Land and Environment Court New South Wales Medium Neutral Citation: Frank and Susana Tomas v Ashfield Council [2016] NSWLEC 1183 Hearing dates: 5 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. DA 10.2015.21.1 by Ashfield Council for the demolition of all the existing improvements and the construction of a four storey shop top housing development at 125‑131 Croydon Road, Croydon is approved subject to the conditions in Annexure A. 3. The exhibits except exhibits 1, A and B are returned. Catchwords: DEVELOPMENT APPLICATION: demolition of all the existing improvements and the construction of a four storey shop top housing development - whether a fourth storey is acceptable – adequacy of communal space – weight to be given to Ashfield Interim Development Assessment Policy Legislation Cited: Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 Category: Principal judgment Parties: Frank and Susana Tomas (Applicants) Ashfield Council (Respondent) Representation: Counsel: Mr S Nash, barrister (Applicant) Mr P Jackson, solicitor (Respondent) Solicitors: Marsdens Law Group (Applicant) Pikes & Verekers Lawyers File Number(s): 10943 of 2015 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of DA 10.2015.21.1 by Ashfield Council for the demolition of all the existing improvements and the construction of a four storey shop top housing development at 125‑131 Croydon Road, Croydon (the site). 2. The council filed a statement of facts and contentions that identified the following reasons why the application should be refused: 1. overdevelopment, 2. permissibility, 3. inadequate information, 4. neighbour privacy, 5. height, 6. landscaping, 7. heritage, 8. overshadowing, 9. accessibility, and 10. active frontages. 1. Leave was granted for amended plans and following further consideration by the expert planner for the council, Mr Phillip North and for the applicant Mr Stuart McDonald, the following matters remained in contention: 1. whether or not a fourth storey is acceptable, and if so in what form, 2. whether or not the communal space is acceptable, and 3. whether the provision of pt C1 of Ashfield Interim Development Assessment Policy applied and if so what provisions. The site 1. The site consists of two irregularly shaped lots of land that are defined as Lot A in DP 307690 and Lot 19 in DP 10333. The site is currently occupied by a number of one and two storey shop top housing buildings. The site is located on the south eastern intersection of Croydon Road and John Street in Croydon where surrounding development is primarily residential and consists largely of single storey detached dwelling houses. Relevant planning controls 1. Ashfield Local Environmental Plan 2013 (LEP 2013) was gazetted on 23 December 2013 and applies to the proposed development. The site is within Zone B1 Neighbourhood Centre pursuant to LEP 2013 and the proposal is permissible with the consent of council. The surrounding residential development is within Zone R2 Low Density Residential. The property is located within the vicinity of the Ivanhoe Estate Conservation Area No C32 within sch 5 of LEP 2013, although no heritage matters were ultimately pressed by the council. 2. Clause 4.3 allows for a maximum building height of 13 m and it was agreed that the proposed development satisfies this standard. Clause 4.4 allows for an FSR of 1.5:1and it was also agreed that the proposed development satisfies this development standard. LEP 2013 has no other applicable standards or requirements. 3. The council has no development control plan that applies to the site although the council relies on a document titled Ashfield Interim Development Assessment Policy 2013 (the Interim Policy). The evidence from Mr North was that the Policy had not been publicly advertised for comment but was used by the council consistently for the assessment of development applications. Status of Ashfield Interim Development Assessment Policy 2013 1. The status or weight to be given to the Interim Policy was addressed by Commissioner Pearson in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 on 30 January 2015. Commissioner Pearson concluded that the Interim Policy should be given little weight. In coming to this conclusion Commissioner Pearson notes that the interim policy has not been advertised for public comment, a matter considered to be a relevant consideration by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 in his comments on establishing the weight to be given to what he describes as a "planning policy of a council." 2. Even though the Court may search beyond normal planning documents in addressing the public interest (Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195) I see no reason to depart from the conclusions reached by Commissioner Pearson on the Interim Policy. I would like to add that it is difficult to understand that a council in metropolitan Sydney does not have a development control plan to support its recently adopted LEP. This void in planning for the local government area places a high degree of uncertainty for the both residents and prospective applicants. A fourth storey? 1. The fourth storey contention was addressed by Mr North and Mr McDonald in their joint report where it was agreed that a fourth storey is acceptable in some form. The concerns of Mr North related to the unrelieved four storey scale of the lift shaft and fire stair, a lack of articulation to the southern facades and the southern set-back of unit 301 on the fourth level. Mr North accepted that the lift shaft should be clad in a light coloured material rather than the dark colours proposed although his evidence was unclear as to whether this totally overcame his concerns. I agree with Mr McDonald that this provides an additional level of comfort and should be included in the development. 