Achi Constructions Pty Ltd v Hurstville City Council

[2014] NSWLEC 1213

Land and Environment Court

New South Wales

Medium Neutral Citation:

Achi Constructions Pty Ltd v Hurstville City Council [2014] NSWLEC 1213

Hearing dates:

14 October 2014

Decision date:

15 October 2014

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

1. The appeal is upheld.

2. Development Application DA2013/0283 for the demolition of existing structures and construction of a three storey residential flat building comprising fifteen (15) units and basement car parking with nineteen (19) spaces and strata subdivision at 77-79 Lawrence Street, Peakhurst, is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 2 and A are returned.

Catchwords:

DEVELOPMENT APPLICATION - Residential Flat Building. Amended plans address contentions

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Hurstville Local Environmental Plan 2012

Cases Cited:

FM Holdings Pty Ltd v Hurstville City Council [2014] NSWLEC 1061
Karavelas v Hurstville City Council [2014] NSWLEC 1195

Category:

Principal judgment

Parties:

Achi Constructions Pty Ltd (Applicant)
Hurstville City Council (Respondent)

Representation:

Ms A Hemmings (Applicant)
Mr M Seymour (Respondent)
Gadens (Applicant)
Norton Rose Fullbright (Respondent)

File Number(s):

10430 of 2014

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hurstville City Council (council) of development application DA2013/0283 for the demolition of existing structures and construction of a three storey residential flat building comprising 15 residential units with basement car parking for 19 cars and strata subdivision at 77-79 Lawrence Street, Peakhurst (the site).

1. The issues identified in the Council's Statement of Facts and Contentions were inconsistency with State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC) (Contention 1), insufficient information (Contention 2), and inconsistencies with the applicable planning controls that would establish an unacceptable precedent and not be in the public interest (Contention 3)

1. In response to the joint conferencing of the experts, the plans have been amended. Council accepts the agreed evidence of the experts that the contentions have been addressed by the amendments to the plans and the proposed conditions.

Planning Controls

1. The site is zoned R3 Medium Density Residential under Hurstville Local Environmental Plan 2012 (the LEP). The land surrounding the site, in the area bounded by Forest Road and Jacques Avenue to the south, Bonds Road to the east, Trafalgar Street and Gover Street to the north, and Belmore Road to the west, is zoned R3. Residential flat buildings are permissible with consent in the R3 zone.

1. The Council has prepared a Planning Proposal to amend the LEP to change the zoning of the land in this area currently zoned R3 to R2, which has been submitted to the Department of Planning. It was common ground that the proposed amendment of the zoning is not a relevant consideration in this appeal.

1. Clause 2.3(2) of the LEP requires that regard be had to the objectives for development in a zone when determining a development application. The objectives for the R3 zone are:

· To provide for the housing needs of the community within a medium density residential environment.

· To provide a variety of housing types within a medium density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure that a high level of residential amenity is achieved and maintained.

· To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.

1. Clause 4.3 of the LEP permits a maximum height of 12m and cl 4.4 permits a maximum floor space ratio (FSR) of 1:1. The proposed building complies with the height and FSR controls.

1. Hurstville Development Control Plan No 1 - LGA Wide (DCP) applies to the development. Section 3 contains General Planning Considerations, and Section 4: Specific Controls for Residential Development, which includes s 4.3 Multiple Dwellings & Residential Flat Buildings.

1. SEPP 65 applies to the development. Clause 30 requires consideration of design quality when evaluated in accordance with the design quality principles in cll 7-18, and the RFDC.

The site and its context

1. The site is on the southern side of Lawrence Street and comprises two adjoining allotments with a total area of 1184.7 sqm. It has a fall from the rear east corner to the front west corner of approximately 4.15m.Two dwellings are centrally located on each lot.

1. Development in the immediate vicinity of the site is predominantly single or two storey detached dwellings. The area is undergoing change, and several applications have been made for residential flat buildings in the locality as a result of the rezoning under the LEP, including consents granted by the Court for 50-52 Lawrence Street (FM Holdings Pty Ltd v Hurstville City Council [2014] NSWLEC 1061) and 66-68 Lawrence Street (Karavelas v Hurstville City Council [2014] NSWLEC 1195).

Evidence

1. The hearing commenced on site with a view. The adjoining owner was unable to attend the site view and a submission, which outlined his concerns, as well as submissions made in response to the notifications of the development application were tendered into evidence. The main concerns of the objectors were that the proposal would be an overdevelopment of the site and inconsistent with the existing character of the area. The proposal would impact on residential amenity through increased traffic and loss of parking, overshadowing, privacy, loss of trees, noise and stormwater drainage. The adjoining owner was particularly concerned about the privacy impacts from the proposal and overlooking of his property and the increase in cars parked in the street.

