Cuzeno v Hurstville City Council

[2005] NSWLEC 189

Land and Environment Court

of New South Wales

CITATION:

Cuzeno v Hurstville City Council [2005] NSWLEC 189

PARTIES:

Applicant:
Cuzeno Pty Ltd

Respondent:
Hurstville City Council

FILE NUMBER(S):

11539 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Development Control Plan - Development Standards :-

DATES OF HEARING:

12/04/2005

 
DATE OF JUDGMENT: 

04/22/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr M Ball

Respondent:
Mr P Rigg, solicitor of Deacons Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

22 April 2005

11539 of 2004 Cuzeno Pty Ltd v Hurstville City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Hurstville Council (the council) of a development application to demolish the existing buildings and erect a residential/commercial development on lots 1, 2, 3, 4 and 5 DP 19301, lot 134 DP 12807 and lot 2 DP 13146, known as 166-178 Stoney Creek Road, Beverly Hills.

The site

2 The site is near the corner of Stoney Creek Road and King Georges Road. It has an area of 3,124m2 and frontages to Stoney Creek Road and Lee Avenue. It now accommodates two single-storey retail buildings and a large vacant area formerly used as a service station.

3 To the south, across Stoney Creek Road, is the Beverly Hills Public School. To the north are residential properties on Lee Avenue and Beresford Avenue. To the west and northwest is the Beverly Hills commercial precinct.

The proposal and its history

4 The applicant proposes to demolish the existing buildings on the site and to construct a mixed-use development containing 410m2 of retail area, 178m2 of warehouse area, 46 dwellings and car parking for 127 cars on two basement levels. The building is partly four-storey, partly three-storey, with a pair of semi-detached two-storey dwellings at the northeast corner.

5 The applicant submitted the development application in April 2004. Following notification, the council received five objections including a petition with eleven signatures. The council did not accept the recommendation of its planning staff, which recommended approval, and refused the application in December 2004. The applicant lodged the appeal in December 2004.

Relevant planning instruments and policies

6 Local Environmental Plan 1994 zones the site 3(C) Business centre. The proposal is permissible as long as the residential component is attached to business uses. It was common ground that the proposal fulfilled this requirement. Development Control Plan 12 – Beverly Hills (DCP 12) establishes detailed controls over the site, of which the height controls are particularly relevant to this appeal.

The issues

7 The council submitted a Statement of Issues containing three issues. However, at the commencement of the hearing it became clear that there was only one major issue, ie non-compliance with DCP 12.

The objectors’ evidence

8 The Court heard the objections of several residents during its visit to the site. The two major concerns were that the proposal:

· would increase traffic and decrease parking availability; and

· did not comply with the height limits set by DCP 12.

9 The council did not support the concern about traffic and parking and provided no expert evidence. The second concern of the residents was the main issue in the case.

Non-compliance with DCP

10 There are two significant non-compliances. First, the building exceeds the maximum number of storeys and, second, it exceeds the maximum building depth of 24m.

Building height

11 DCP 12 establishes two height controls for the site. A four-storey limit covers the allotment at the western end of the site (ie one of seven allotments comprising the site), while a two-storey limit covers the other six allotments. The four-storey portion of the proposed building extends over that part of the site that has a two-storey limit. The remaining part of the building along Stoney Creek Road is three-storey. The three-storey section is located over part of the site that has a two-storey limit. The only part of the proposal that complies with the height controls is the northeast corner containing two of the 46 dwellings.

12 Part of the four-storey section is technically five-storey because the basement carpark is 1.5m above ground and is counted as a floor under the council’s controls,. I do not think that this is a serious breach, since the five-storey section is in the rear and would not be readily perceived from public areas. The four-storey section that extends into the area where DCP 12 has set a two-storey limit is also not immediately noticeable to passers-by since most of them would not be aware of the exact line in the DCP between the two height controls. However, the long three-storey section in an area where DCP 12 limits buildings to two storeys would be obvious to the public. Anyone with the slightest familiarity with the DCP would know that it was in breach of the height control.

13 The Court-appointed planning expert was Mr G Shiels, a town planner. He agreed with the applicant that a three-storey building facing Stoney Creek Road was acceptable. However, he also pointed out that it was a significant non-compliance with the DCP. He thought that, if this application were approved, the council would have difficulty in imposing DCP 12 on future developments.

14 In Stockland v Manly Council [2004] NSWLEC 472 McClellan J provided principles for the weight to be given to DCPs and council policies. Following those principles, the matters I should consider are:

· the extent to which the DCP is a result of community consultation;

· the consistency with which the DCP has been applied; and

· the quality of planning outcome if the DCP is applied.

15 It was common ground that DCP 12 had been prepared with adequate public participation. The applicant’s advocate, Mr M Ball, submitted that it had not been consistently applied and the quality of outcome was not sufficient high to justify upholding it. Regarding consistency of application, the evidence indicates that there have been four consents under the DCP and in three of those the DCP’s requirements were varied.

16 The first consent relates to 443-453 King Georges Road. In that case the building depth was varied from 24m to allow a building with a depth of 46m. There was also a variation of the Floor Space Ratio (FSR) for the commercial component, though the building complied with the total FSR. The second consent relates to 437-441 King Georges Road. In this case the FSR requirement was varied. The third consent relates to 442-444 King Georges Road. In this case the council accepted that a basement level that projected from the ground by more than 1m should not be counted as a storey.

17 In Mr Shiels’ opinion, none of the above consents strayed as far from the requirements of the DCP as the subject application would if it were approved. He repeated his view that an approval of this application would be a blow to DCP 12 from which it would be hard to recover.

18 In my opinion, Mr Shiels is correct in saying that the variations in the above three consents are not as major as those required to approve this proposal. In particular the long three-storey section facing Stoney Creek Road, where DCP 12 requires a two-storey building would be highly visible and an obvious breach of the height control. An approval of a three-storey building would be a heavy blow to the prospects of enforcing DCP 12 in the future.

19 As regards Mr Ball’s submission that a three-storey building is just as acceptable as a two-storey building, I do not think that this provides a reason for abandoning the DCP. DCP 12 is the expression of the subjective preferences of a local community. In order to depart from the DCP, the Court would need to be convinced that its planning outcome is undesirable. The fact that there are other acceptable options is not a reason for setting aside the DCP.

Building depth

20 DCP 12 establishes a maximum building depth of 24m for the whole site, as well as for the adjoining sites to the west. The significance of this requirement is that it assists in the coordinated development of adjoining sites. In my opinion, if the applicant wishes to depart from the requirement, it has the responsibility to show that the departure does not unfairly constrain the development potential of the adjoining site. There was no suggestion that this aspect has even been considered.

21 For the above reasons the appeal is dismissed.

Orders

1. The appeal is dismissed.

2. Development application to demolish the existing building and erect a residential/commercial development on lots 1, 2, 3, 4 and 5 DP 19301, lot 134 DP 12807 and lot 2 DP 13146, known as 166-178 Stoney Creek Road, Beverly Hills is determined by refusal.

3. The exhibits are returned.

________________
Dr John Roseth
Senior Commissioner