Luna Moon Pty Ltd v Leichhardt Council - [2005] NSWLEC 566

Land and Environment Court

of New South Wales

CITATION:
Luna Moon Pty Ltd v Leichhardt Council [2005] NSWLEC 566

PARTIES:
APPLICANT
Luna Moon Pty Ltd
RESPONDENT
Leichhardt Council

FILE NUMBER(S):
11464 of 2005

CORAM:
Nott C

KEY ISSUES:
Development Application :- proposed partial demolition and conversion of factory buildings for use as dwellings - decrease of overall floorspace - noncompliance with the LEP and DCP - objection under SEPP 1 - circumstances in which redevelopment may take place are not confined to the adaptive reuse provisions of the DCP - relevant to consider continued use of existing buildings if DA refused

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 97
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

DATES OF HEARING: 9 & 10 August 2005 and 15 September (half days) and 16 September 2005

DATE OF JUDGMENT:

10/11/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister
SOLICITOR
Paul Marsh
RESPONDENT
Mr G Green, solicitor
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

11 October 2005

11464 of 2004: Luna Moon Pty Ltd v Leichhardt Council [2005] NSWLEC 566

JUDGMENT

1. Commissioner Nott: This is an appeal against the council’s refusal of a development application relating to the partial demolition and conversion of former factory buildings on lot 1 DP 612415 at 106 Beattie Street, Balmain to provide a total of eight dwellings. The site has an area of 1,064.6 sq m. The proposed development is described in more below (par 4 ff).

2. At the hearing, evidence for the applicant was given by town planner Ms D Laidlaw, by architect Ms D Williams of the firm Jackson Teece, and by structural engineer Mr S Wilshier. For the Council, evidence was given by Ms G Chakar of 17 Mullins Street and by consultant town planner Mr A Smith. I have also taken into account the other documents tendered by the parties, including council’s Further Amended Statement of Issues dated 21 July 2005 (which has to be read in the light of the subsequent amended plans).

3. For the reasons that I will elaborate, I have concluded that it would be appropriate to grant development consent for the proposal in the amended plans, subject to the conditions in annexure A to the Court’s order.

4. As amended, the proposed development can be seen on the plans listed in general condition 1 of annexure A of the Court’s consent. The development comprises four main elements. First, on the eastern side of the site the building known as the Softwood Milling building will be converted to seven dwellings constructed over three levels. Originally, only six dwellings were proposed in the Softwood Milling. The seventh dwelling in this building results from proposed unit 1 being divided into two smaller units, unit 1a (shown on the ground-floor plan, Beattie Street) and unit 1b (level 1). Units 2, 3 and 4 will extend over two floors, from the ground floor of Beattie Street to…

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: [2005] NSWLEC 566
Decision Date: 10/11/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with an appeal from Luna Moon Pty Ltd against Leichhardt Council's refusal of a development application (DA) for the partial demolition and conversion of former factory buildings at 106 Beattie Street, Balmain. The proposed development aimed to convert the site into eight dwellings while decreasing the overall floorspace. The central legal issues revolved around the noncompliance with the Local Environment Plan (LEP) and Development Control Plan (DCP), objections under the State Environmental Planning Policy No.1 (SEPP 1), and the circumstances under which redevelopment could take place. Specifically, the court had to determine whether the redevelopment was confined to the adaptive reuse provisions of the DCP and whether it was reasonable to consider the continued use of existing buildings if the DA was refused.

Commissioner Nott concluded that it was appropriate to grant development consent for the proposal, subject to specified conditions. The court found that the information submitted with the DA, although initially raising questions of adequacy, was rectified during the hearing to a level sufficient for granting consent. Regarding the noncompliance with the floor space ratio (FSR) and other planning controls, the court noted that the existing buildings on the site were being used and could continue to be used for their approved purposes. Given that the FSR of the existing buildings was greater than that of the proposed redevelopment, the court deemed it unnecessary to require compliance with the FSR development standard due to the particular circumstances of the case.

The court also found the objection under SEPP 1 regarding the landscaping development standards to be well-founded, considering the proposed landscaped areas and the present situation on the site. It was deemed unreasonable to strictly enforce the planning controls without regard to the extent to which the existing buildings were in breach. The court further considered the proposal to be consistent with heritage and conservation objectives and found it acceptable overall, despite some amenity issues in certain units.

The final orders of the court granted the appeal, provided a deferred commencement consent for the proposed development, and specified conditions to be adhered to by the applicant. The exhibits, excluding certain documents, were to be returned, with one document to be provided to the council.

Orders