Lavison Pty Limited v Canterbury City Council

[2006] NSWLEC 672

Land and Environment Court

of New South Wales

CITATION:	Lavison Pty Limited v Canterbury City Council [2006] NSWLEC 672
PARTIES:	APPLICANT Lavison Pty Limited RESPONDENT Canterbury City Council
FILE NUMBER(S):	10516 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Mixed use development Conversion of part to additional residential use
LEGISLATION CITED:	Development Control Plan 15 Business and Retail Development
CASES CITED:	Goldin v Minister for Transport 121 LGERA 101; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	10 October 2006
EX TEMPORE JUDGMENT DATE:	10/10/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Perkins, solicitor Colin Biggers & Paisley RESPONDENT Mr A Seton, solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

10 October 2006

06/10516 Lavison Pty Limited v Canterbury City Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 97 of Environmental Planning and Assessment Act1979 against the deemed refusal by Canterbury City Council (the council) of Development Application 179/2006, to change the uses of Units 11 and 12 in an existing mixed-use development located on the corner of Floss Street and Canterbury Road at Hurlstone Park (the site).

2. At the outset of this decision, I note that I have inspected the site in company with the legal representatives of the parties and those instructing and advising in these proceedings.

3. During the course of the on-site hearing and inspection, a number of minor matters of detail arose with respect to design elements of one of units – a topic to which I will return. The zoning is 3(a) General Business and the general configuration of the building is of a mixed commercial development. At present it is entirely commercial at the Canterbury Road Street frontage level through to the rear (which is somewhat elevated above Floss Street and Dunkeld Lane). Under-building parking is accessed via the rear lane. There are two levels of residential space above the commercial level.

4. At the time of approval of the development, the council permitted a bonus above the otherwise maximum permitted floor space ratio (FSR) which had the consequence, using a rounding up approach, of allowing two residential units in excess of the total number of units that would otherwise have been permitted.

5. What is now sought by the applicant is to convert two commercial units on the Canterbury Road Street frontage level - Units 11 and 12 - to residential units and to reduce the commercial floor space from 473 sqm to 265 sqm – a reduction of 208 sqm.

6. Doing so would involve a further significant exceedence of the permitted FSR for residential units. A significant element in this application is the fact that the access to Units 11 and 12 is through a security entrance from Canterbury Road – a common security entrance with the residential units and necessary and appropriate for the protection of the privacy of the residents of the residential units.

7. It is inconceivable, in any practical sense, that the nature of the entrance could be changed to accommodate any passing traffic nature or to facilitate beyond that level of security access to Units 11 and 12 for commercial use purposes. No direct street access is practicable for Units 11 and 12.

8. During the course of the proceedings, considerable discussion has taken place as to whether or not the change in use, to the two units, would or would not satisfy the provisions of Development Control Plan 15 Business and Retail Development (the DCP) being a plan effective from the 30th of August 2002.

9. Mr Seton, solicitor for the council, put that to allow a further significant exceedence would constitute an undesirable precedent - being a precedent of the type looked upon with disfavor by Lloyd J in Goldin v Minister for Transport 121 LGERA 101. If this were an application de novo for a building to be constructed incorporating the totality of the development as presently exists with Units 11 and 12 to be residential units, I would unreservedly accept Mr Seton’s submission. However, this is not such an application but is one to change the permitted use of an existing building.

10. With respect to the issue of precedent, I note that I am entirely satisfied that the building as approved is, in a number of respects, of poor design and ought not, in my assessment (with the universally beneficial application of hindsight) to have been approved in its present form.

11. The secure common access shared by both residential and commercial premises is a matter of significantly poor design.

12. I am also satisfied that Units 11 and 12 do not have any significant or commercial attraction levels of visibility to either Floss Street or to Canterbury Road – they being matters to which I will return in consideration of the relevant provisions of the DCP.

13. The fact that this building ought not to have been permitted, in its present form, does therefore, in my view, not provide any significant precedential benefit for any other developer - provided the officers of the council are mindful of matters that are raised and determined in this decision and other general matters of town planning principle relating to shared access points and the like.

14. I therefore turn the question of the appropriateness of conversion to residential use of each of the units for which it is sought.

15. In summary, I am satisfied that I ought to permit conversion to residential use of Unit 11 - it being the larger and more eastern of the two units but subject to a number of modifications to it.

16. I am not satisfied that such a position should apply with respect to Unit 12 – it being the smaller more westerly of the two units and the unit adjacent to the existing leased commercial retail floor space within the building.

17. I have reached those two conclusions for the following reasons.

18. With respect to Unit 11, it is settled that, in my consideration of the DCP, it is a plan to which I must have primary regard and which must form the focal and starting point for my consideration (see Spigelman CJ in Zhang v Canterbury City Council (2001) 115 LGERA 373 at para 75 on pp 386 and 387).

19. The first of the objectives of the DCP states the purposes of the DCP. There are a number of commercial elements including, as set out in cl 1.2(b), to ensure that centres maintain and improve their trading performance in the context of their land use strategy and the needs of the residents in the City area.

20. There is a provision contained in cl 1.3 that permits variation of that those objectives and of the various standards in the DCP as particular circumstances arise.

21. The DCP divides the various elements of the General Business Zone into two – a Main retail area designation and a Secondary business/retail area designation.

22. There is no dispute that the totality of the centre within which the site is located fall within that second descriptor.

