Bluestone Property v North Sydney Council - [2006] NSWLEC 449

Land and Environment Court

of New South Wales

CITATION: Bluestone Property v North Sydney Council [2006] NSWLEC 449

PARTIES:
Applicant:
Bluestone PropertyDMC Pty Ltd
Respondent:
North Sydney Council

FILE NUMBER(S): 11585 of 2005

CORAM: Roseth SC

KEY ISSUES: Development Application :- consistency with zone objectives and council policies; social and economic impact

CASES CITED: Nicholas Dunn & Associates P/L v North Sydney C [2005] NSWLEC 551;
International Development & Construction P/L v North Sydney C [2005] NSWLEC 691;
Schaffer Corporation Ltd v Hawkesbury CC [1992];
Gillespies v Warringah Council [2002] NSWLEC 224;
Azavour Pty Ltd v City of Mandurah & Anor [2002] WASCA 320

DATES OF HEARING: 15/07/2006, 16/07/2006, 19/07/2006, 22/06/2006 and 20/07/2006

EX TEMPORE JUDGMENT DATE: 07/20/2006

LEGAL REPRESENTATIVES: Applicant:
Mr C McEwen, SC instructed by Mr V Conomos of Pike Pike & Fenwick
Respondent:
Ms H Irish, barrister instructed by Ms J Wauchope of Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

20 July 2006

11585 of 2005 Bluestone Property DMC Pty Ltd v North Sydney Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by North Sydney Council (the council) of a development application for the demolition of the existing building and the erection of a mixed residential and non-residential development on lot 13 DP 8089819, lot 1 DP 846797 and lot 1 DP 936507, known as 450-476 Miller Street and 11 Amherst Street, Cammeray.

The site

2 The site is on the southwest corner of Miller and Amherst Streets. It is flat and rectangular and has an area of 6,815m2. Apart from Miller and Amherst Streets, it has a frontage to the Warringah Expressway. To the west it shares a boundary with 9 Amherst Street (a group of townhouses) and 7 and 8 Tarella Place (two single dwellings in one ownership).

3 Directly opposite, on the northern side of Amherst Street, are single dwellings. At the corner of Miller, Amherst and Abbott Streets is a three-storey apartment building. To the north of the corner along Miller Street is the Cammeray Village containing mostly two-storey buildings. There is, however some four-to-five storey new development as well. The site forms part of the Cammeray Village

The proposal

4 The applicant proposes to demolish the existing buildings and to erect a mixed development comprising four separate buildings (A, B, C and D) around a courtyard. Building C is entirely non-residential, with four levels above basement. The top level is set back and intended to be used for a childcare centre. Buildings A, B and D contain non-residential (mainly retail) at ground level and 47 apartments on three levels above. The top levels are recessed on all buildings.

5 There are three basements. Basement 1 contains a 1,500m2 supermarket and 32 car spaces. Basement 2 contains a fruit market of 800m2 and parking for 93 cars. Basement 3 contains parking for 91 cars.

6 The applicant lodged the application in March 2005 and amended it several times…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 449
Decision Date: 20/07/2006

CaseChat Overview and Summary

In Bluestone Property DMC Pty Ltd v North Sydney Council, the applicant sought to appeal against the refusal by North Sydney Council of a development application for the demolition of the existing building and the erection of a mixed residential and non-residential development on a site at Cammeray. The site, located on the southwest corner of Miller and Amherst Streets, was zoned Residential D (Neighbourhood Business). The applicant proposed to demolish the existing buildings and to erect a mixed development comprising four separate buildings around a courtyard. Building C was entirely non-residential, with four levels above basement, including a childcare centre on the top level. Buildings A, B and D contained non-residential (mainly retail) at ground level and 47 apartments on three levels above. The top levels were recessed on all buildings. There were three basements, containing a supermarket, a fruit market, and parking for 216 cars. The council referred the proposal to the Urban Design Advisory Panel, which did not support the application. The proposal was discussed at a public meeting in November 2005, at which a number of residents spoke raising concerns with height, building height plane, scale, the supermarket, parking, traffic and basement excavation. The applicant lodged the appeal in December 2005. The council submitted a Statement of Issues raising ten issues. In her submission at the end of the hearing the council’s advocate, Ms H Irish identified the following as the remaining issues: · Inconsistency with zoning objectives · Parking and traffic generation· Building height considered in the context of the neighbours’ amenity· Excavation The court considered the four issues identified by the council. It found that the proposal was inconsistent with the zoning objectives in two respects. Firstly, the supermarket and the fruit market were inconsistent with the objective to permit a range of small-scale businesses which serve local needs, and to encourage active street life. Secondly, that part of the fourth floor in Building C that can be seen from the centre of the courtyard in 8 Tarella Place. The applicant had indicated that it would prefer to amend the proposal by removing the supermarket and fruit market to a refusal. The amendment, which would occur all underground, would be easily achieved. The removal of these two elements would also resolve the council’s and the objectors’ main issue with the application. The proposal also generated more traffic than Amherst Street could absorb without traffic calming. However, the court found that the requirement for traffic calming would not justify refusal of the application. The main reason for this was that there are unavoidable uncertainties about future traffic calming that do not sit easily with the requirement for certainty in development consents and their conditions. The court found that the proposal was inconsistent with the building height control and that the proposal sought to excavate most of the site to a depth of about 13m, which brought it into conflict with the objectives to prevent the excavation of sites for building works, other than for garages and car parking. The court concluded that the proposal was inconsistent with zoning objectives in two respects and that the building height and excavation would require amendment. However, the court found that the proposal would be acceptable if the following amendments were incorporated:· Remove supermarket and fruit market and all ancillary spaces, without replacing them with other uses; · Set back the western side of the fourth floor of Building D, for the length of Apartments D04, D05 and D06, by 4.5m from the face of the building. Provide a 1.3m wide privacy setback on the balconies (ie a zone in which people cannot stand). (The above dimensions are based on the applicant’s Exhibit K.) · Reduce the number of basement levels from three to two. · Reduce the non-residential parking to 70 spaces. The applicant presented amended plans that incorporated the above amendments, without the need for further evidence. The council did not support either the objections or the proposed further amendments in the comment. Mr Chambers reported that the amended plans complied with the Court’s findings. Nothing therefore stood in the way of approval of the proposal. The appeal was upheld in relation to the amended drawings.

Orders