Carisma Constructions Pty Limited v Liverpool City Council

Case •

[2005] NSWLEC 539

•

09/28/2005

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION:

Carisma Constructions Pty Limited v Liverpool City Council [2005] NSWLEC 539
PARTIES:

APPLICANT:
Carisma Constructions Pty Limited
RESPONDENT:
Liverpool City Council
FILE NUMBER(S):

11598 of 2004
CORAM:

Watts C at 1
KEY ISSUES:

Development Application :- Relationship with local heritage item
and urban design
LEGISLATION CITED:

Liverpool Local Environmental Plan 1997, (LLEP)
Liverpool City Council Development Control Plan No 30 - City Centre, (DCP30)
Liverpool City Council Development Control Plan No 3 - Car parking and Service Provision, (DCP3)
State Environmental Planning Policy 65 - Design quality of residential development, (SEPP65)
Draft SEPP 66 Integrating Transport and Land Use, (DSEPP)· Greater Metropolitan Regional Environmental Plan No.2 - Georges River Catchment, (GMREP)
Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING: 12/05/2005, 06/07/2005 and 28/09/2005
EX TEMPORE JUDGMENT DATE:

09/28/2005
LEGAL REPRESENTATIVES:

APPLICANT:
Mr C W McEwen, SC, instructed by Mr P Erickson, solicitor
SOLICITORS:
Meyer Solomon & Associates

RESPONDENT:
Mr D Baird, solicitor
SOLICITORS:
Maddocks


JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

28 September 2005

11598 of 2004 - Carisma Constructions Pty Limited v Liverpool City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Liverpool City Council, (the council) to refuse the original development application. The amended development application is to demolish the two (2) existing non-heritage listed buildings known as No 2 Lachlan Street and No 15 Bigge Street and associated buildings; (except for the heritage listed bungalow at No 13 Bigge Street); and to erect a part eight-storey and part fourteen-storey residential flat building, containing 39 x 2 bed units and 54 x 3 bed units and four one-bed units (97 units); to excavate and construct a three-level basement car park for 117 cars, at Lot 1, 2, 3 and 5, DP 13930, on the corner of Bigge and Lachlan Streets, Liverpool.


2 I visited the land in company with the parties on 12 May 2005 and directions were given. Further directions were given on 6 July 2005.


3 I have concluded that the amended development application when considered under the heads of s 79C of the Environmental Planning and Assessment Act 1979 should succeed.

The land

4 The land is situated on the southwestern corner of Bigge and Lachlan Streets. It is generally rectangular in plan shape with a 60m frontage to Bigge Street and a 45m frontage to Lachlan Street, and an area of 2,933m2. This site area is slightly less than required under the planning instruments for a masterplan site, which requires 3000m2. [Note: Exhibit 2 DCP30 p 16 cl 2.12.14]


5 The land is relatively flat with a slight fall to the southwest. It is not affected by the 1% flood event. There is no significant vegetation on the land. Erected on the land are two single-storey dwellings and outbuildings and a heritage listed bungalow.


6 The locality of the land is predominantly residential in character and forms part of the northern precinct of the Liverpool CBD. The general built form in the area is that of predominantly single dwellings, with some strata title walk up flats. Nearby the council has consented to eight-storey and ten-storey residential flat buildings and the character of the area is changing.


7 To the north of the land is the Hume Highway, which forms the edge of the CBD, and further to the south, is the inner core of the Liverpool CBD, i.e. the commercially zoned section of the CBD.

Relevant planning controls

Liverpool Local Environmental Plan 1997, (LLEP)

8 Under the provisions of the LLEP the land is zoned 2(d) Residential - High density and the proposal is permissible with consent.


9 Under the LLEP the objectives of the Plan are found in Pt 1, cl 2. The objectives of the 2(d) zone are in Pt 39 cl 4. Part 12, cl 71 of the LLEP sets out the heritage provisions objectives of the heritage provisions. Relevant clauses of the LLEP include:


· Clause 40 - general restrictions on development;


· Clause 41 general considerations for residential development;


· Clause 41A(6) - residential flat buildings.


· Clauses 72 – relates to restrictions of heritage items; and


· Clause 76 relates to demolition.

