Aviani Family (John & Carol Aviani) Altamira Holdings Pty Limtied v Burwood Council
[2008] NSWLEC 1410
•30 September 2008
Land and Environment Court
of New South Wales
CITATION: Aviani Family (John & Carol Aviani) Altamira Holdings Pty Limtied v Burwood Council [2008] NSWLEC 1410 PARTIES: APPLICANT
RESPONDENT
Aviani Family (John & Carol Aviani) Altamira Holdings Pty Limtied
Burwood CouncilFILE NUMBER(S): 11037 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Construction of a nine storey mixed use (mainly residential) building, floor space ratio, site area, landscape area and building height. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Draft Burwood Local Environmental Plan 2008
Draft Burwood Local Environmental Plan 2007
State Environmental Planning Policy No 1 Development Standards
Burwood Planning Scheme OrdinanceDATES OF HEARING: 24/09/2007, 29/09/2008 and 30/09/08 EX TEMPORE JUDGMENT DATE: 30 September 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr Pickles, barrister
Instructed by Mr A. MurrellRESPONDENT
Mr I. Hemmings, barrister
Instructed by Allens Arthur Robinson
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
11037 of 2006 Aviani Family (John & Carol Aviani) Altamira Holdings Pty Limtied v Burwood Council30 September 2008
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to the refusal of a development application for the demolition of existing buildings and the construction of a nine storey mixed use (mainly residential) building at 1-3 Belmore Street and 67-73 Shaftesbury Road, Burwood.
2 The application was first lodged with the Council in 2005 and has been amended on several occasions since that time, mainly in response to several draft local environmental plans. It has been advertised on several occasions and there is continuing resident objection to it.
3 Under the Burwood Planning Scheme Ordinance, the site is partly zoned Business Special 3(c2) and Residential 2(c1), and the proposal in its present form is permissible with development consent. It does not however comply with development standards involving floor space ratio, site area, landscape area and building height.
4 In order to overcome these development standards, the applicant has provided objections under State Environmental Planning Policy No 1 Development Standards. In their most recent form, these objections rely upon the Draft Burwood Local Environmental Plan 2008, the proposal now being almost entirely consistent with the relevantly applicable development standards in that draft plan. Indeed, Mr M Chuonsue, a senior council town planner, agreed that the development complies with the requirements of draft LEP 2008 and but for the question of certainty and imminence associated with draft LEP 2008 the development is otherwise satisfactory, subject to appropriate conditions of consent.
5 In his submissions, Mr Hemmings on behalf of the council explained that should the Court find the making of draft LEP 2008 to be certain and imminent then there would be no objection to the court upholding the SEPP 1 objections and granting the consent as sought, subject to the draft conditions that were tendered during the hearing, however, for reasons to which I will refer shortly, he submits that the making of draft LEP 2008 is not certain and as a consequence the appeal should be dismissed.
6 In his submissions for the applicant, Mr Pickles conveniently summarises the genesis of draft LEP 2008. That genesis is to be found in the Burwood Town Centre Vision document which incorporated the master plan for the town centre that was adopted by the council in March 2004. The implementation of the master plan was to be through the adoption of a new local environmental plan and development control plan for the town centre. The objectives of the master plan include the fostering of high density commercial and residential development.
7 Following the adoption of the vision document and master plan, the council prepared draft Local Environmental Plan 2007 and that plan was exhibited in March and July 2007.
8 On July 2007, the Minister for Planning pursuant to ss 118 and 118AA of the Environmental Planning and Assessment Act 1979 established the Burwood Town Centre Planning Panel, empowering it with certain of Burwood Council’s town planning functions in relation to the Burwood Town Centre. Included in those functions but only in relation to the town centre is the making of environmental planning instruments under Part 3 of the Act.
