Alexus Pty Limited v Leichhardt Council - [2010] NSWLEC 1114

Land and Environment Court

of New South Wales

CITATION: Alexus Pty Limited v Leichhardt Council [2010] NSWLEC 1114

PARTIES:
APPLICANT
Alexus Pty Limited
RESPONDENT
Leichhardt Council

FILE NUMBER(S): 10939 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- conversion of an existing garage/parking areas into 3 residential units, SEPP 1 Objection to FSR and parking, internal amenity.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000

DATES OF HEARING: 27 April 2010

DATE OF JUDGMENT:
26 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Frazer (barrister)
SOLICITOR
Craddock Murray Neumann Lawyers
RESPONDENT
Ms R McCulloch (solicitor)
SOLICITOR
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

26 May 2010

10939 of 2009 Alexus Pty Limited v Leichhardt Council
JUDGMENT

Background.

1 This appeal was lodged against council’s deemed refusal of a development application for the conversion of part of a 4 level mixed-use development located at 91 – 95 Victoria Road, Rozelle. The proposal involves the reduction in the ground floor business area and conversion of the existing garage/parking areas associated with the business area into 3 residential units.

2 The existing building was originally approved in or about 2000 in the following configuration:

Commercial/business floor area of approximately 487 sq m at ground level (Victoria Road);
An intermediate level (Level 1) providing parking for the business floor area on the western side (the area currently occupied by and under lease to the ground floor tenant). This has ground level access from Prosper Lane;
5 residential units at levels 2 and 3, with pedestrian access from Prosper Lane;

3 This consent was subsequently modified by the Court in consent orders made in 2007, which allowed the conversion of the eastern part of the car park area into 3 residential units. However this was subsequently amended to 2 units that have now been constructed. Consequently there is no car parking for either the pre-existing residential units or the new units. The modified conditions included:

Condition 27:

Application for a subdivision certificate under Section 109(C) (1) (d) of the Environmental Planning and Assessment Act 1979 shall be made to Council and be approved and registered prior to occupation. In so doing the associated strata plan and by laws shall be amended to reflect the following:

i Parking space 4 to be denoted on the strata plan as being a loading dock for Pt Lot 12.

ii The visitor parking spaces to be allocated to PT Lot 12 (the commercial tenancy);

iii No owners, tenants or occupiers of this building are eligible to participate in any existing or proposed Council Parking Schemes. All occupants and/or employees of this building will be ineligible to obtain any Council Parking Scheme permits.

4 The contentions raised by council for this current application are then summarised as:

Overdevelopment of the site;
Parking impacts;
Suitability of the proposed revised parking loading arrangements for the ground floor commercial/business tenancy;
SEPP 1 Objection to the FSR development standard.
Internal amenity of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1114
Decision Date: 26 May 2010

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Alexus Pty Limited appealed against Leichhardt Council's refusal of a development application for the conversion of part of a 4-level mixed-use development at 91-95 Victoria Road, Rozelle. The proposal involved reducing the ground floor business area and converting the existing garage/parking areas into 3 residential units. The primary issue in the appeal was the SEPP 1 Objection to the floor space ratio (FSR) development standard. Other issues included parking impacts, internal amenity of the proposed residential units, and disabled access provisions.

The court held that the SEPP 1 Objection to the FSR development standard was not well-founded. While the proposal exceeded the FSR, the court found that the objectives of the development standard were satisfied. The court found that the primary purpose of the FSR development standard was to control the intensity of land use and to protect the amenity of residents in the area. The court was satisfied that the proposal, by reducing the commercial area and increasing the residential area, would likely increase parking demands and reduce the amenity of the residents. The court also found that the new proposed basement car park would have reduced amenity and attractiveness for use. Therefore, the proposal did not satisfy the assumed objective of the development standard.

Regarding the other issues, the court found that the amendments undertaken during the hearing would improve the solar access and internal amenity of the proposed residential units. However, the failure of the SEPP 1 Objection meant that these issues were not determinative.

The court dismissed the appeal and disallowed the SEPP 1 Objection. The court also refused development consent for the conversion of the commercial car parking area to create 3 residential units and to reconfigure the ground floor commercial area at 91-95 Victoria Road, Rozelle.

Orders