ACW Property Group Pty Ltd v Sutherland SC

[2006] NSWLEC 112

Land and Environment Court

of New South Wales

CITATION:

ACW Property Group Pty Ltd v Sutherland SC [2006] NSWLEC 112

PARTIES:

APPLICANT
ACW Property Group Pty Limited

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10932 of 2005

CORAM:

Hussey C

KEY ISSUES:

Development Application :- demolition of two dwellings and construction of eight town houses, excavation, impact on neighbours, privacy.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

02/03/2006

EX TEMPORE JUDGMENT DATE:

03/03/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. O'Dowd, town planner

RESPONDENT
Mr C. Mathieson, solicitor
of Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 March 2006

10932 of 2005 ACW Property Group Pty Limited v Sutherland Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT

1 The appeal arises from council’s refusal of the development application for the demolition of 2 dwellings and subsequent construction of 8 town houses, with a basement carpark at 9-11 Paddison Avenue, Gymea.

2 For the appeal a number of issues were identified and they reflect the reasons of refusal of the development application. They refer to a number of objections from the neighbours and can be summarised as:

• geo-technical concerns,
• stability impacts properties,
• setbacks,
• height of the building,
• drainage,
• privacy, and
• amenity concerns

3 However, in response to these concerns the applicant made a considerable number of amendments to the proposal. This lead to the re-assessment of the application by councils planning assessment officer, Ms Bolton and that is Exhibit 2. From this assessment, she considers that the issues have been satisfactorily addressed and she recommends that the proposal be approved. Council has considered this recommendation accordingly and has decided to enter into consent orders.

4 I have considered the detailed assessment report in Exhibit 2. It details that the site is currently zoned Residential (2b) and the development is permissible with consent of council, and the proposal satisfies the relevant planning controls. She also refers to the draft LEP, whose final approval is somewhat uncertain, but still the site is zoned multi dwelling A type development, so the proposed type of development is permissible. It deals with all the aforementioned issues raised, and in the absence of any significant challenge I rely on the assessment.

5 In addition to this, the report on the revised proposal was referred to the internal specialist from council. There were no substantive objections, which would lead to the refusal of the application.

6 Then a detailed s 79C assessment has been undertaken, which leads to Ms Bolton to the conclusion that the proposal should be approved. Part of that s 79C consideration deals with a SEPP 1 objection. This SEPP 1 objection is to c 35 of the LEP, which deals with the floor space ratio (FSR) provisions. The development standard provides for maximum FSR 0.7:1. This proposal has an FSR 0.69:1 but when basement area of a carpark and manoeuvring areas are taken into account, that apparently comes to 0.97:1. However, the implications that were discussed in the objection refers to the abnormality in terms of the inclusion of the manoeuvring areas, which does not really affect the external bulk and appearance of the building.

7 The assessment officer concludes that the SEPP 1 to this development standards should be allowed in this case in the absence of any competing evidence I accept that this SEPP 1 objection should be allowed and therefore strict compliance is unreasonable and unnecessary in the circumstances.

8 I am also satisfied then that the revised design is responsive to the site. Having heard the further concerns by the neighbours and the explanation for the designs for privacy screening and landscaping and setbacks, the proposal seems to be completely reasonable resulting in an attractive design for this proposal. On that basis then, I consider that the consent orders should be granted:

Consent Orders

1. The appeal is upheld.

2. Development Application No. 05/0622 for the demolition of two dwellings and construction of eight townhouses, basement carpark and strata title subdivision at 9-11 Paddison Avenue, Gymea is approved, subject to the conditions contained at Annexure A to these consent orders.

3. The exhibits be returned except for Exhibits 2, 6, A, B, C.

Note The Court notes the parties agreement on costs.

___________________

R Hussey
Commissioner of the Court
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