9 The minutes of the planning panel that met on 17 April 2008 record the following.
- This report forms a basis of the Burwood town centre planning panel’s consideration of the results of the public exhibition of the draft Burwood town centre Local Environmental Plan 2007 and any changes proposed to be made to that draft LEP, the panel’s endorsement of the revised draft LEP, as well as the panel’s submission to the Department of Planning seeking a new s 65 certificate to allow the re-exhibition of the amended draft LEP 2007 (ie draft LEP 2008 ).
10 The report also contains a number of recommendations including the endorsement of draft LEP 2008 and the forwarding of it to the department requesting a s 65 certificate to enable its public exhibition. The panel also resolved to abandon the exhibited draft LEP 2007 and endorse its amendment and replacement with draft LEP 2008.
11 In making its recommendations in relation to draft LEP 2008, effectively as an amendment to LEP 2007, there was no suggestion that the panel did not take into account all of the relevant strategic requirements of the department and the council. It is also apparent that the panel, no doubt with the support of council town planning and other staff whose efforts were acknowledged by the panel, took into account the public submissions that were lodged as part of the exhibition of draft LEP 2007. This is evident, particularly in relation to the site of the development application, by the fact that the panel introduced a building height plane control that I understand is designed to reduce the visual impact of new development along the west side of Shaftesbury Road on existing residential development on the east side.
12 On 18 July 2008, draft LEP 2008 was granted a certificate under s 65 of the Act by the Director General of the Department of Planning to the effect that the draft plan may be publicly exhibited. In a letter accompanying the certificate, the Department advised that draft LEP 2008 has been considered in detail not only by the Department but also by Parliamentary Counsel. In this context it is particularly relevant to note that whilst changes were made by the Department to the draft plan resulting from its consideration of metropolitan strategy and major centres objectives, particularly involving car parking, no changes were made in relation to the fundamental provisions applicable to the site of the development application. Plainly, if the Department were concerned about any other details or indeed the fundamentals of draft LEP 2008, it would have said so and would have either amended the plan or refused to issue a s 65 certificate.
13 At the date of this hearing the exhibition of draft LEP 2008 had not been commenced, although I have now been advised that the exhibition will commence on 1 October 2008. Despite the fact that the draft LEP is about to go on exhibition, there can be no dispute that the making of it is not imminent, hence the dispute between the applicant and the council is whether the provisions of draft LEP 2008 insofar as they apply to the subject site are sufficiently certain to warrant upholding the SEPP 1 objections, to the effect that strict compliance with the developments standards in the planning scheme ordinance would be unreasonable or unnecessary.
14 Section 79C(1)(a)(ii) of the Act provides that in determining a development application, a consent authority is to take into consideration a draft environmental planning instrument that is or has been placed on public exhibition. On the surface, because draft LEP 2008 with its attendant s 65 certificate has not been placed on public exhibition, it would appear that this is not a matter required to be taken into account in the determination of the development application. Despite the panel having abandoned draft LEP 2007, they nevertheless refer to its amendment and replacement with draft LEP 2008. Whilst there is some ambiguity here, it is plain that the majority of draft LEP 2008, given my understanding that it is not materially different to draft LEP 2007, has been advertised and that the effect of advertising draft LEP 2008 is to enable comments to be made on the changes.
15 Despite these circumstances I would still not include draft LEP 2008 as a draft environmental planning instrument that has been placed on public exhibition pursuant to s 79C of the Act, however, in terms of merit and in the public interest, a matter that can be considered under s 79C of the Act, I am satisfied that significant weight can be given to draft LEP 2008 taking into account that it has emerged out of and is materially the same as the exhibited draft LEP 2007. Public interest includes the objects in s 5 of the Act that include the management and development of cities and towns, and the promotion and co-ordination of the orderly and economic use and development of land. In my opinion, these matters encompass the planning processes involved with the preparation of the two draft Local Environmental Plans in the light of local and regional strategies and the processing of this development application.
