David Crane and Associates Pty Ltd v Kogarah Council

[2004] NSWLEC 250

Land and Environment Court

of New South Wales

CITATION:	David Crane & Associates Pty Ltd v Kogarah Council [2004] NSWLEC 250
PARTIES:	APPLICANT David Crane & Associates Pty Ltd RESPONDENT Kogarah Council
FILE NUMBER(S):	11645 of 2003
CORAM:	Tuor C.
KEY ISSUES:	Development Application :- Commercial building height and compatability with residential area loss of trees and adequacy of landscaping
LEGISLATION CITED:	Kogarah Local Environmental Plan 1998
CASES CITED:
DATES OF HEARING:	18/05/2004
EX TEMPORE JUDGMENT DATE :	05/18/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios Solicitors Maddocks RESPONDENT Mr A Pickles, Barrister Solicitors Abbott Tout

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11645 of 2003

Tuor C

18 May 2004

DAVID CRANE & ASSOCIATES PTY LTD

Applicant
v

KOGARAH COUNCIL

Respondent

Extempore Judgment

1 This an appeal against the refusal by Kogarah Council (the council) of a development application for the demolition of an existing building and construction of a three storey commercial building with basement parking for 45 cars at 1 Boundary Road, Oatley.

2 The statement of issues before the court contained 11 issues. These were resolved between the parties through expert evidence and amended plans which reduced the height of the proposal and provided more articulation to the elevations through setbacks and materials.

3 The concerns of Rail Corporation were resolved through conditions, including a deferred commencement condition relating to the stability of the embankment and the requirement for a geo-technical report.

4 The only outstanding issue was the concerns of the residents. The key concerns were:

i. The use of the land for a commercial purpose which would not be viable and would compete with Oatley shopping centre.

ii. The loss of the existing gym facility.

iii. The height of the development and its compatibility with the residential character of Oatley.

iv. Traffic impacts.

v. Loss of trees and lack of vegetation particularly along the western elevation.

5 In relation to the first two concerns, the use is permissible under the Special Uses 5(b) (Railway) Zone in Kogarah Local Environmental Plan 1998 (LEP 1998). Under Amendment 23 to this plan, residential uses are prohibited within this zone as being incompatible with the adjoining railway line and maintenance facility. Whereas the zoning envisages that commercial use is compatible with these adjoining uses. The proposal does not propose retail use of the building and a separate application will be required for each commercial tenancy.

6 In relation to the height of the proposal, this complies with the height control in Development Control Plan No 29 – Development on Land Zoned Special Uses 5(b) (Railway). The experts, Mr S Layman, for the council and Mr D Crane, for the applicant, agreed that the proposal was “not consistent” with the character of nearby residential development but “not inconsistent” with the adjoining railway maintenance facility. Although larger, the proposal was of the same character as the existing commercial facility on site and was acceptable within this context.

7 The streetscape of Boundary Road in this location is dominated by the railway maintenance facility, the existing two storey building on the site and the railway line itself. Residential development to the west is separated from the site by the railway cutting. While the proposal will be visible from this residential area, I accept Mr Crane’s evidence that it will have “a distant visual presence” consistent with that anticipated by the zoning and the height control.

8 Mr C McLaren, traffic engineer to the applicant, submitted a Statement of Evidence on the traffic issue. No other expert evidence was provided and council did not pursue this issue. Mr McLaren stated that the proposal had acceptable traffic generation levels and associated impacts.

9 In relation to loss of trees, Mr T Lydon, arborist for the applicant, provided a Statement of Evidence. No other expert evidence was provided and council did not press this issue. Mr Lydon's evidence was that the two remaining trees on the site did not warrant retention. The landscape plan provides a number of trees along the eastern boundary and landscaping within the site which adequately compensate for the loss of existing trees.

10 I accept the resident’s concerns that there is no landscaping along the western elevation, which can be viewed from the residential area. This is a negative feature of the development but, of itself, is not sufficient reason to warrant refusal of the application, particularly when the narrow width of the site is considered.

Orders

1. The appeal is upheld.

2. The development application for the demolition of an existing building and construction of a three storey commercial building with basement parking for 45 cars at 1 Boundary Road, Oatley, in accordance with plans numbered 01/05C and 02/05C dated April 04 prepared by XQZ Architects; Landscape Plan L4A amended 3 July 2003 prepared by Wallman Partners Pty Ltd; and Stormwater Drainage Concept Plan D1B amended 9 October 2002 prepared by Jones Nicholson Pty Ltd, is determined by the grant of development consent subject to the conditions in Annexure “A”:

3. The exhibits, except Exhibits A, B, C and 2, may be returned.
___________________
Annelise Tuor
Commissioner of the Court