Brunskill McClenahan v Ku-ring-gai Council

[2005] NSWLEC 592

Land and Environment Court

of New South Wales

CITATION:

Brunskill McClenahan v Ku-ring-gai Council [2005] NSWLEC 592

PARTIES:

APPLICANT
Brunskill McClenahan and Associates Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10828 of 2005

CORAM:

Brown C

KEY ISSUES:

Development Application :- subdivision of an existing lot into 2 lots - carparking - disabled access - loading and unloading facilities

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Development Control Plan 14
Ku-ring-gai Development Control Plan 43

DATES OF HEARING:

10/10/05

EX TEMPORE JUDGMENT DATE:

10/10/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J. Jagot, barrister
SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Mr P. Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 October 2005

10828 of 2005 Brunskill McClenahan and Associates Pty Limited v Ku-ring-gai Council

JUDGMENT

1 This is an appeal against the refusal by Ku-ring-gai Council (the council) of DA 741/04 for the subdivision of an existing lot at 296 Pacific Highway, Lindfield (the site) into two lots.

2 The site is located within a local neighbourhood shopping centre at the intersection of Beaconsfield Parade and Pacific Highway, Lindfield and is currently occupied by two brick buildings. The building fronting the Pacific Highway is 1 and 2 storeys and is used as the Lindfield Post Office. It is currently leased from Telstra to Australia Post. The building currently operates with six permanent casual staff.

3 The building to the west of the Lindfield Post Office is a 2 storey telephone exchange operated by Telstra. The telephone exchange is an unmanned facility with no permanent staff operating from the site and only service technicians stopping to undertake occasional connection upgrades.

4 The buildings are currently serviced by an access driveway that runs through the middle portion of the site providing access to informal carparking for both sites. Access is provided from Beaconsfield Parade.

5 The proposal involves the subdivision of the site into two separate lots. No change of the current uses within the buildings is proposed. The subdivision plan describes the proposed lots as Lot 10 and Lot 11 (see Attachment 1). Lot 10 will contain the telephone exchange building and a smaller, single storey ancillary brick building, and will have an area of 981.1 sq m. Lot 11 will contain the Lindfield Post Office building and have a total site area of 598.1 sq m.

6 Access is proposed to the rear of each building along the existing driveway and will be formalised as a Right of Way with reciprocal rights. Turning facilities are also provided with reciprocal rights of way.

7 The site is within a 3(b)– B2 Business zone under the Ku-ring-gai Planning Scheme Ordinance (the Ordinance). Clause 30(C) provides requirements to be satisfied for development within a business zone. Clause 30(B)(2) provides floor space ratio (FSR) requirements, although there was no dispute that the buildings satisfy the maximum 1:1 FSR requirement.

8 Ku-ring-gai Development Control Plan 14 (Development in Business Zones) (DCP 14) applies to the site although the proposal does not involve any building works or change of use. Clause 11 provides identical requirements to cl 30(C) of the Ordinance.

9 Ku-ring-gai Development Control Plan 43 (Car Parking Provision) (DCP 43) applies to the site. Based on the floor area the building on Lot 11 would require 14 carparking spaces. As Lot 10 is a purpose built telecommunications facility with no permanent staff and considering the likely considerable expense required in relocating the facilities within this building, I did not understand the council to be overly concerned over the provision of carparking for this building.

10 The council filed a Statement of Issues containing five separate issues. These can be generally grouped into the following areas:

1. The inadequacy of the on site carparking and the consequent impact on local parking facilities.
2. The inadequacy of disabled access.
3. The inadequacy of loading/unloading facilities.
4. The proposal was not in the public interest.

11 The council provided written evidence from Ms Robyn Pearson, the executive planner with the council, and the applicant provided written evidence from Mr George Karavanas, a town planner. The Court also had a view of the site on the morning of the hearing.

12 Mr Karavanas states that as the subdivision does not change the existing building uses and in the event of any future redevelopment a development application would be required. On this basis, the issues that the council raises over carparking, disabled access and loading and unloading facilities are best addressed at this stage. In general terms, he states that the proposed subdivision of the land, without any change to the existing uses, does not generate the need for a revision of the carparking, access, loading and unloading facilities.

13 Ms Pearson maintains that there should be compliance with DCP 14 and DCP 43 notwithstanding there is no change proposed to the current operation.

14 In considering these issues raised by the council, I can comfortably accept the evidence of Mr Karavanas. In my view the proposal, i.e., the subdivision of the site, does not generate the need to reassess the carparking, access and loading/unloading facilities. There was no suggestion that the uses at the site were unauthorised, operating without approval or not inaccordance with any approval even though the sites may not necessarily comply with the current planning controls. This is not an usual occurrence for older buildings.

15 From the submissions of Mr Rigg, for the council, it appears that the council’s concerns and those of Ms Pearson also relate to the potential prejudice of any future redevelopment of Lot 11 by the proposed subdivision, although this was not specifically raised as an issue in these proceedings.

16 On this matter, I am not convinced that the redevelopment of Lot 11 will in any way be prejudiced by the proposed subdivision. These concerns are clearly premature. No evidence was produced to suggest any redevelopment was planned and based on the evidence on the existing lease arrangements any redevelopment is not likely within 10 years. If Lot 11 is ultimately to be redeveloped then the matters raised by the council are constraints that will need to be addressed as part of that redevelopment.

17 The requirements in cl 30C of the Ordinance and cl 11 DCP 14 have limited relevance in this particular instance as they relate principally to the erection of new buildings in the business zones. In this circumstance, I am satisfied that the clauses contain no matters that would lead me to the conclusion that the development application should be refused.

18 At the conclusion of the hearing Ms Jagot, for the applicant requested that the Court reserve the question of costs as Mr Rigg was not in a position to deal with this matter at the time. In my view, an Order reserving the question of costs is appropriate in the circumstances.

19 The orders of the Court are:

1. The appeal is upheld.
2. DA 741/04 for the subdivision of No. 296 Pacific Highway, Lindfield into 2 lots is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 1, 2, 8, A & C.
4. Costs are reserved.

___________________

G T Brown
Commissioner of the Court
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