2. I do not accept Mr North's concerns over the articulation of the southern façade. At street frontage the building is set back some 2 m, some of which is deep soil which can accommodate some landscaping. There is an area on the southern boundary where there is a nil set-back. This area is the enclosed entry to the car park and has a height of around 2 m and a length of around 10.5 m at this location. 3. The remaining southern boundary is set back greater distances. The building is set back at different levels above ground level ranging from 2 m from 5 m to 7 m. I am satisfied that there is sufficient articulation along this facade to provide a building of architectural interest through different set-backs, different building elements and different materials. I see no conflict with the planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 that relates to development located on boundaries where there is a change of zoning. 4. Similarly the increased set-backs with building height and the use of landscaping along the eastern boundary is also acceptable. I also agree with Mr McDonald that the additional set-back of 2 m for unit 301 sought by Mr North is also unnecessary. This unit is already set back 4.7 m from the southern boundary, some 2.7 m greater than the balcony of the level below. I am satisfied that the fourth level has been made as recessive as possible, giving compliance with the height and FSR requirements of LEP 2013. 5. Having regard to the zone objectives pursuant to cl 2.3(2) of LEP 2013, I accept there is no conflict to the zone objectives. Communal open space 1. The communal open space for the development is provided in two locations; at ground level at the east of the site and as a landscaped terrace on the second floor. Mr North's concerns relate to the second floor terrace where he maintains that this area is located some distance from the lift and circulation areas and as such is not readily identifiable for residents. This was rejected by Mr McDonald who stated this area is both accessible and functional while creating no privacy impacts for adjoining residents. I agree with the conclusion of Mr McDonald based on my understanding of the plans. Conditions 1. The parties agreed on a number of changes to the council's conditions of consent however three conditions remained in dispute, these are: 2. Condition 1(a) seeks a further 2 m set-back of Unit 301 which can be deleted for the reasons set out earlier in the judgment. 3. Condition 1(b) requires each bathroom to provide wheelchair access. Mr McDonald maintains that the Building Code of Australia provides that only one of the bathrooms in the proposed development needs to be accessible and this bathroom is contained within the accessible unit. I agree with his conclusions and condition 1(b) can be deleted. 4. Condition 24(3) provides hours of use for the communal open space terrace on the second floor. The council seeks the use of the terrace area to cease at 7pm whereas the applicant proposes 9pm. I agree with the applicant that 9pm is a reasonable time for the use of this area to cease. Resident evidence 1. At the site inspection the Court heard from a number of residents including those directly adjoining the site. Concerns were expressed regarding the height of the proposed development however I have given significant weight to the height requirement in LEP 2013 and also that the applicant has attempted to reduce the visual prominence of the upper level by increased set-backs. For these reasons the height would not be a matter to warrant refusal of the application. 2. The owner of the adjoining property in Croydon Road expressed concern over the proximity of this dwelling, particularly a bedroom, to noise from cars accessing the basement car park. This was not a matter raised by the council however I accept that this could be a potential issue for the adjoining owner. While much of the noise from the cars entering and leaving the car park will be addressed by the enclosed area over the ramp, I accept that the 1.8 m high brick wall on the boundary will provide sufficient protection absent an acoustic report addressing this issue. 3. For the reasons set out in the judgment there is no reason why development consent should not be granted. 4. Despite the urging of Mr Jackson to consider more general matters such as the impact on the general character of the area that was raised by the elected council; the Court has an obligation to direct itself to the principal contested issues as set out in the statement of facts and contentions. In this case, those matters were addressed as part of the joint conferencing of experts and ultimately in the preparation of a joint report. This report identified the principal contested issues as those set out earlier in the judgment. To do otherwise would be to unfairly prejudice the applicant. Orders 1. The orders of the court are: 1. The appeal is upheld. 2. DA 10.2015.21.1 by Ashfield Council for the demolition of all the existing improvements and the construction of a four storey shop top housing development at 125‑131 Croydon Road, Croydon is approved subject to the conditions in Annexure A. 3. The exhibits except exhibits 1, A and B are returned. ___________ G T Brown Commissioner of the Court 10943 of 2015 gtb (C) (338 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: 23 May 2016