Hercules St Developments Pty Limited v Ashfield Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hercules St Developments Pty Limited v Ashfield Council [2015] NSWLEC 1378
Hearing dates:	19 and 25 August 2015
Date of orders:	18 September 2015
Decision date:	18 September 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	MODIFICATION APPLICATION: Mixed use development; FSR, height, parking; is the modification substantially the same
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan 2013 State Environmental Planning Policy No 1 – Development Standards State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development
Cases Cited:	Council of Trinity Grammar v Ashfield Council [2015] NSWLEC 1086 Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Randall v Ashfield [2014] NSWLEC 1034 Tipalea Watson Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 253 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Category:	Principal judgment
Parties:	Hercules St Developments Pty Limited (Applicant) Ashfield Council (Respondent)
Representation:	Applicant: Mr M Seymour (Barrister) Respondent: Ms R McCullough (Solicitor)     Solicitors: Applicant: Gadens Respondent: Pikes & Verekers Lawyers
File Number(s):	10581 of 2015

Judgment

1. COMMISSIONER: In December 2013 Ashfield Council granted consent to Development Application DA 10.2013.176 for the construction of an eight level mixed use development comprising a retail tenancy on the ground floor, 46 residential apartments over seven floors, roof top terrace and four basement parking levels for 71 vehicles at 11-13 Hercules Street, Ashfield (the site). The approval also included alterations and additions to the former Post Office, a heritage item fronting Hercules Street, and its adaptation for a range of uses including commercial and residential.

2. In August 2014, consent was granted to modify the development application by rewording a number of conditions of consent.

3. Following a number of discussions with council and the lodging of a provisional development application for further changes, the applicant lodged Modification Application 10.2013.176.3 with council in March 2015. This is the application the subject of this appeal.

4. The modification application seeks approval for the following:

• Alterations to [residential] Level 7 to replace the 4 approved apartments with 6 apartments (replacement of 2 x 1 bedroom and 2 x 2 bedroom apartments with 1 x 1 bedroom, 2 x 2 bedroom and 3 x 3 bedroom apartments);

• Provide a roof top communal terrace with barbecue facilities, seating, shade structures and landscaping; and

• Modifications to the building elevations.

5. In essence, the proposal is to replace the area set aside for communal open space on residential Level 7 with two apartments and move the communal open space and associated structures to the roof top.

6. The appeal to the Court against council’s deemed refusal of the modification application is made pursuant to s 97AA of the Environmental Planning and Assessment Act 1979 (EPA Act).

The issues

7. Council contends that the modification application be refused on the basis that:

1. The proposal is not substantially the same as the development for which consent…