Katris and Associates Pty Ltd v Hurstville City Council

[2010] NSWLEC 1132

Land and Environment Court

of New South Wales

CITATION:

Katris and Associates Pty Ltd v Hurstville City Council [2010] NSWLEC 1132

PARTIES:

APPLICANT
Katris and Associates Pty Ltd

RESPONDENT
Hurstville City Council

FILE NUMBER(S):

10852 of 2009

CORAM:

Tuor C

KEY ISSUES:

CONSENT ORDERS - DEVELOPMENT APPLICATION :- demolish existing buildings, including part of a heritage item, construct seven storey mixed use building with basement parking

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Hurstville Development Control Plan No. 2
State Environmental Planning Policy No 65

DATES OF HEARING:

21 April 2010

EX TEMPORE JUDGMENT DATE:

21 April 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr G McKee, solicitor
of McKees Legal Solutions

RESPONDENT
Mr A Seton, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

21 April 2010

10852 of 2009 Katris and Associate Pty Ltd v Hurstville City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an appeal against the refusal by Hurstville City Council (council) of a development application to demolish existing buildings, excluding the front faced of a heritage item, and to construct seven storey mixed use building with basement parking at 127 - 141 Forest Road, Hurstville (the site).

2 The issues between the parties have been resolved through amended plans and they are seeking consent orders from the Court. There were no objectors to the proposal.

3 The site, its locality, the history of the application and the planning controls are in the Amended Statement of Facts and Contentions filed by the council on 22 March 2010.

4 The site is zoned 3(b) City Centre Business under Hurstville Local Environmental Plan 1994 (LEP 1994). The development is permissible with consent. Part of the site (127-137 Forest Road) is identified as a heritage item under LEP 1994, which includes heritage provisions that are relevant to the development application (cl 27, cl 28 and cl 33).

5 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development is also relevant.

6 Hurstville Development Control Plan No. 2 (DCP) applies to all land within the 3(b) City Centre Business zone. Section 4.1 of the DCP provides site specific envelope and floor space ratio (FSR) controls, which were prepared after extensive study and community consultation.

7 Under the DCP, the site is part of block 25, it includes all of site 25A and part of site 25B. Notably the design principles for future development for these sites include:

· address Forest Road with major buildings of six storeys and Treacy Street with four storeys.

· Retain the existing 1940s facade and set the new building back two metres on the site between 127 to 137.

· The small subdivision pattern is to be reflected in the design of the lower floors of the building.

· Buildings are to follow the street alignment.

8 The original development application proposed the demolition of the façade of the heritage item. This application was recommended for approval by council officers, but was refused by council and subsequently formed the basis of the appeal.

9 Mr Graham Brooks, the parties' single heritage expert, assessed the original application and did not support the demolition of the whole building. The applicant was subsequently granted leave to amend the application to retain the facade and set back the new building, the two metres required by the DCP. This is the application now before the Court.

10 The applicant was also granted leave to appoint Mr R Staas as a heritage expert. Mr Brooks and Mr Staas prepared a joint report. The experts agreed that the most significant architectural feature of the heritage item is the art deco style facade and they did not object to the demolition of the other parts of the building. They stated that:

Demolition of the remainder of the building, with the exception of the art deco facade, is acceptable, and can be reasonably regarded as necessary, if the ultimate objective of the planning controls to achieve comprehensive redevelopment is to be met.

11 The experts recognised that the area is one that is undergoing significant change and transition and that the controls and the DCP recognise heritage listed buildings, but do not envisage that they should be, in some cases, fully retained. The proposal is consistent with the form development envisaged by the DCP.

12 However, Mr Brooks considered that there was an inherent conflict between the heritage listing in LEP 1994 and the site specific controls in the DCP, which permit large scale redevelopment that may overwhelm the retained element.

13 Mr Staas states that:

the design maintains the identified heritage facade as mandated in the DCP and steps back to gives it prominence in the streetscape and at the pedestrian level. In addition, the creation of similar scale podium style treatment for the site to either side of the retained facade gives it a strong base to act as a contributing element in the streetscape of Forest Road. I consider this design appropriately integrates the retained facade into the new fabric of the city centre as envisaged by the DCP.

14 While I recognise the concerns of Mr Brooks, the proposal is agreed to be consistent with the controls in the DCP. These controls are detailed and site specific and are clearly what council envisages for the area.

15 The parties are seeking consent orders from the Court. On the basis that the proposal complies with the planning controls. I am satisfied that the issues between the parties are resolved and that the consent orders sought by the parties may be granted.

16 The Court orders by consent:

1. The appeal is upheld.
2. The development application 09/DA-176 for the demolition of the existing buildings (excluding the front facade of the heritage building, at 127 - 137 Forest Road, Hurstville) and erection of a mixed retail, commercial and residential building with basement car parking on the land known as lots 1-9 of Section B in Deposited Plan 2752 (Nos 127 to 141) Forest Road, Hurstville is approved subject to the conditions in Annexure ‘A’.
3. Exhibits 1, 2, A and C are retained.
The Courts notes that:

The parties have agreed that the amount payable by the Applicant to the Respondent pursuant to the costs order made pursuant to s 97B of the Environmental Planning and Assessment Act 1979 on 9 March 2010 is $9,984.75 and that such amount shall be payable 21 May 2010.
The parties have agreed that there shall be no order as to costs save for the agreement referred to above.

___________________

Annelise Tuor
Commissioner of the Court
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