPLICATION: demolition of all existing improvements and the erection of a part 3 and part 5 storey building residential flat building - Original contentions addressed by amended plans – no delegations to enter into a s 34 Agreement or consent orders – resident objections addressed by amended plans Legislation Cited: Burwood Local Environmental Plan 2012 – Amendment 5 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Gladstone Terrace Development Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: Mr P Clay SC (Applicant) Ms K Law, solicitor (Respondent) Solicitors: Hicksons (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 10030 of 2015 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No.2014.161 for the demolition of all existing improvements and the erection of a part eight and part nine storey residential flat building containing 38 dwellings over 2 levels of basement car parking for 46 vehicles and 9 bicycles on the south western corner of the intersection of Gladstone Street and Mount Pleasant Avenue.at Burwood. 2. The proposal involves the demolition of the existing nursing home currently on the site. The vehicle access to the basement car parking levels is provided via a two way entry/exit driveway off the southern end of the Mount Pleasant Avenue site frontage. 3. The site is rectangular in shape and has a site area of 1,150m2 and has a frontage of 23.55m to the northern Gladstone Street frontage and 48.76m to the eastern Mount Pleasant Avenue frontage. The development site is described as Lots 1 and 4 in DP 577800. 4. The appeal was subject of a number of conciliation conferences under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached on 3 August 2015, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). 5. The council advised that the ongoing discussions had resulted in amendments to the design that have addressed all previously raised although there are no delegations to enter into a s 34 Agreement or consent orders. Relevant planning controls 1. The site is currently within Zone R1 General Residential under Burwood Local Environmental Plan 2012 – Amendment 5 (Amendment 5) where the site is subject to a maximum FSR of 1.5:1 and a maximum height of buildings of 11.0m. Amendment 5 came into effect on 28 November 2014. The proposed development is permissible, with consent in this zone. The total FSR proposed (as calculated by the applicant) is 2.66:1 and the maximum height of the proposed building is 26m.: 2. Even though the site is currently zoned under Amendment 5, the development application was lodged and not determined prior to the coming into effect of Amendment 5 and as such cl 1.8A of LEP 2012 is relevant. This clause states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 1. The planning instrument prior to be coming into effect of Amendment 5 was the unamended version of Burwood Local Environmental Plan 2012 (LEP 2012) that provides maximum FSR of 3:1 and a maximum height of buildings of 26m. The Revision G plans 1. The Revision G plans are the result of continuing discussions between the parties, including town planners Ms Larissa Brennan for the applicant and Mr Scott Barwick for the council. Ms Brennan and Mr Barwick provided a joint report on the Revision G plans and the contentions filed when the appeal was lodged. The joint report states on the principal concerns addressed by the council: Building Height 1. The Revision G plans provide for a reduced building height of approximately 18.1 m to the top of the lift overrun, 15.1 m to the roof at the southern end reducing to 9 m at the northern end. The building as amended provides a part 3 and part 5 storey building. 2. Ms Brennan and Mr Barwick agree that the proposal is in part above the 11m height limit introduced by Amendment No.5 and that the current statutory height limit specified in LEP 2012 at the time the application was lodged is 26m. Clause 4.6 preserves applications lodged prior to the coming into effect of Amendment No.5 and enables such applications to be considered under the controls in force at the time of lodgment of the application. 3. Ms Brennan and Mr Barwick agree that the reduced height of the building and the composition of a 3 and 5 storey form has successfully reduced the bulk and scale of the building to now appropriately respond to the context of the locality in its current and future form. The building as amended provides an appropriate transition in building height from 1-9 Mt Pleasant Avenue towards the lower scale dwellings to the north on Gladstone Street. 