AS + VUT Pty Limited v Marrickville Council

[2007] NSWLEC 328

Land and Environment Court

of New South Wales

CITATION:	AS + VUT Pty Limited v Marrickville Council [2007] NSWLEC 328
PARTIES:	APPLICANT AS + VUT Pty Limited RESPONDENT Marrickville Council
FILE NUMBER(S):	10042 of 2007
CORAM:	Moore C
KEY ISSUES:	Development Consent :- Modification Consent orders
DATES OF HEARING:	2 May 2007
EX TEMPORE JUDGMENT DATE:	2 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms J Hewitt, solicitor Home Wilkinson Lowry RESPONDENT Mr G Christmas, solicitor Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

2 May 2007

10042 of 2007 AS + VUT Pty Limited v Marrickville Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of a development consent subject to revised detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: The matter that is currently before me is an appeal concerning an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 seeking to modify Development Consent 2003/00511 dated 9 December 2004 for the adaptive re-use of a building known as 31-45 Australia Street, Camperdown (the site). The site has frontages to Australia Street and to Denison Street.

2 The matters that are the subject of the modification application are to the Denison Street frontage.

3 They arise from the necessity for the applicant to satisfy the requirements of EnergyAustralia by the incorporation of an electricity substation to serve the site and there being a paucity of locations where that can occur. The original application to amend was based on cutting a substantial bay into the heritage façade of the building on Denison Street. That was not acceptable to the Council.

4 As a consequence of discussions which have taken place between the parties, it has been agreed that what is described as a bunker substation can be incorporated within, principally, the car parking area of the building (and possibly intruding into Lot 7) with the retention of the existing single aperture to the car parking area subject to a number of minor modifications.

5 The net loss of at ground level parking spaces in the parking area would be two. They are to be compensated for by the creation of an additional on-street car parking space by the retention of the single aperture for access to and egress from the car park in lieu of the approved two apertures and the incorporation in the conditions of a requirement for the installation of a two car stacker car parking rack system to serve Lot 7.

6 These, together with a reversing of the traffic flow within the present car park; a widening of the single aperture by 450 mm with an adjustment to the height to reflect the existing external corbelling on the building; coupled with a relocation of the existing bicycle racks modestly to the south of their present location, will achieve an outcome that will have minimum intrusion into the existing heritage façade.

7 That intrusion will be required for two grilled doors to serve the bunker substation. There will be no requirement for a second aperture to serve the car park.

8 As a consequence of that, I am satisfied that:

• the need for the substation has been met;
• there is no net effective reduction in the car parking provided in conjunction with the building, even though one of the spaces will be off the site; and
• finally that the outcome now proposed will have a significant heritage benefit in the retention of more of the heritage façade in an undisturbed form.

9 As a consequence of that, I am prepared to uphold the appeal by consent on the basis which I have outlined subject to the filing of revised plans to incorporate that which has been agreed between the parties and the filing of revised settled conditions to the same effect.

Tim Moore

Commissioner of the Court