Better Buildings Pty Ltd v Hawkesbury City Council

[2005] NSWLEC 711

Land and Environment Court

of New South Wales

CITATION:

Better Buildings Pty Ltd v Hawkesbury City Council [2005] NSWLEC 711

PARTIES:

APPLICANT
Better Buildings Pty Ltd

RESPONDENT
Hawkesbury City Council

FILE NUMBER(S):

10409 of 2005

CORAM:

Hussey C

KEY ISSUES:

Appeal :- Commercial/residential development - zone objectives - sufficiency of parking - parking amenity - public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

18/10/2005

 
DATE OF JUDGMENT: 

10/18/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

RESPONDENT
Ms C Schofield,
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 October 2005

10409 of 2005 Better Buildings Pty Ltd v
Hawkesbury City Council
JUDGMENT

The following decision and orders were handed down extempore on 18 October 2005. Some minor alterations and additions have been made in the interests of clarity and completeness.

Background

1 This appeal was lodged against council's deemed refusal of a s 96 application to modify a consent for a mixed use commercial/residential development at 8-14 Bosworth Street, Richmond. The approved development is 3 storeys, and was amended to contain 25 residential units, 14 commercial units, 10 of which may be adapted for residential use.

2 The development also provided for 90 off-street parking spaces into basement levels located below the proposed mixed-use commercial and multi-unit housing development.

3 The proposed modifications also originally included a reduction in the number of adaptable commercial/residential units from 10 to 4 and a consequent increase in the number of straight residential units. That is, the proposal involved 31 residential units, 4 commercial units and 4 adaptable commercial/residential units.

4 The associated conditions sought to be modified relate to the deletion of one of the two levels basement parking, rearrangement of the internal layout parking to provide a total of 63 car spaces and relocation of the garbage store and BBQ area on the site.

5 For the appeal, a number of issues were identified, which can be summarised as follows:

• satisfaction of the zone objectives for the mixed-use development;
• sufficiency of parking;
• parking amenity;
• public interest;

6 The parties agreed to Mr L Fletcher being the Court-appointed expert (CAE) for planning and he prepared a detailed assessment of the proposal, resulting in his conclusion that the proposal merited conditional consent.

7 After consideration of this conclusion, the council agreed to enter into consent orders for the condition modifications.

The appeal

8 The appeal was conducted by way of an on-site hearing and Court had the opportunity of viewing the site and surrounds in the company of the parties, together with Mr Fletcher.

9 According to Mr Fletcher's assessment of the proposal, the various unit mix and associated carparking requirements can be determined in accordance with council’s DCP. He considers the initial requirement for 90 spaces excessive and relies on the provisions of the Hawkesbury Development Control Plan, which specifies car spaces for residential development - depending on the size of the dwelling, and commercial car spaces calculated at 1 space 30 sq.m. But he notes that s 2.5.1 dealing with residential carparking contains the following note:

Consideration will be given to reducing carparking rates for residential development in commercial zones, particularly for ‘shoptop’ housing."

10 In applying these DCP provisions, Mr Fletcher has considered the practice of Council that only one residential space per residential unit for mixed developments in commercial zones is required. By reference then to the revised development layout, which provides an additional 3 adaptable units on the ground floor of the proposed development and that the whole of the ground floor has the potential for commercial use, Mr Fletcher then calculates that:

the carparking requirements of the modified development under the "Interim Policy Relating to Shoptop Housing Development in Commercial Zones" would be 59 car spaces if the seven nominated adaptable units remained in residential use, or 70 spaces if those seven adaptable units were in fact all used for commercial purposes.

11 Considering the discretion allowed in the DCP, Mr Fletcher says that the logic of reduced parking requirements for the residential component of mixed developments is to recognise their proximity to public transport and other services, leading to likely reduced parking demand. Also it recognises the potential for shared use of parking facilities between commercial and residential occupants.

12 Accordingly, Mr Fletcher says that the latest modification proposal is more consistent with council’s stated desire, than the original approved development in that it provides at least the potential for the whole of the ground floor to be used for commercial purposes. Therefore he considers it reasonable to rely on the provisions of the Interim Policy and council’s practical determination of parking spaces, which results in the proposed 66 on-site carparking spaces being adequate. He also notes that a s 94 contribution has been paid for other carparking spaces, which further support his opinion that the modified parking arrangements are satisfactory.

13 Insofar as another issue was raised regarding the amenity for future occupants, this mainly related to the adequacy and arrangement of carparking spaces within the development. According to Mr Fletcher's assessment, the revised carparking amount is satisfactory but he suggests that the carparking layout be determined initially so that any inconvenience between the parking demand of the residential users and commercial units can be minimised.

14 This suggestion has been accepted by council, and consideration has been made to the tentative carparking layout, which can be covered by a condition of consent. I accept these arrangements are satisfactory, as covered by the consent orders.

Conclusions

15 Having considered the evidence, and undertaken a view I rely on the detailed assessment of Mr Fletcher and his conclusion that the s 96 modification should be allowed, by way of the Consent Orders.

16 Mr Fletcher's assessment refers to the relevant planning framework for the site where this mixed-use development is permissible with consent under Council’s LEP. As this type of use allows a degree of flexibility in unit layout, together with associated carparking provision, I am now satisfied that the relevant objectives of the planning controls for this mixed-use development are satisfied, so as to allow the agreed consent orders.

Court orders

17 By consent the Court orders are:

1. The appeal is upheld.

2. The application lodged pursuant to s 96 of the Environmental Planning and Assessment Act 1979 on 11 March 2005 with respect to the premises known as 8-14 Bosworth Street, Richmond, is approved and Development Consent No. DA0813/03 is modified so that it is subject to the conditions set out in Annexure A hereto.

3. The Court notes the agreement between the parties that each party shall bear its own costs of the proceedings.

___________________
R Hussey
Commissioner of the Court
rjs