Ingoal Acquisitions Pty Ltd v Burwood Council

[2018] NSWLEC 1244

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ingoal Acquisitions Pty Ltd v Burwood Council [2018] NSWLEC 1244
Hearing dates:	22 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. Leave is granted for the applicant to rely on the amended plans listed at condition (1) of Annexure A. 2. By consent, the appeal is upheld. 3. Development Application No. 2016/187 for the demolition of existing structures and the construction of a three storey residential flat building with attic containing 12 apartments and basement parking for 13 cars, at 21-23 Gladstone Street, Burwood is approved, subject to the conditions of consent at Annexure A. 4. The exhibits, other than exhibits 1 and 4, are returned.
Catchwords:	DEVELOPMENT APPLICATION: consent orders; residential flat building; adjacent to a local heritage item; contentions addressed by amendments to the proposal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Ingoal Acquisitions Pty Ltd (Applicant) Burwood Council (Respondent)
Representation:	Counsel: Ms J. Reid barrister (Applicant)   Solicitors: Lionheart Lawyers (Applicant) Ms R. McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2017/183539
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2016/187 for the demolition of existing structures and the construction of a residential flat building (the proposal) at 21-23 Gladstone Street, Burwood (the site) by Burwood Council (the Council).

2. The appeal was subject to mandatory conciliation on 9 November 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 30 November 2017, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 2 February 2018 for the applicant to rely on the amended proposal.

4. The Court’s Practice Note – Class 1 Development Appeals provides, in relation to the consent order hearings:

Application for final orders by consent of parties

98. When there is agreement prior to the commencement of a hearing of a development appeal involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary.

5. Objectors to the proposal were invited to attend the hearing and two objectors provided a written submission (exhibit 2).

6. The adjoining neighbour, on being advised that the Council intended to enter into consent orders, raised no objection to the proposal but did request a number of conditions regarding the treatment of windows and materials and Ms McCulloch submitted that those conditions, as requested, are included in the conditions of consent at Annexure A or are shown on the architectural drawings at Annexure B.

7. The other objector raised concerns regarding the location of the entry and exit to the basement carpark in Gladstone Street close to the roundabout and that the three storey development “will create a claustrophobic feel to the street”.

8. The Council submits that the objections raised by the resident objectors regarding the original proposal have been addressed, to the extent that they can be, by the amendments made to the proposal as shown in the architectural plans (exhibit 4).

The site and its context

9. The site is located on the northern side of Gladstone Street, on the corner of Wentworth Road. The site has an area of 755.1m2.

10. The adjoining property at 19 Gladstone Street contains a single storey Federation style dwelling.

The proposal

11. The proposal is to demolish the existing semi-detached dwellings and construct a three storey residential flat building with basement parking, including 12 apartments and parking for 13 cars.

Planning framework

12. The site is zoned R1 General Residential pursuant to Burwood Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives for the R1 zone, to which regard must be had, are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

13. The site has a height of buildings development standard of 11m (Height of Buildings Map Sheet HOB_001 LEP 2012) and a floor space ratio (FSR) development standard of 1.2:1 (Floor Space Ratio Ma Sheet FSR _001 LEP 2012).

14. The site adjoins 19 Gladstone Street, one of a pair of properties listed as a local heritage item, Item 59 (Schedule 5, LEP 2012), “Federation Houses and Strathallan (19)”. The statement of significance for the heritage item states, “These well maintained houses are of local significance as Federation style houses and they contribute significantly to the character of Burwood” (exhibit B).

Expert evidence

15. The applicant relied on the expert evidence of Mr Greg Boston (planning) and Mr James Phillips (heritage). The Council relied on the expert evidence of Mr Scott Barwick (planning) and Ms Jennifer Hill (heritage).

Findings

16. I accept the agreed evidence of the experts that the amendments made to the proposal adequately address the contentions raised by the Council.

17. The experts agreed that the contention regarding the proposal’s inadequate response to the context has been addressed by the reconfiguration of the proposal, including a 1m side setback at basement level to provide deep soil along the eastern boundary and a 3.562m setback at ground floor to provide a landscaped side setback along the eastern boundary of the proposal. The setback at the second floor is between 5 and 6m to further enhance the separation between the proposal and the adjoining heritage item.

18. The experts agreed that the relocation of the driveway entry and exit to Wentworth Road allows for a landscaped side setback on the eastern side and additional planting is provided in the amended proposal in planters located over the basement roof. The relocation of the fire stair access from the basement to the ground floor also provides additional opportunities for deep soil and landscaping.

19. The experts agreed that the location and configuration of the common open space at ground level provides meaningful and useful areas for the future occupants of the proposal.

20. The experts agreed that the amended proposal is compliant with the area controls for deep soil and common open space.

21. The experts agreed that the amendments to the roof, including the increased pitch and articulation of the roof by adding dormers, the reduction in the apparent scale of the roof and the increased use of masonry cladding provides an improved and acceptable relationship between the proposal and the adjoining heritage item.

22. I accept the agreed evidence of the heritage experts that the amended proposal, with a two storey podium and roof form over, is compatible with the adjoining heritage item in terms of bulk, scale and the provision of landscaping and that the amended proposal will not detract from the heritage significance of the adjoining and nearby heritage item.

23. I accept the agreed evidence of the planners that the amended proposal has adequately addressed the potential for amenity impacts on the adjoining neighbour and that there is an adequate spatial separation between the amended proposal and the adjoining neighbouring dwelling and adequate opportunities for landscaping along the eastern side setback.

Conclusion

24. In considering the issues raised by the objectors, the amended plans and documents and agreed conditions of consent at Annexure A, I am satisfied that it is lawful and appropriate to grant the proposal development consent.

Orders

25. The orders of the Court are:

1. Leave is granted for the applicant to rely on the amended plans listed at condition (1) of Annexure A.

2. By consent, the appeal is upheld.

3. Development Application No. 2016/187 for the demolition of existing structures and the construction of a three storey residential flat building with attic containing 12 apartments and basement parking for 13 cars, at 21-23 Gladstone Street, Burwood is approved, subject to the conditions of consent at Annexure A.

4. The exhibits, other than exhibits 1 and 4, are returned.

____________

Susan O’Neill

Commissioner of the Court

183539.17 O'Neill C Annexure A (196 KB, pdf)

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Amendments

25 May 2018 - Representation corrected

Decision last updated: 25 May 2018