St George Property Construction Pty Ltd v Cumberland Council [2017] NSWLEC 1433

Land and Environment Court New South Wales

Medium Neutral Citation: St George Property Construction Pty Ltd v Cumberland Council [2017] NSWLEC 1433 Hearing dates: 10 July 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Class 1 Before: Smithson C Decision: (1) The appeal is upheld. (2) Development Application DA 2016/269 for demolition of existing structures, consolidation of lots and construction of a shop top housing development at 102-108 Great Western Highway and 4 Joyner Street, Westmead is approved subject to the conditions set out in Annexure "A". (3) The exhibits, other than Exhibits A and 2, are returned. Catchwords: DEVELOPMENT APPLICATION: Site consolidation; objections; condition requiring public pedestrian path Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Holroyd Local Environmental Plan 2013 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: St George Property Construction Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: Mr P Clay (Applicant)

Solicitors: Mr P Saab, Macquarie Lawyers (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2016/369762 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Cumberland Council (the Council) of Development Application DA 2016/269 (the application) for construction of a shop top housing development at 102-108 Great Western Highway and 4 Joyner Street, Westmead (the site). 2. Specifically, the development proposes the demolition of existing structures, consolidation of four lots into one lot, and construction of a part six and part seven storey development comprising ground floor commercial premises and upper level residential units above two levels of basement parking. 3. Vehicular access is proposed from Joyner Street through use of 4 Joyner Street to provide a proposed access handle from Joyner Street to the Great Western Highway lots. This access arrangement will see the removal of an existing driveway on Great Western Highway which is a classified road. The balance of 4 Joyner Street will comprise landscaping and communal open space. 4. The site is generally hatchet shaped with multiple boundaries comprising: * a southern frontage to Great Western Highway of 50.45 m and a southern boundary to 2A Joyner Street of 30.16 m, * a northern (rear) boundary of 50.28 m to the rear of properties fronting Telfer Place and of 30.19 m to 6 Joyner Street, * a western side boundary of 43.40 m to 110 Great Western Highway and of 6.17 m to 8 Telfer Place, and * an eastern side boundary of 36.0 m to 2 and 2A Joyner Street and a frontage of 15.12 m to Joyner Street. 1. The combined site area is some 2,668 m². No's 106 and 108 Great Western Highway and 4 Joyner Street each currently contain single storey dwellings whilst 102 Great Western Highway is a vacant lot. There is no significant vegetation on the site which has a fall of some 3 m towards the rear from the south to north. 2. The site is 1 km west of the Parramatta CBD and is located within the Mays Hill Transitway Station Precinct. Redevelopment is currently underway within that precinct although surrounding development still predominantly comprises existing older style one and two storey dwellings. 3. The desired future character will see a significant transition in built form to higher density development. This is evidenced by the recent approval of a seven storey mixed use development adjoining the site to the east at 2 to 2A Joyner Street whilst to the north land is zoned for higher density residential development up to four storeys albeit current development comprises low scale dwellings. There are also single storey dwellings to the west fronting Great Western Highway. However, these are zoned for higher density mixed use redevelopment up to six storeys with commercial uses required at street level. 4. On the opposite side of Great Western Highway are Westmead Reserve, Fort Macquarie Cannon, and Westmead Cemetery which are listed as locally significant heritage items under the provisions of the Holroyd Local Environmental Plan 2013 (the LEP). 5. The portion of the site fronting the highway is zoned B6 Enterprise Corridor whilst 4 Joyner Street is zoned R4 High Density Residential under the LEP. The proposed development is categorised under the LEP as residential flat building (RFB) and home business, which are permissible uses in the zones with consent, but was referenced as shop top housing in the appeal. 6. The permissible height and floor space ratio (FSR) under the LEP for the site do not align with the zoning boundaries. 7. The maximum permissible height that applies is 23 m for approximately two thirds of the B6 zoned portion of the site adjacent to the highway and 15 m for the remainder of the site including the R4 zoned land. The proposed building is generally located in the portion of the site to which the 23 m height limit applies. 