10 Other planning instruments that apply to the land include:

Liverpool City Council Development Control Plan No 30 - City Centre, (DCP30)

Liverpool City Council Development Control Plan No 3 - Car parking and Service Provision, (DCP3)

State Environmental Planning Policy SEPP 65 - Design quality of residential development, (SEPP65)

Draft State Environmental Planning Policy 66 Integrating Transport and Land Use, (DSEPP)

Greater Metropolitan Regional Environmental Plan No.2 - Georges River Catchment, (GMREP)

The proposal and its history

11 The original development application No 498/04 was lodged with the respondent council on 5 September 2004. It has since been amended and it is now proposed to demolish the existing dwellings and outbuildings except for the heritage listed bungalow; to erect a part eight-storey and part fourteen-storey residential flat building, containing ninety-seven (97) residential units; to conserve the existing bungalow and to excavate and construct a three-level basement car park for one hundred and seventeen (117) cars at the land.


12 The proposal was originally for a part eight-storey and part twelve-storey residential building and to demolish the existing heritage building.


13 The proposal would be “L” shaped in plan around the existing heritage item on the corner of Bigge and Lachlan Streets and conforms to the recently adopted masterplan for the land.


14 The proposal is described in plans prepared by Viscona Pty Limited and the height measured to the parapet level would be 63.7m AHD for the fourteen-storey component and to the parapet level of the eight-storey component would be 46.5m AHD.


15 The floor space ratio is nominated as 3.83:1. However, there are no planning controls relating to this aspect of the design.


16 The proposal would be setback a minimum of 8.45 m to the Bigge Street, and to the west the setback is 3.2m. It would be setback a minimum of around 9.25m from the boundary with the adjoining residential buildings.

Notification

17 The original development application was notified to nearby owners and occupants on 24 September 2003 and placed on public exhibition for 14 days and the council received no submissions. The amended application was also notified and the council received two submission, [Note: Exhibit 3]. Submissions were received from Ms B Streitles, on behalf of the Brain Injury Rehabilitation Unit that occupies the dwelling to the south of the land at No 17 Bigge Street, and from Mr S Dobell-Brown in relation to the heritage item.


18 The council prepared a chronology concerning the original application:


· 9 September 2003: Application submitted to the council, accompanied by heritage report by Mr G Taylor.


· 25 September 2003: Design Review Panel meeting held regarding application.


· 15 January 2004: The council’s heritage adviser Mr G Brooks wrote to the council advising of concerns regarding the demolition of the heritage item.


· 2 June 2004: Letter sent to applicant from the council raising concerns regarding demolition of heritage item and non-compliance with Development Control Plan 30 - City Centre.


· 17 June 2004: Second heritage report by Mr G Taylor submitted by applicant regarding demolition of the heritage item.


· 27 June 2004: Heritage report by Mr G Patch of Archnex submitted by the applicant.


· 22 July 2004: Further report provided from the council's heritage adviser, Mr G Brooks.


· 12 August 2004: Application reported to the council's Independent Hearing and Assessment Panel, recommending refusal by council officers.


· 12 August 2004: Independent Hearing and Assessment Panel recommend refusal of the application as per the recommendation of the council town planning report.


· 13 September 2004: The council resolved to refuse the original development application, as per the council’s town planning report.

The council’s decision

19 By notice dated 18 October 2004 the council refused the application for seven reasons that are now reflected in the issues, [Note: Exhibit 2, Tab 1].

The hearing

20 The appeal was filed on 20 December 2004.


21 At the hearing the court received written evidence on behalf of the respondent council from:


· Mr B Edgar, heritage consultant.

22 On behalf of the applicant evidence was given by:


· Mr R Staas, heritage consultant;


· Mr G Patch, heritage consultant; and


· Mr M Harrison, architect.

23 Mr K Burrell, town planner was the Court-appointed expert.


24 Mr A Coburn, town planner of Liverpool City Council prepared the statement of basis facts, dated 23 February 2005, that was used in the preparation of this judgment.

The issues

25 On 23 February 2005 the council filed a statement of issues:

      Amenity and character

1. Whether the proposal satisfies the objectives of the Liverpool Local Environmental Plan 1997 (LEP) by improving and protecting the amenity of the City of Liverpool.

      Planning Controls

· Clause 2(e) LEP.


· Clause 39(4) LEP


· Clause 40 of the LEP.


· Design quality principle 1 of SEPP 65.


      Height

      Master plan
      Particulars:
      Planning Controls

· Section 4.3 DCP 30.


