Legal Business Centre Pty Ltd v Wollongong City Council (2)

[2006] NSWLEC 292

Land and Environment Court

of New South Wales

CITATION:	Legal Business Centre Pty Ltd v Wollongong City Council (2) [2006] NSWLEC 292
PARTIES:	APPLICANT Legal Business Centre Pty Ltd RESPONDENT Wollongong City Council
FILE NUMBER(S):	10183 of 2005
CORAM:	Tuor C
KEY ISSUES:	Development Application :- Mixed use residential/commercial building amended plans height, bulk and scale, impact on adjoining residential zone deep soil planting parking and garbage collection
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Wollongong Local Environmental Plan 1990 State Environmental Planning Policy No. 1 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
CASES CITED:	Legal Business Services Pty Ltd v Wollongong City Council [2005] NSWLEC 595
DATES OF HEARING:	08/05/2006, amended plans 15/05/2006, submission from respondent 30/05/2006
DATE OF JUDGMENT:	05/31/2006
LEGAL REPRESENTATIVES:	APPLICANT Mrs ML Taylor, solicitor of Norman Waterhouse Lawyers RESPONDENT Mr M Mantei, solicitor of Kells the Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

31 May 2006

10183 of 2005 (2) Legal Business Centre Pty Ltd v
Wollongong City Council
JUDGMENT

1 This is an appeal against the refusal by Wollongong City Council (council) of a development application (1083/03) under the Environmental Planning and Assessment Act 1979 (the Act) for a mixed use commercial/residential development at 385A Crown Street, Wollongong (the site).

Background

2 On 21 September 2005, the Court heard Consent Orders for a mixed use commercial/residential development (the consent order plans). On 23 September 2005, I handed down a preliminary judgment. This judgment contained details of the site, proposal and planning controls so it is not necessary to repeat these matters in this judgment. (Legal Business Services Pty Ltd v Wollongong City Council [2005] NSWLEC 595). Following my findings, the parties requested that they be given the opportunity to consider the judgment and whether the proposal could be amended.

3 On 23 December 2005, Preston CJ granted leave for the applicant to rely on amended plans. A further hearing date was subsequently set for 22 February 2006. In response to these amended plans, council filed a Statement of Issues on 10 February 2006 that contained four issues. These issues related to the height and scale of the proposal, compliance with State Environmental Planning Policy No 65 (SEPP 65) and The Residential Flat Design Code (the Code), the aesthetic appearance of the development and vehicle access and parking.

4 On 21 February, council with the agreement of the applicant, sought leave to vacate the hearing date and seek the advice of a court appointed expert. Leave was granted and a further hearing date was set for the 8 May 2006.

5 As I understand it, Mr Layman, the court appointed expert, prepared a preliminary report and recommended changes, including the enclosure of the basement car park level. These changes were generally incorporated into amended plans (exhibit M) that were notified to residents (the exhibited plans). A number of submissions were received in response to these plans, which raised similar concerns to those made in response to the consent order plans. The key issues of concern being the height and bulk of the development, its impact on residential development, its appearance and traffic impacts, including waste collection.

6 Mr Layman prepared a final report on the exhibited plans, which recommended further changes and raised questions in relation to the parking. The applicant sought expert traffic advice from Mr C Hallam.

7 The changes suggested by Mr Layman and Mr Hallam were subsequently incorporated into the plans before the court (final plans – Exhibit G) for which approval was sought at the hearing. The changes mainly related to the quality of the drawings, car parking issues, extent of area for deep soil planting and compliance with floor space ratio (FSR). Mr Layman prepared a supplementary report on these plans, which concluded that they sufficiently addressed his concerns and recommended conditions of approval.

8 Council did not consider that the extent of changes between the exhibited plans and the final plans required re notification. As I understand, there was no requirement for re-notification based on the council DCP. It accepted the opinions of Mr Layman and Mr Hallam and did not press any of the issues previously identified in the Statement of Issues.

9 A number of residents gave evidence in Court. They were concerned that the final plans had not been re-notified and that council had previously indicated that it would be defending the appeal and that other residents would have attended the hearing if they had known this was not the case.

10 Mr Layman gave evidence of the changes between the consent order plans, the exhibited plans and the final plans. He also explained the differences to the residents during a short adjournment.

11 At the consent order hearing on 21 September 2005, I visited the site and heard the concerns of the residents. The final plans are an amendment to the consent order scheme. When compared to the consent order plans, the final plans have a reduced height and FSR, and increased setback to the adjoining residential area, increased deep soil planting, enclosed the surface car parking, provided disabled access and reduced the number of residential apartments and consequently the number of residential car spaces. The changes were incorporated in the exhibited plans and the residents’ submissions on these changes are in evidence. The changes do not address all their concerns, but their concerns are articulated in their submissions and have been addressed by Mr Layman in his supplementary report. I accept council’s submission that the main differences between the exhibited plans and the final plans are not such as to require re-notification.

12 During the hearing I raised further matters about the consistency of the plans and elevations, proposed materials and changes required by conditions. Again these changes were matters of detail that would not require re-notification of the plans. These changes were incorporated into the plans filed on 15 May 2006 (exhibit N). Council has advised that it does not oppose the granting of consent subject to conditions to these plans.