4. Notwithstanding the height control as a result of Amendment No. 5, Ms Brennan and Mr Barwick the building height now proposed achieves an appropriate balance between the previous and current height controls and will complement the existing and future character of the area. 5. We agree this Contention has been satisfactorily addressed by the amended design. Floor Space Ratio 1. The Revision G plans provide for an FSR of 1.62:1. Ms Brennan and Mr Barwick agree that the amended design has appropriately reduced the bulk and scale of the development and results in an appropriate balance between the permitted FSR of 3:1 and the reduced floor space ratio under Amendment No. 5 of 1.5:1. As with the height, the savings provision contained in Amendment No.5 applies to the consideration of FSR. 2. Ms Brennan and Mr Barwick agree that the amended plans demonstrate that the FSR proposed can be appropriately accommodated on this site. The revised design addresses the concerns raised by council in relation to the setback to Mt Pleasant Avenue which has been increased from 3m to 3.5m and the amenity of the dwellings to the west through the orientation of the units, setbacks and the incorporation of privacy screens. Urban Design 1. Ms Brennan and Mr Barwick agree that the provide for a good response to the Design QualityPrinciples of SEPP 65 for the following reasons: * the transition of building height from 5 storeys to 3 storeys at the northern end responds to the low scale nature of the dwellings on the northern side of Gladstone Street and the taller development to the south. * the composition of the facades and materials has been simplified and will complement the existing housing stock and provide a quality urban design outcome. * the built form results in a considered response to the existing and desired future character of the area and addresses the sites corner location in a positive manner. * the development achieves an improved relationship with the western boundary resulting in satisfactory compliance with the objectives of the building separation controls. * The development as amended provides a superior landscape outcome. The re-configuration of the basement parking area and driveway location enables the provision of a greater proportion of effective deep soil landscaping which will complement the building design and provide an improved interface with the neighbouring properties. The ability to accommodate further deep soil landscaping further augments the now satisfactory building separation response proposed. The re-positioning of the driveway entry enabling deep soil landscaping to the southern boundary which will improve the visual and acoustic amenity for the residents to the south. Heritage impacts 1. Ms Brennan and Mr Barwick agree that the revised bulk, scale, height and proportions of the building provide an appropriate relationship with the heritage items to the north on Gladstone Street. Floor to ceiling heights 1. Ms Brennan and Mr Barwick agree that the building provides 3m floor to floor heights which are sufficient to enable a floor to ceiling height of 2.7m. Other matters 1. Ms Brennan and Mr Barwick agree that the following other matters have been satisfactorily addressed: * visual privacy to dwellings G1 and G3, * poor visual privacy to ground level units below footpath level, * overlooking to the west, * details of communal open space, * acoustic impact on unit L8.1, and * acoustic impact on G2 from driveway. Resident objectors 1. The Revision G plans were advertised and a number of objections were received with one objector providing evidence in Court. The particular concerns related to: * loss of sunlight, * noise from the car park entry and exit, and * air pollution. 1. Having reviewed the shadow diagrams I am satisfied that while there is additional overshadowing, the location of the objectors unit would create additional overshadowing even if the building was reduced further in height due to its relationship with the site. The noise from the car park entry and exit has been addressed by Ms Brennan and Mr Barwick and found to be acceptable, in the circumstances. In my view, any additional air pollution is not a matter that would warrant the refusal of the application. Orders 1. In accepting the conclusions of Ms Brennan and Mr Barwick, there are no reasons that support the refusal of the application so the orders of the Court are: 1. The applicant is granted leave to rely on the Revision G amended plans (Exhibit A), 2. The applicant pay the respondent's costs thrown away pursuant to s 97B of the Environmental Planning and Assessment Act 1979 in the sum of $12,500 within 28 days. 3. The appeal is upheld. 4. Development Application No. 2014.161 for the construction of a residential development with basement parking at 10 Gladstone Street, Burwood is approved subject to the conditions in Annexure A. 5. The exhibits be returned other than Exhibit A _______________ G T Brown Acting Senior Commissioner 10030 of 2015 gtb (C) (142 KB, pdf) ********** 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: 11 August 2015