BCE Investments Pty Ltd v Ku-ring-gai Council

[2006] NSWLEC 432

Land and Environment Court

of New South Wales

CITATION:

Marinkovic v Rockdale City Council [2006] NSWLEC 432

PARTIES:

APPLICANT
Milano Marinkovic

RESPONDENT
Rockdale City Council

FILE NUMBER(S):

11622 of 2004

CORAM:

Tuor C

KEY ISSUES:

Appeal :- Mixed use development
Existing use rights
Impact on adjoining properties, solar access and view loss.
Amended plans

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Marinkovic v Rockdale City Council [2006] NSW LEC 601;
Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING:

14-15/11/2006

EX TEMPORE JUDGMENT DATE:

11/15/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti, barrister
SOLICITORS
D C Balog & Associates

RESPONDENT
Mr J Cole, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

15 November 2006

11622 of 2004 Marinkovic v
Rockdale City Council

PRELIMINARY JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Rockdale City Council (the council) of a development application (DA657/04) under the Environmental Planning and Assessment Act 1979 (the Act) for a mixed use development at 140 The Grand Parade, Monterey (the site).

2 The site, its context, the history of the application and the planning controls are set out in the Statement of Basic Facts.

3 The site is currently used as a service station and mechanical workshop with a residential component, although the legality of the residential use was in dispute between the parties.

4 The parties agreed that the site enjoys existing use rights. It was also agreed that redevelopment of the site would be a positive outcome for the area. The site has opportunities afforded by its corner location, north facing aspect and views to Botany Bay but also has constraints, particularly its width (about 15 m). This width necessitates basement parking that goes from the north to the south boundary and provides little opportunity for deep soil planting and/or landscaping.

5 The Development Application was lodged a considerable time ago and has undergone many amendments since that time. Preston CJ in Marinkovic v Rockdale City Council [2006] NSWLEC 601 was critical on the length of time and the number of amendments that had been before the Court.

6 The current versions of the plans, whether Revision E or Revision F, raise issues of concern. While generally acceptable in urban form and an appropriate response to the corner of President Avenue and The Grand Parade, the proposal does not provide an acceptable transition between the residential development to the west (223 President Avenue) and the south (141 The Grand Parade). It also impacts on the amenity of these properties, particularly overshadowing and loss of views. The proposal would also place constraints on future redevelopment of 141 Grand Parade.

7 In the normal course of events, given the number of amendments and the time the application has been before the Court, further amendments to the proposal would not be countenanced. However, the site is covered by the transitional provisions of existing use rights, as such, if the application were to be refused the applicant would not be able to develop the site for a mixed use development. A residential flat building would be permissible within the zone but would not comply with council’s controls given the site is below the minimum frontage and minimum site area. The site is unlikely to be amalgamated with adjoining sites in the foreseeable future.

8 Both the parties agree that there is a public benefit to be achieved by redevelopment of the site. Mr Cole’s submission, for the council, raised no objection to further amended plans, subject to the applicant paying council’s reasonable costs.

9 Mr Tomasetti, for the applicant, has not given an undertaking as to costs. The question of costs may be dealt with by a Judge, if and when the applicant seeks leave to rely on amended plans. However, the application is unsatisfactory in its current form and amendments to the Revision F plans are required if an acceptable outcome is to be achieved. Having considered the concerns of the residents and the evidence of the experts, the following changes would be appropriate:

· Unit 1 and 7 to be deleted to enable view sharing from the north balcony of 223 President Avenue. If this view is largely retained, the view loss from the east balcony is acceptable, consistent with the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.

· No further extension of the top floor to the west to achieve an appropriate transition to 223 President Avenue and solar access benefits to 141 The Grand Parade.

· No additional storey on the east of the building i.e. to remain four storeys rather than be increased to five. I accept Mr Shiels’ evidence that a four storey building achieves appropriate urban form for this corner.

· Balconies along President Avenue to be either recessed or treated so that they read as lightweight structures with the building set back as the dominant element so that it does not read as a four storey building built right to the street alignment and to assist in view retention from 223 President Avenue.

· The 1.5m setback to the south west corner to be extended to ground level to provide a set back for 141 The Grand Parade. This provides amenity benefits to the present building and less constraints on redevelopment of that site.

· Planting along the southern boundary to be provided to soften the building from 141 Grand Parade. Planting along the west boundary to be a minimum of 1 m wide to address the concerns of the Urban Design Panel and to soften the building from 223 President Avenue.

· Car parking spaces at ground level to be screened from view from the street. This may necessitate a reduction in the retail floor space.

· Basement car park to be reduced in size where possible to provide deep soil planting. The number of car spaces should be based on Mr Shiels’ interpretation of the Parking Code.

Directions

10 The Court directs that:

1. The applicant is to consider these findings and advise within 48 hours whether it will proceed with the current plans or seek leave to amend the plans. If leave is sought an agreed timetable for amendments should be filed by 22 November 2006.

2. Liberty to restore at 48 hours notice.

___________________

Annelise Tuor
Commissioner of the Court