8. The maximum FSR for the portion of the site within the B6 zone is 2:1 whilst the maximum FSR for the portion of the site within the R4 zone is 1.2:1. The floor space of the proposed development is located wholly within the portion of the site zoned B6 and therefore a maximum 2:1 FSR applies. 9. The application was lodged with the Council in July 2016. At that time it proposed an RFB comprising 8 'Soho' apartments (lower level commercial, upper residential) and 50 residential units above two levels of basement parking for 83 cars. 10. The application was notified and two submissions were received. One submission raised concerns with the 'Soho' apartments rather than standard commercial tenancies at ground level, the lack of consolidation with properties in Telfer Place (and the offers made to those property owners), and the nature of the proposed walkway on the western boundary to give access from Telfer Place to the highway. There was however, support for vehicular access using Joyner Street. 11. The second submission was from the owners of a property at the rear in Telfer Place raising concerns with the close proximity of the development and potential adverse impacts on their property including privacy impacts, access to light, property value and increased traffic. Concern was also raised with the adequacy of the stormwater and sewer systems to cope with the additional development given existing problems with these services. 12. Roads and Maritime Services provided concurrence to the development pursuant to section 138 of the Roads Act 1993 subject to conditions. 13. In December 2016, the applicant lodged an appeal with the Court against the refusal of the application. 14. The Council contended that the proposal should not be approved for a number of reasons including height and FSR non-compliances, the proposed inclusion of 'Soho' apartments and the apartment mix, inadequate building separation and setbacks, poor solar and internal amenity for a number of apartments, the proposed fencing and parking arrangements, and inadequate vehicular and pedestrian access arrangements. 15. Primarily however, the Council was concerned that the proposed development did not achieve the consolidation/amalgamation pattern required in the Holroyd Development Control Plan 2013 (the DCP), and that insufficient information had been submitted to demonstrate that the alternative consolidation pattern proposed would be able to achieve the development outcome as prescribed by the DCP. 16. Part N of the DCP deals with development in the Mays Hill Transitway Station Precinct. Section 1.1 of Part N deals with site consolidation/amalgamation and frontage. The following are the objectives and relevant controls of s 1.1: Objectives O1. To ensure all sites provide the required minimum frontage to adequately provide for basement car parking. O2. To ensure all sites achieve the required minimum width to allow for a site configuration that permits a consistent character and landscaped open space to the rear of sites. O3. To ensure any site amalgamation pattern does not restrict the development opportunity of any adjoining site or the ability of adjoining sites to provide basement carparking or rear open space. O4. To ensure future redevelopment results in quality streetscapes, amenity, and appropriate passive surveillance, landscape and open space. O5. To require a more continuous building form along the Great Western Highway. O6. To ensure vehicular access for properties facing the Great Western Highway is provided from secondary streets or laneways. Controls C1. Amalgamation of lots in accordance with Figure 4 (a) and (b) is required for redevelopment. C2. Land locking of adjoining sites is not permitted. Properties shall be amalgamated to ensure the minimum frontage is obtainable without reducing the developability of adjacent properties. C3. Notwithstanding C1, the minimum lot frontage for all development fronting the Great Western Highway shall be 45 metres. C4. In instances where amalgamation cannot be achieved, the following information must be submitted with any development application: Two written valuations indicating the value of the remaining sites that were to be developed in conjunction with the applicants properties. These are to be undertaken by two independent valuers registered with the Australian Valuers Institute, and Evidence that a reasonable offer has been made to the owners(s) of the affected sites to purchase and valuation reports. C5. Alternative consolidation patterns may be considered by Council if it can be demonstrated that development controls can be satisfied on the land and adjoining properties. C6 Where amalgamation (as required) is not achieved, the applicants must show that the remaining sites, which are not included in the consolidation, will still be able to achieve the development outcome prescribed in this DCP, including achieving the required vehicular access, basement parking and built form. 1. Figure 4(a) is reproduced below with the site comprising the most eastern three lots fronting the highway and the third most northerly lot in Joyner Street: Figure 4(a) - Lot amalgamation plan - north 1. The DCP requires the three lots fronting the highway which comprise the majority of the site to be amalgamated with the four lots at their rear fronting Telfer Place. The DCP also requires the provision of a pedestrian link adjoining the western boundaries of 10 Telfer Place and the site to connect Telfer Place to the highway. A 4 m wide area of land to accommodate the link is provided for in the application from the highway to the rear of 10 Telfer Place accordingly. 