Baraz Constructions Pty Limited v Strathfield Council

[2015] NSWLEC 1419

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Baraz Constructions Pty Limited v Strathfield Council [2015] NSWLEC 1419
Hearing dates:	19 October 2015
Date of orders:	20 October 2015
Decision date:	20 October 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: In-fill affordable housing; contentions resolved through amendments made to plans
Legislation Cited:	Strathfield Local Environmental Plan 2012; State Environmental Planning Policy – (Affordable Rental Housing) 2009; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings; Environmental Planning and Assessment Act 1979
Texts Cited:	Strathfield Consolidated Development Control Plan 2005
Category:	Principal judgment
Parties:	Baraz Constructions Pty Limited (Applicant)   Strathfield Council (Respondent)
Representation:	Solicitors: Mr G McKee, McKees Legal Solutions (Applicant)   Mr T O’Connor, Houston Dearn O’Connor (Respondent)
File Number(s):	10148 of 2015

Judgment

1. Baraz Constructions Pty Ltd lodged Development Application DA 2014/112 with Strathfield Council on for August, 2014 seeking consent to construct a three-storey residential flat building with a two level basement carpark as infill affordable rental housing. The council refused consent on 17 February 2015 and Baraz is appealing that decision.

2. As the result of an earlier conciliation conference and subsequent joint conferencing between the parties’ town planners, the contentions in the case have been resolved through the provision of amended plans and the parties are seeking consent orders from the court.

The site

3. The site is legally identified as Lot 29 in DP 35941 and has the street address of No 36 Noble Avenue, Strathfield. It is a wedge shape with a narrow frontage to Noble Avenue on an arc 10.72m long. The eastern side boundary is 47.28m, the western boundary is 34.285m and the rear boundary is 29.38m. The total area of the site is 731.1 m².

4. The site currently contains a single storey dwelling house with a detached garage. A driveway extends from the north-east corner to the western side of the dwelling and into the rear yard. Vegetation at the site is limited to a cluster of established trees along the rear boundary which includes a large Jacaranda.

5. The site has a slight fall from the rear boundary to the front and it is located opposite Edwards Park, an informal open recreational space that contains a picnic shelter and children’s playground. The High Street Community Library is located at the northern end of the park.

6. There are bus stops in Liverpool Road within approximately 250m and a 350m walking distance of the site which are part of local and regional routes. Strathfield and Burwood railway stations are within approximately 2.5 km of the site. Strathfield South commercial centre is south of the site and approximately 450m walking distance. Strathfield South Primary School is located to the south-east of the site and is approximately 400 m walking distance.

7. Existing development in the vicinity of the site comprises a range of low and medium density residential development. In response to new planning provisions and increased density controls in Strathfield Local Environmental Plan 2012 (LEP), development in the vicinity of the site is undergoing transition to medium density.

8. Adjoining the site to the east is a medium density residential development containing 12 apartments and a basement carpark at No 34 Noble Avenue and further east at No 32 an apartment building is under construction. The consent applying to that land is for 12 apartments and was granted under the provisions of State Environmental Planning Policy – (Affordable Rental Housing) 2009 (SEPPARH).

9. A single story detached dwelling adjoins the site to the west with a Telstra communications facility including a tower is located on the property adjoining the southern (rear) boundary. That adjoining land is in Zone SP2 - Special Uses Telecommunications.

The planning controls

10. The site is zoned R3 - Medium density residential under the LEP. The proposed development is permissible with consent. The application relies on the provisions of Division 1 In-fill affordable housing of SEPPARH for the floor space that is proposed. The provisions of clause 13 (2)(a) provide for additional floor space above the 0.65:1 permitted under the LEP. The proposed floor space ratio (FSR) development is 0.65:1 and accords with the provisions of that clause a total of three dwellings within the nine apartments to be constructed would be affordable housing pursuant to the provisions of the policy.

11. Strathfield Consolidated Development Control Plan 2005 (DCP) applies to the site with Parts C, H and N particularly relevant.

Background and the proposal

12. The plans refused by the council proposed the construction of a three-storey residential flat building containing a total of 14 apartments. A conciliation conference was held shortly after the appeal was filed and whilst an agreement was not reached at that stage, the applicant applied for and was granted leave to rely on amended plans.

13. During the joint conferencing that was held prior to this hearing, the town planning experts recommended further amendments be made to those plans. In accordance with those recommendations, the applicant prepared amended plan, the Version F plans (exhibit A) and sought leave to rely on those plans. The council did not oppose leave and I granted the applicant leave to rely on those plans subject to payment of $3500 being the council’s costs as thrown away including those awarded earlier in the proceedings.

14. The plans now before the Court propose the construction of a three-storey apartment building over two basement parking levels. Increased boundary setbacks from those originally proposed and amended interior layouts are provided to address the council’s contentions in relation to amenity and solar access and compliance with the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP65).

15. Parking for 11 cars would be provided within the basement of the proposed building and would be accessed via a driveway to be constructed to the north east of the proposed building. An area of communal open space would be provided in the western corner of the site with the four ground floor apartment allocated areas of private open space at ground level and the upper apartments having balconies as their private open space areas. Pedestrian access would be provided from a pathway running adjacent to the site’s western boundary with a lift providing access to all levels of the development. The ground floor would contain 2 x 2 bedroom and one studio apartment with the first and second floors containing 2 x 2 bedroom and 1 x 1 bedroom plus study apartments.

16. The lift overrun exceeds the maximum building height permitted under clause 4.3 of the LEP by 380mm. The applicant has prepared a written objection to that development standard (Exhibit B). The Council has assessed that objection and submits that it is well founded and does not press non-compliance with the height development standard as a reason to refuse consent.

17. The council had notified three objectors in relation to the proceedings however none of these persons attended the site. Mr O’Connor, for the council, advises that, pursuant to the provisions of Part L, clause 2.5 of the DCP, re-notification of the amended plans is not required because the amendments are considered to have a lesser effect than the plans that were originally notified. The council considers the amendments made address the matters raised in the submissions it received in relation to the original application.

The evidence

18. Expert town planning evidence was heard from Mr Stuart Harding (applicant) and Mr Jeff Mead (respondent). They agree the amended plan reflect the changes recommended in their joint report (exhibit 2) and address all of the contentions in the case. They also agree that the objection to the building height development standard is well founded.

Conclusion and findings

19. Having regard to the town planning evidence and the submission of Mr O’Connor for the Council who states that the development is now satisfactory, there are no reasons why consent should not be granted.

20. The Orders of the court are:

1. The applicant is granted leave to rely on the Version F plans subject to payment of the council’s costs thrown away of $3500 which includes the cost associated with the previous application to rely on amended plans, pursuant to section 97B of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development Application 2014/112 for the construction of a residential flat building over basement car parking and containing one studio apartment, 6 x 2 bedroom apartments and 2 x 1 bedroom plus study apartments and 11 car parking spaces is approved subject to the conditions in Annexure A.

4. The exhibits, other than exhibit A, are returned

_________________________

Sue Morris

Commissioner of the Court

10148 of 2015 Morris (C) (398 KB, pdf)

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Amendments

21 October 2015 - typographical error

Decision last updated: 21 October 2015