Land and Environment Court New South Wales Medium Neutral Citation: K & A Company P/L v Hunters Hill Council [2015] NSWLEC 1359 Hearing dates: 25 August, 2015 Decision date: 02 September 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. By consent, Development Application No. 2013/1152 for alterations and partial demolition of an existing building and construction of a part 4 and 5 storey residential flat building accommodating 21 dwellings and 29 car spaces, at 7 Pittwater Road, Gladesville, is approved, subject to the conditions of consent at Annexure "A". 3. The exhibits, other than exhibits 2, 3 and A, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; no objectors; residential flat building. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: K & A Company P/L (Applicant) Hunters Hill Council (Respondent) Representation: Mr G. McKee, solicitor (Applicant) Mr J. Cole, solicitor (Respondent) Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 11024 of 2014 Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) is before the Court for consent orders in relation to Development Application No. 2013/1152 for alterations and partial demolition of an existing commercial building and construction of a part 4 and 5 storey residential flat building accommodating 21 dwellings and 29 car spaces (the proposal), at 7 Pittwater Road, Gladesville (the site) by Hunters Hill Council (the Council). 2. The appeal was subject to mandatory conciliation on 24 February, 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 19 May, 2015, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court during the hearing for the applicant to rely on the amended proposal (exhibit A). Issues 1. The Council's contentions in relation to the original application can be summarised as: * The proposal is an overdevelopment of the site resulting in unacceptable impacts on surrounding properties and the streetscape; * The proposal does not reflect the quality urban design advocated by State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); * The proposal results in poor amenity for future occupants; * The proposal has an unacceptable, detrimental impact on the adjoining heritage item. * The proposal has insufficient landscaped area; and * The proposal has provided insufficient information. The site and its context 1. The site is an L shaped allotment with a frontage to Pittwater Road to the north-west and Massey Street to the south-east. There is an existing two storey building fronting Pittwater Road. 2. There are two heritage items adjacent to the site; 'Dunham House' at 2 Massey Street and the Fire Station at 7A Pittwater Street, Gladesville. Background and the proposal 1. Prior to the hearing, the parties agreed to enter into consent orders, based on amendments made to the original proposal. 2. In considering the consent orders, the Court's Practice Note – Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. Resident objectors were invited by letter, dated 15 July 2015, to attend the hearing and give evidence, however, the Council submits that no objectors responded. The Council further submits that the objections raised by the resident objectors regarding the original proposal have been addressed by the amendments made to the proposal following the conciliation conference. Planning framework 1. The site is zoned B4 Mixed Use pursuant to Hunters Hill Local Environment Plan 2012 (LEP 2012) and residential flat buildings are permissible with consent. The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure that new buildings provide an appropriate transition between the business zones and surrounding residential localities. • To maximise levels of pedestrian and business activity along street frontages. 1. The site is adjacent to two heritage items, 'Dunham House' at 2 Massey Street (Item 480, Schedule 5 Environmental Heritage of LEP 2012) and the Fire Station at 7A Pittwater Road (Item 485, Schedule 5 Environmental Heritage of LEP 2012). Pursuant to sub-cl 5.10(4) of LEP 2012, the consent authority must consider the effect of the proposed development on the heritage significance of the item before granting consent. 2. Hunters Hill Consolidated Development Control Plan 2013 (DCP 2013) applies to the proposal. DCP 2013 includes at 3.4.3, in relation to setbacks for residential flat buildings, the following objectives: (a) Ensure that the siting of new buildings, or of alterations and extensions to an existing building, respects the pattern of setbacks that are characteristic of the surrounding locality (particularly in relation to pre-1930's buildings which define the Municipality's identity). (b) Maintain adequate garden space between buildings for compatibility with the Municipality's existing character and to minimise adverse visual impacts for adjacent properties. (e) Ensure equitable access to sunlight, privacy and private views. (f) Preserve and enhance streetscape character. 1. DCP 2013 includes at 3.4.4, in relation to landscaped areas for residential flat buildings, the following objectives: (a) Ensure that new developments are compatible with the Municipality's character which is defined by buildings that are set in, and separated by, gardens. (b) Provide space between buildings to protect and augment the tree covered environment for which this Municipality is noted. (c) Ensure that new developments respect rather than alter the existing steep sandstone topography for which this Municipality is noted. (d) Achieve gardens that are useful and accessible with adequate sunlight and privacy. (e) Provide areas of deep soil in order to protect existing drainage systems from increased stormwater runoff. Public submissions 1. A number of resident objectors provided evidence to me at the commencement of the conciliation conference on site on 24 February, 2015. Their objections to the original proposal can be summarised as: * The proposal is an over development of the site, the side setbacks are insufficient, the proposal will overshadow its neighbours and the landscaped area is insufficient; and * The proposal will have an unacceptable impact on the amenity of the adjoining heritage item, Dunham House. Expert evidence 1. Ms Gabrielle Morrish, architect and urban designer, provided expert advice to the applicant on behalf of the Council and the parties submit that her recommendations, which addressed the Council's contentions, have been incorporated into the amended proposal and on that basis, the Council is willing to enter into final consent orders. 2. Mr Andrew Minto, planner, provided an expert report on behalf of the applicant regarding the changes made to the amended proposal (exhibit B). Consideration 1. The changes made to the proposal can be summarised as: * The proposal has been reduced in height from 6 storeys to part 4 and part 5 storeys, with a maximum height of RL 67.2 for the central building element, Building A, which complies with the height of buildings development standard for the site of 18m in LEP 2012; * The gross floor space of the proposal has been reduced, so that the floor space ratio (FSR) of 1.21:1 complies with the maximum FSR development standard of 1.3:1 in LEP 2012; * The footprint of the basement has been reduced and the setbacks of the basement from the side boundaries increased; * The building has been divided into two buildings with a communal courtyard added between the refurbished building and the new building; * The side setbacks and street setbacks have been increased; * The internal configuration of apartments has been amended and a minimum of 70% of the units receive at least 3 hours of solar access on the winter solstice; * The appearance and materials of the proposal has been changed. 1. I accept the Council's submission that the amendments made to the proposal, including the introduction of the communal courtyard and the overall reduction in gross floor area, the increase in side setbacks and the reduction in the overall height of the proposal, have addressed the Council's contention regarding the original proposal being an overdevelopment of the site. 2. I accept the Council's submission that the amendments made to the proposal, including the redesign of the internal layout of units to achieve a minimum of 70% of units with at least 3 hours of solar access at the winter solstice, have addressed Council's contentions regarding the non-compliance of the original proposal with SEPP 65 and poor amenity for future occupants. 3. I accept the Council's submission that the decrease in the overall bulk of the proposal and the increase in the side setbacks have addressed the Council's contention regarding the original proposal's detrimental impact on the adjoining heritage item, Dunham House. 4. I accept the Council's submission that the creation of a communal courtyard with deep soil planting and the increase in side setbacks have addressed Council's contention regarding insufficient landscaped area. 5. The Council submits that all the information required under the contention of insufficient information has now been provided by the applicant. Conclusion 1. In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the resident objectors at the commencement of the conciliation conference on site, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. By consent, Development Application No. 2013/1152 for alterations and partial demolition of an existing building and construction of a part 4 and 5 storey residential flat building accommodating 21 dwellings and 29 car spaces, at 7 Pittwater Road, Gladesville, is approved, subject to the conditions of consent at Annexure "A". 3. The exhibits, other than exhibits 2, 3 and A, are returned. ____________ Susan O'Neill Commissioner of the Court 11024 of 2014 O'Neill (C) (127 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: 02 September 2015