2. The parties undertook conciliation under section 34 of the Land and Environment Court Act 1979 in an attempt to address the Council's contentions. As agreement on an acceptable form of development could not be reached, the conciliation was terminated and the matter set down for hearing. 3. Arising from the conciliation, amended plans were produced and leave was granted by the Court on May 24, 2017 to these plans. The amended plans reduced the height and FSR and number of car bays and deleted the 'Soho' apartments with two commercial tenancies proposed instead fronting the highway. 4. The amended plans addressed the majority of the Council's concerns. However, concern remained in terms of solar access to a number of apartments, with the proposed fencing, and with car parking and access arrangements. The main remaining concern however, was the proposed amalgamation arrangements. 5. Prior to the hearing, planning experts were appointed by both parties and joint conferral of the experts was undertaken to address the remaining contentions. 6. At the commencement of the hearing, the Court viewed the site and surrounds and heard from one objector whose parents lived at the rear in Telfer Place and who had lodged one of the two submissions to the original application. His written submission had raised a number of amenity concerns however, at the hearing, the only concern raised was to ensure that the sewer and drainage infrastructure was adequate to cope with the additional development. 7. The Court was advised that, as a result of the conferral of the experts, there was agreement by the parties that, subject to some further amendments agreed to by the applicant and with the imposition of conditions sought by the Council, all aspects of the development were acceptable to the Council other than the amalgamation arrangement. 8. This included the fact that the building exceeded the maximum height permissible in the LEP. However, the clause 4.6 written request submitted by the applicant to justify this breach had been accepted by the Council as it was a consequence of a lower height in more sensitive locations adjoining neighbouring properties. 9. The Council was also satisfied that the existing sewer and drainage infrastructure could accommodate the development. 10. The applicant had provided the Council with valuation and offer documentation as required under DCP Control C4 to demonstrate that amalgamation with Telfer Place properties could not be achieved as they could not be acquired. 11. The applicant also provided the Council with an indicative development layout for a site comprising the four Telfer Place properties to demonstrate that these lots could still achieve the development outcome prescribed in the DCP as is required by Control C6. 12. As a key objective of the DCP controls for the Mays Hill Transitway Station Precinct is to provide alternate vehicular access for new development fronting the highway, and given the Telfer Place properties could not be obtained, the applicant instead acquired 4 Joyner Place to provide that access as 4 Joyner Place adjoins part of the rear boundary of 102 Great Western Highway. 13. The applicant argued that this alternate consolidation pattern was facilitated under DCP Control C5. Development controls could be satisfied (in terms of the development outcome) for the appeal site and for 6-8 Joyner Street which were otherwise required to be amalgamated with 4 Joyner Street under Figure 4(a). 14. The Council advised that the applicant had not provided the Council with an indicative development layout for a site comprising 6 and 8 Joyner Street to demonstrate that this site could still achieve the development outcome prescribed in the DCP without 4 Joyner Street, as is required by Control C6. Nor was valuation and offer documentation as required under DCP Control C4 provided to the Council to demonstrate that amalgamation with 6 and 8 Joyner Street could not be achieved. 15. The only issue remaining in the appeal was therefore the consolidation (amalgamation) aspect of the application. There were also disputed conditions of consent associated with the proposed pedestrian link adjoining the western boundary of the site.