· Section 2.12.14 DCP 30.


· Clause 47(a) of the LEP.


      Heritage
      Particulars:
      Planning Controls

· Clause 2(f) LEP.


· Clause 71 LEP.


· Section 4.18 DCP 30.

      Solar access
      Planning Controls

· Section 4.8 DCP 30.


· SEPP 65.


      Environmental Controls
      Planning Controls

· Section 4.19 DCP 30.

      Building Lines and Setbacks
      Particulars:
      Planning Controls

· Section 4.5 DCP 30.


· Part 1 Residential Flat Design Code.

      Building Flexibility

      Planning Controls
      • Section 4.7 DCP 30.

      Disabled Access
      Planning Controls

· Section 4.7 DCP 30.

      Waste Management Plan
      Planning Controls

· Liverpool Development Control Plan 46.

      Public Interest
      Planning Controls

· Section 79C Environmental Planning and Assessment Act 1979.

26 Heritage and urban design emerged as the salient issues.

The evidence and findings
27 On 30 August 2005 Mr M Harrison provided a written response to objections in relation to amended proposal, [Note: Exhibit A]. He addressed the many concerns expressed by Ms B Streitles of No 17 Bigge Street, the neighbour to the south, and to the impact on the heritage item by Mr S Dobell-Brown, [Note: Exhibit 3].

      1. The crowding effect of the Bigge St building preventing natural light with consequent shadows reducing the effects of sunshine and warmth.
          Response: The degree of overshadowing in midwinter by the amended design is similar to the original DA, which received no objections. The Liverpool planning instruments provide for high density in the area including the subject site and the objector's site. The area is rapidly transforming from single house forms to very large buildings. Inevitably, there will be a change to sunlight access to 17 Bigge St under the planned future character of the area. In fact the Liverpool Centre DCP calls for tallest buildings closest to and parallel to Bigge St. The subject DA provides for the tallest building to be setback as far as possible from Bigge St. The future of 17 Bigge St is to be amalgamated with adjacent properties to the south and be developed for high density residential development. Even if not amalgamated, under DCP30, 17 Bigge St is likely to be developed at higher density of 4-8 storeys (ie. Housing 2 Building Type 6 for sites less than 25m wide). An example development in accordance with DCP 30 would be 8 storeys with 2 dwellings on each floor with each dwelling facing Bigge St as well as the rear. Such a development would obtain 3 hours sunlight 9am-12noon for the street face of each dwelling.

28 I accept the thrust of Mr Harrison’s comment in regard to overshadowing. However, when one takes into account structural elements of any building and reflectivity of glass, the effective sunlight on an eastern face of a building on No 17 Bigge Street would be much less than 3 hours between 9am and 12 noon. However, No 17 Bigge Street is within a redevelopment area and some overshadowing must be expected. The design has attempted to limit overshadowing around lunchtime by placing the lower the eight-storey building close to the Bigge Street frontage. I would not refuse the development application for this reason.

      2. That the level of noise produced from the high-density housing that will surround 17 Bigge St will exceed recommended noise levels for residents of a single storey freestanding house.
          Response: Noise is regulated by Council for all residents.

29 I accept that evidence of Mr Harrison and I would not refuse the development application for this reason.

      3 . That the site plan identifies 17 Bigge St as a brick cottage when it is a fibro cottage. This means it will be at risk of damage from high density development, particularly when close to the northern boundary of our property and the effect of excavation.
        This may result in:

· Changes to drainage and how water moves across our property


· Movement and instability of the building piers of our house. The development of cracks in the walls and ceiling arising out of building movement beyond what is caused by general weather changes. The house has no current problems or evidence of building movement.


          Response: This response is in order of the dot points:

· Standard practice is that each property is responsible for its own drainage to the public street drainage system. 13-15 Bigge St will not cause any drainage impact on 17 Bigge St. The existing condition of 13-15 Bigge St is that it slightly slopes away from 17 Bigge St.


· A Development Condition can be imposed with the development consent that requires a structural assessment of 17 Bigge St prior to and post construction of 13-15 Bigge St and to require any rectification works.

30 I accept that evidence of Mr Harrison. The drainage proposals contained in Exhibit E would ensure that surface water and drainage within the boundaries of the land would be contained by the proposed stormwater system.

