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Karavellas v Sutherland Shire Council

Karavellas v Sutherland Shire Council

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Land and Environment Court

of New South Wales

CITATION: Karavellas v Sutherland Shire Council [2004] NSWLEC 251

PARTIES: APPLICANT
Karavellas
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 11658 of 2004

CORAM: Tuor C.

KEY ISSUES: Development Application :- Residential flat building
Planning Principle amalgamation of sites and isolation of sites through redevelopment
Height and bulk

LEGISLATION CITED: Sutherland Local Environmental Plan 2000
State Environmental Planning Policy No 65-Design Quality of Residential Flat Development
State Environmental Planning Policy No1

CASES CITED: Melissa Grech v Auburn Council [2004] NSWLEC 40;
Cornerstone Property Group Pty Ltd v Warringah Council [2004] NSWLEC 189

DATES OF HEARING: 13/04/2004, 14/04/2004 and 17/05/2004

EX TEMPORE
JUDGMENT DATE : 05/17/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mrs J Kelly, Barrister
Solicitors
Jacovou & Co
RESPONDENT
Mr R O'Gorman Hughes
Solicitor
Sutherland Shire Council

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11658 of 2003

Tuor C

17 May 2004

KARAVELLAS

Applicant

SUTHERLAND SHIRE COUNCIL

Respondent

Judgment

Introduction

1 This an appeal against the refusal by Sutherland Shire Council (the council) of a development application for the demolition of existing buildings and construction of two residential flat buildings with basement car parking at 498-502 President Avenue and 139 Acacia Road, Sutherland.

The site and it context

2 The site is at the south western corner of President Avenue and Acacia Road and is an amalgamation of four allotments being: lot 9 DP 663145, lots B, C and D DP354504. It has a site area of approximately 3271.8m2, with a frontage of about 50 metres to President Avenue and about 54 metres to Acacia Road. Its southern boundary adjoins the railway easement. The land slopes about three metres from north to south.

3 Existing development on the site is four houses with associated structures. The site has some vegetation, especially in the south western corner.

4 Adjoining the site to the west is a single storey house (504 President Avenue). Further to the west and across both President Avenue and Acacia Road are three storey residential flat buildings.

Background

5 The development application was lodged on 10 October 2003 and was notified to adjoining residents and four submissions were received. Council staff recommended approval of the application but council refused it on 15 March 2004.

6 The appeal was heard on 13 and 14 April and I handed down preliminary findings on 15 April and Directions on 16 April 2004. A copy of the directions and the reasons for them is at Annexure B of this Judgement.

7 In response to the Directions, a further offer was made to Mr Khoury, the owner of 504 President Avenue, amended plans were prepared which lowered the building. A further joint statement by the planners, Mr Nash, for the council, and Mr Long, for the applicant, was also prepared as well as a statement by the traffic engineers, Mr P Anderson, for the council, and Mr T Lawrence, for the applicant, which addressed car access off President Avenue.

Proposal

8 The proposal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 251
Decision Date: 05/17/2004

CaseChat Overview and Summary

In Karavellas v Sutherland Shire Council, the applicant sought to demolish existing buildings and construct two residential flat buildings with basement car parking at 498-502 President Avenue and 139 Acacia Road, Sutherland. The Sutherland Shire Council had refused the development application, which the applicant appealed to the Land and Environment Court. The key issues for the court to decide were whether the proposal would result in the inefficient and uncoordinated development of the area by leaving 504 President Avenue isolated, and whether the height and bulk of the proposal was appropriate.

Regarding the first issue, the court found that while amalgamation of the sites would likely achieve a better planning outcome, it was not reasonably feasible. The applicant had made reasonable efforts to amalgamate the sites, including early negotiations and offers based on independent valuations, but these were rejected by the owner of 504 President Avenue. The court was satisfied that a reasonable offer had been made and that it was not the role of the court to negotiate the final purchase price. The court also found that reasonable development was likely to be achieved on 504 as an isolated site, albeit with some reduced development potential compared to an amalgamated development.

On the issue of height and bulk, the court found that the four-storey height of Building B and the floor space ratio were reasonable. The four-storey height was consistent with the civic design quality objectives and did not adversely impact the amenity of the development or neighbouring developments. The floor space ratio exceedance was due to the inclusion of car circulation space, but the applicant had submitted an objection under State Environmental Planning Policy No 1, arguing that compliance with the standard was not necessary as its objectives were met.

The court granted the appeal and approved the development application, subject to conditions including placing overhead wires along Acacia Road underground. The court found that the proposal would provide consistency for existing residents as to the size and bulk of potential buildings in the neighbourhood and meet the objectives of the relevant planning controls.

Orders