Findings

13 The concerns of the residents must be balanced against the council’s planning controls that guide the form of development on the site. My preliminary judgment highlighted a number of concerns, although the threshold issue related to the non compliance with the 1.5:1 FSR required under Wollongong Local Environmental Plan 1990 (LEP 1990). The consent order plans proposed an FSR of 1.7:1 and required a SEPP 1 objection which I did not consider to be well founded. Mr Layman considers FSR to be the only relevant statutory control applying to the site and that this determines the likely height, bulk and scale of development.

14 The final plans provide for an FSR of 1.486:1 and meet the requirements of LEP 1990. While the residents still maintain their concerns over the height, bulk and scale, I accept Mr Layman’s evidence that these are not warranted due to the reduction in floor area and FSR and physical changes to the building. These changes have resulted in a reduction in overall height, increased setbacks, landscaping to the south from the adjoining residential property, the enclosure of the car parking area and disabled access to the development.

15 In relation to height, the overall height of the proposal has reduced from RL60.6m in the consent order plans to RL57.5m in the final plans. The size of the fourth floor has been significantly reduced in size and incorporated into a roof structure. This level is setback from the north and south and the floors below and is unlikely to be seen from these directions.

16 From Crown Street the height of the building will read as the top of the third floor (RL 54.8m). The second and third floors are also stepped back from the street which will reduce their dominance. The ground and first floor follow the street alignment and reflect the height of the adjoining two storey commercial development to the east. This is emphasised by the difference in façade treatment between these levels and those above. This forms an appropriate transition in height between the existing buildings and the proposal until such time as other sites within the 3(a)zone are developed.

17 The height of the building is acceptable in relation to the residential flat building in the 2(b) zone to the west on the opposite corner of Osborne and Crown Street (RL 52.1m to the underside of its eaves).

18 The setback of the proposal from the residential development in the 2(b) zone to the south has been increased. Most significantly the setback of the basement car park has increased from 6m to 12m by the removal of the planter box and replacement with deep soil planting. The fourth floor is setback about 40m. The setback of the floors increases as the height of the building increases and consequently the residential levels will not have an adverse visual impact and are unlikely to be read in relation to the floors below when viewed from the south.

19 The location of the bulk of the building to the north and Crown Street satisfactorily addresses the relationship with the adjoining residential development to the west due to its separation across Osborne Street and the height of the residential flat building on the corner.

20 Due to the degree of separation the proposal does not create adverse privacy impacts on the residential development to the south or the west. No shadow diagrams were provided with the amended drawings, however, due to the reduction in the height and increased setback of the building, the overshadowing impacts would be less than those assessed under the consent order plans which council found to be acceptable. Council has not raised overshadowing as a an issue with the amended plans.

21 The final plans and subsequent amendments have simplified the appearance of the building. I accept Mr Layman’s opinion that it is acceptable and meets the requirements of SEPP 65 and cl 32(2) of LEP 1992, which requires an assessment of the likely aesthetic appearance of the building when viewed from a main road, being Crown Street.

22 The number of residential apartments has reduced from six to four and their internal amenity is acceptable. The proposal now provides disabled access off Crown Street, whereas previously it was provided via the basement carpark. An adaptable unit is also now provided.

23 The residents raised concerns about the amount of parking and the reversing of garbage trucks either into or out of the site. I accept Mr Hallam’s evidence that the number and arrangement of parking spaces are adequate to meet the operational need of this development and would not have an adverse traffic impact. The final plans included on site garbage collection which Mr Hallam considered was acceptable and it would be unreasonable to expect the development to provide facilities for trucks to enter and exit in a forward direction. However, he considered that due to the size of the development and the nature of Osborne Street, on site garbage collection was not required. Mr Layman agreed with this opinion and council did not press traffic as an issue. In the absence of any expert evidence to the contrary I am satisfied that the proposed arrangement will have an acceptable impact.

24 The removal of onsite garbage collection would enable a greater area of deep soil planting to be provided, until the rear laneway is required. On the basis that Mr Hallam and Mr Layman do not consider that on site collection is necessary, I consider that the provision of more landscaping provides greater amenity for the site, the streetscape and adjoining development. The amended plans reflect this change.

25 In the absence of other statutory planning controls for the site, beyond the FSR requirement, I am generally satisfied that the proposal reflects the form of development anticipated by the council. In reaching this conclusion, I have taken into account the need to provide a reasonable set back from the adjoining residential zone and to respond to the height of adjoining commercial development and the residential flat building.

26 By way of comment, the number of amendments, the length of time the application has taken and the amount of community concern, highlight the absence of a clear planning framework against which to assess the application. In my view, if properly formulated planning controls with the required level of public participation were in place, the uncertainty felt by both the community and applicant would have been significantly reduced.

Orders

27 For the above reasons the orders of the court are:

1. The appeal is upheld.
2. The development application for a mixed use commercial/residential development at 385A Crown Street, Wollongong, is approved subject to the conditions in Annexure “A”.
3. The exhibits, except exhibits 11, 12, 16, J and N, may be returned.

__________________________
Annelise Tuor
Commissioner of the Court