      4. The increased traffic flow in Bigge St ...
          Response: The vehicle entry to the proposed development is from Lachlan St. The Liverpool Centre DCP indicates the vehicle entry should be from Bigge St. However, it is argued that the proposal is a better general solution and also would have less impact on 17 Bigge St. The Liverpool planning instruments envisage an increased density across the City Centre generally, and in the Bigge St / Lachlan St locality specifically. As such, the Liverpool City Centre Planning Instruments also envisage and accept a consequent increase in traffic generation.

31 I accept that evidence of Mr Harrison. I assume that the council took into account in planning for a higher density in this part of the Liverpool CBD the increased traffic flows. I would not refuse this development application for this reason.

      5. That the house at 17 Bigge St has been ignored when urban planning and design issues were being considered in the development of high density housing options for this area of Liverpool. It is now landlocked.
          Response: The SEE by Rhodes Haskew and Associates has reviewed (see pages 28 and 29 of the SEE) a possible building footprint of 17 Bigge St amalgamated with properties to the south as envisaged by the controls in DCP30. There are a variety of possible building footprints.

          My understanding from the developer of 13-15 Bigge St is that the owner of 17 Bigge St was approached several times by the developer of 13-15 Bigge St and that there was no response. The time for negotiation has thus passed.

32 I accept the thrust of the evidence of Mr Harrison in this regard and would not refuse the application for this reason.

      6. That a property valuation provided by Horton Corkery and dated 24.6.2005 has identified limited sale options, as the property will only be of value to a property developer.
          Response: It is expected under the current Liverpool planning instruments that major redevelopment will occur in the area including 17 Bigge St.

33 I accept that evidence of Mr Harrison and would not refuse the application for this reason.

      7. In relation to the heritage item, the following matters should be further addressed:

· Alter the colour of the new building to at least reduce the white and cream.


· Propose a sustainable re-use/function.


· Materials in the new buildings should adopt similar materials of the cottage: brickwork colours and shapes, wrought iron features, and sculptural forms (e.g. chimney and gables).


· A physical and visual connection should be made between the cottage and the new building to support a function connection.


          Response: Council's heritage expert, Graham Brooks, has written in support of the amended plans. The use of the cottage will be subject to a separate DA.

34 I accept that evidence of Mr Harrison supported by Mr Brooks. I have carefully considered the schedule of finishes showing the proposed materials samples in Exhibit O and the coloured elevations in Exhibit P and would not refuse the application for this reason.


35 I also note that Mr Coburn, town planner of Liverpool City Council, has supported the evidence of Mr Harrison. He recommended that the council enter into a consent award.


36 The proposal is within the building envelope for development under the masterplan formulated under DCP30.


37 Having considered the proposal under the heads of s 79C of the Environmental Planning and Assessment Act 1979, I find it satisfactory and I grant development consent subject to conditions.

Planning principle – height bonus

38 The outcome of these proceedings was facilitated by the mutual efforts of the parties in recognising that by applying a flexible planning approach in the assessment of the proposal, the heritage building could be preserved. In this case, the height of the major building was increased by two floors, without any significant planning or environmental detriment, in order to offset the loss of developable site area brought about by retaining the heritage building and its appropriate curtilage. Also the Court gave some regard to the cost of conserving the heritage building in permitting this height ‘bonus’.


39 I note the undertaking by the respondent council to advertise the adoption of the masterplan in accordance with cl 2.12.14 para 6 p 17 of the DCP30. I am satisfied this may be pursued following the decision in respect of this appeal.


40 For the above reasons, the appeal is upheld by consent.

Conditions

41 The conditions are those in Exhibit 1 as amended during the hearing.

Consent orders
42 The consent orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 498/04 as amended, to demolish the two (2) existing non-heritage listed buildings known as No 2 Lachlan Street and No 15 Bigge Street and associated buildings; (except for the heritage listed bungalow at No 13 Bigge Street); and to erect a part eight-storey and part fourteen-storey residential flat building, containing 39 x 2 bed units and 54 x 3 bed units and four one-bed units (97 units); to excavate and construct a three-level basement car park for 117 cars, at Lot 1, 2, 3 and 5, DP 13930, on the corner of Bigge and Lachlan Streets, Liverpool, is approved subject to Conditions 1 to 112 in Annexure A.

3. No costs are awarded.

4. The exhibits with the exception of Exhibits B, C, D, E, F, G, H, O and 1 are returned.

S J Watts
Commissioner of the Court
sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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