16 In a letter dated 31 March 2008, the Director General of the Department commented on the SEPP 1 objections. That letter notes the historic nature of the Burwood Planning Scheme Ordinance and that the controls therein remain applicable. The proposed development requires a large variation to these controls. Because (at that time) a s 65 certificate had not been issued, draft LEP 2008 cannot be considered to be certain or imminent and that granting concurrence at that stage would be premature. The Director General nevertheless points out that the refusal to grant concurrence should not be read as a reflection on the status or role of the Burwood town centre which is recognised in the metropolitan strategy and the draft inner west subregional strategy as the major centre serving the inner west subregion and a key focus for growth.
17 The Director General also suggests that there is no public benefit in setting an undesirable precedent for the approval of other development applications in the Burwood town centre prior to the making of draft LEP 2008. In this regard I am unaware of any other development applications that might as a result of an approval of this development application be approved and have some undesirable consequences. My decision here should, as should any other development application, be made on its own merits and on the assumption that it is the correct decision, it cannot be seen to form the basis of an undesirable precedent.
18 In his report, Mr Goldsmith, the applicant’s consultant town planner, in recognising that draft LEP 2008 has not yet been placed on exhibition, said that it nevertheless reflects the culmination of years of planning by the council starting with the Burwood vision document through to draft LEP 2007. Importantly, draft LEP 2008 is not materially different to draft LEP 2007, the only significant relevant change being the introduction of the building height plane. This evidence was not disputed. On this basis, draft LEP 2008 is entitled to have significant weight accorded to it, especially taking into account that the proposed development is not only permissible under the planning scheme ordinance but also under the proposed new planning instrument.
19 Mr Goldsmith also explained that the proposal is consistent with the now anticipated substantial change to the character of this particular neighbourhood.
20 Despite these matters, Mr Hemmings submitted that taking into account the continuing objections from residents and the Department of Planning’s denial of concurrence, together with the fact that draft LEP 2008 may not satisfy the new council or the Minister, these matters are not indicative of the requisite degree of certainty sufficient to uphold the SEPP 1 objections.
21 In relation to the residents’ concerns, taking into account the long history of these objections, they were known to the panel and taken into account when it produced draft LEP 2008. Whilst the future opinions of the recently elected council cannot be known, it is nevertheless relevant for me to take into account the views of the panel now reflected in the draft LEP in their lawfully appropriate exercise of the functions of the council.
22 The only remaining possible uncertainty is whether the Minister might not make the plan in its present form insofar as it applies to this site. Again this is not in my opinion sufficient to reduce the weight I give to draft LEP 2008 to cause me not to uphold the SEPP 1 objections. I have reached this conclusion taking into account the whole of the planning process that has culminated in draft LEP 2008 and there being no evidence other than the resident objections to suggest that it is in some way wrong or ill-founded.
23 All things considered, I have been persuaded that insofar as it applies to the land the subject of this development application, that draft LEP 2008 is sufficiently certain to form the basis for the upholding of the SEPP 1 objections, and I thus conclude that strict compliance with the development standards is unreasonable or unnecessary and I therefore uphold them.
24 As for the conditions of consent, the applicant has agreed to all of these except for condition 7 that requires a contribution of $30,000 for the construction of a roundabout at the intersection of Belmore Street and Shaftesbury Road. Whilst I have no doubt that this is a problem intersection having been identified as a “black spot,” there was no evidence to persuade me that the amount sought would be a fair and reasonable contribution by the applicant for the resolution of the traffic problems in this location. Bearing in mind that the applicant has agreed to condition 1 that requires a contribution of five per cent of the total cost of the development under s 94A of the Act towards public infrastructure, services and amenities that I understand deal with traffic matters, I have decided that an additional contribution for the roundabout should not be required. Condition 7 is therefore deleted.
25 I have therefore decided that the appeal should be upheld and development consent granted in accordance with the conditions in Exhibit 5. I understand that condition 1 is to be amended by agreement in relation to the cost of the development itself and when this is done this should be provided to the court by the close of business tomorrow, being as the conditions have not already arrived.
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- T A Bly
Commissioner of the Court
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