23. There are three objectives for a Secondary business/retail area.

24. The first is to provide specialised retail goods and services particularly those that may not involve household needs and are more likely to require high exposure to the public.

25. This is followed by two other objectives – neither of which is pressed as being relevant in the present circumstances

26. It is not disputed, as I understand it, that Units 11 and 12 do not provide high exposure to the public.

27. In the section of the DCP dealing with the minimum business retail floor space areas, at 3.1.2, the relevant standard states for development in a general business zone, the street level of buildings must contain floor space of functional dimensions to allow active and viable commercial uses facing the street.

28. There could be no suggestion, on my assessment of the site, that either of these units, standing by themselves, could meet that test nor is there any suggestion that the present activities conducted in the retail units at the Canterbury Road frontage constitute token business or retail floor space.

29. Indeed, the retail activities undertaken at the Canterbury Road frontage are spread across what are two titles within the strata subdivision being operated as a single, undivided retail entity.

30. It is entirely appropriate, in my assessment, to assume that the council, by approving each of those Canterbury Road frontage units as being capable of being a separate retail entity, has satisfied itself that either of those units, standing alone, would then itself not constitute a token retail floor space.

31. Certainly the present retail business located in those Canterbury Road frontage units could not be regarded as a token.

32. Unit 12 is immediately adjacent to that two unit commercial tenancy. There is no evidence provided by the applicant that demonstrates that it would not possible, at some future time (or indeed at present) to incorporate the area of Unit 12 in the commercial operations of the business fronting Canterbury Road.

33. I am satisfied that, under the circumstances where, as is the case here, the applicant is seeking indulgences which involve further variations on the minimum standard, the onus falls upon the applicant in each instance to justify such indulgence.

34. I am not satisfied, because of the lack of evidence with respect to the possibility of adjacent and conjoint operation of Unit 12 with the premises fronting Canterbury Road, that it would not be possible to satisfy an incorporation of Unit 12 into a viable shop commercial use facing that street.

35. A different position applies, in my view, with respect to Unit 11. It is removed from that commercial activity by Unit 12 and is of a significantly larger dimension than Unit 12. I am satisfied that is unlikely that it could be incorporated in a single commercial retail use for the totality of this level of the building.

36. I accept the evidence provided in two statutory declarations – one provided by a commercial real estate agent that attempts were made to lease both Units 11 and 12 on a commercial basis from the beginning of 2003 until the end of 2004 and the other from a representative of the applicant that the applicant, itself, tried to arrange for those premises to be leased during 2005 – that none of these advertisements led to any conclusion of a commercial lease of either premises.

37. In circumstances where the council itself has not questioned the adequacy or efficacy of the activities of either that agent or of the applicant to find tenants for the premises, I am satisfied that it is reasonable to assume that Unit 11 would, if left with a commercially zoned or required use, remain as an orphan and as an unlikely to be utilised set of commercial premises for the foreseeable future.

38. Unit 11, on the other hand, is a space which has considerable potential residential amenity,

39. Although it would involve the granting of an additional departure and indulgence in the scope of the permitted residential development on the site, that is under circumstances where, as earlier noted, I am satisfied that the development, if properly scrutinised in the first instance, ought not to have been approved in its present design.

40. Faced with circumstances where I have an element of the premises which is unlikely to be able to find a commercial tenancy which satisfies the provisions of the Development Control Plan [the relevant standard being in 3.1.2(a)] as viable retail or commercial uses which also would have to have a level of activity associated with them, it is appropriate (on what I consider would be only island circumstances because of the inadequacy of the present design and not a precedent) to permit the conversion of Unit 11 to residential premises.

41. Having said that, I noted to the parties during the course of the view that I had several matters of design concern with respect to Unit 11 – they relating to the private open space on the northern side of the unit. These require rectification as part of permitting the change of use.

42. During the course of the hearing and during the subsequent adjournment whilst the parties were discussing a number of matters, I have considered further the question of shielding Unit 11’s private open space from the slightly more elevated courtyard area located to the north in the common property.

43. I have concluded that the appropriate way to deal with that, without bothering the body corporate further or having to get into matters of owner’s consent, would be to require the erection of an opaque glass screen fixed to the inside of the party wall between the private open space and the common area which opaque or translucent glass wall would be to a height of 250 mm above the top of the present brick wall.

44. In order to ensure privacy to this private open space from overlooking from the premises immediately above, I note that the construction certificate plans provided for an awning over virtually the entirety of the length of that private open space. This awning has only in part been constructed. It is appropriate to require an awning of an appropriate design (which I consider desirably would be of similar glass to the privacy shield just discussed) to extend along the totality of the private open space to the north of Unit 11 and to extend a distance of 1.5 m from the face of the wall.

45. There were also an issue raised in the council’s Statement of Issues as to the failure of the application to provide information to enable a consent authority be satisfied that the building will, when completed, comply with all the Category (1) Fire Safety provisions of the BCA.

46. That was discussed with the representatives of the parties during the course of the proceedings and it was agreed that, if I reached a conclusion that either or both of the units were appropriate to be converted to residential use, then I could adjourn the proceedings to enable the applicant to satisfy the Court and the council as to compliance in that regard.

47. Given the conclusions that I have reached with respect to Unit 11’s private open space to the north, there will also need to be amendments made to the plans.

48. As I have reached the conclusion that the appeal be upheld in part – that is with respect to Unit 11 – I will give directions with respect to the provision of appropriate revised plans and conditions.

Commissioner of the Court