1. Expert planning evidence was provided on behalf of the applicant by Mr Andrew Darroch, and on behalf of the council by Mr Anthony Betros. Expert urban design evidence was provided on behalf of the council by Ms Gabrielle Morrish. The experts were not required for cross examination.

1. Mr Darroch, Mr Betros and Ms Morrish prepared a joint report (exhibit 7), which addressed the plans submitted with the Class 1 appeal and the Contentions raised by council. The experts recommended that further information outlined in Contention 2 be provided, including a FSR diagram to demonstrate compliance with cl 4.4 of the LEP. They also recommended amendments to the plans which included:

i.   a reduction in the driveway width to increase the landscaping along the side setbacks;

ii.   the deletion of the timber framed trellis over the visitor space to increase private open space and landscaping;

iii.   the relocation of the communal open space to the roof to improve solar access, and avoid visual and acoustic impacts associated with the current location. This would require an alternate roof design to the pitched roof;

iv.   replace the communal area with open space for units 1 and 5 and redesign these units to be orientated to the western side landscaped setback;

v.   redesign the front setback to provide direct pedestrian access to units 1 and 2 and provide a platform lift to achieve access from the street front to the lobby;

vi.   relocate windows in unit 2 to improve internal amenity;

vii.   lower units 4, 5, 9, 10, 14 and 15 to achieve level access and avoid internal stairs within the lobby area;

viii.   relocate bin store; and

ix.   provide 3.1m floor to floor heights.

1. The applicant provided the further information and was granted leave to rely on amended plans, which incorporated the amendments recommended by the experts on 30 September 2014 (Amended Plans). The experts prepared a supplementary joint report, which addressed the further information and Amended Plans (exhibit 3). The experts agreed that, subject to further minor changes, the recommended changes had been adequately incorporated into the Amended Plans and addressed the contentions. In particular, they agree that the FSR of the development complies with cl 4.4 of the LEP and that the solar access to the development meets the requirements of the RFDC and the DCP for 70 percent of units to receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid winter. The experts agree that a pitched roof form, as originally proposed, is not essential and that the relocation of the communal open space to the roof top is a better outcome and the proposed flat roof is acceptable. The experts did not raise concerns about the minor projection of the building beyond the building envelope.

1. During the hearing the applicant sought and was granted leave to amend the plans to incorporate the further minor amendments recommended by the experts (Further Amended Plans). The Further Amended Plans (exhibit A) are the plans for which consent is sought.

Findings

1. The site is in an area undergoing transition as a consequence of the rezoning of the land in the area under the LEP to R3, under which residential flat buildings are permissible. The contentions raised by council with the application as originally lodged largely dealt with lack of information and whether the proposal met the height and FSR controls in the LEP and controls in the DCP and considerations in the RFDC, such as solar access, floor to ceiling heights, landscaping and open space.

1. With the provision of further information and the incorporation of changes recommended by the experts, the parties agree that the proposal in the Further Amended Plans complies with the height and FSR controls and meets the objectives for the R3 zone in the LEP. The proposal also meets the controls in the DCP and the RFDC. Although there is a minor projection beyond the building envelope control in s 4.3.2.4 of the DCP the experts did not raise this as an issue and the parties agree that it is acceptable. The application originally proposed a pitch roof in accordance with s 4.3.2.3 of the DCP. However, the experts did not consider this to be essential to achieve an appropriate built form and streetscape response. As a result of the recommendation to relocate the communal open space, a flat roof has been provided, which is acceptable.

1. The proposal is consistent with the desired future character for the area sought by the zone objectives and specific controls in the LEP and the requirements of the DCP and the RFDC. In particular, adequate solar access, privacy and amenity for both the development and adjoining developments is achieved. I am satisfied that the contentions raised by council have been resolved and that the issues raised by objectors would not warrant refusal of the application. The appeal may therefore be upheld and consent granted, subject to the conditions agreed to by the parties.

Orders

1. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application DA2013/0283 for the demolition of existing structures and construction of a three storey residential flat building comprising fifteen (15) units and basement car parking with nineteen (19) spaces and strata subdivision at 77-79 Lawrence Street, Peakhurst, is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 2 and A are returned.

Annelise Tuor

Commissioner of the Court

Annexure A

Decision last updated: 16 October 2014