Meteora Contractors Pty Ltd v Hurstville City Council

[2011] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:

Meteora Contractors Pty Ltd v Hurstville City Council [2011] NSWLEC 1344

Hearing dates:

11, 12 October 2011

Decision date:

12 October 2011

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

By consent,

1. The appeal is upheld.

2. That development consent be granted to development application No 10/DA-515 in respect of the property 598-602 Forest Road Peakhurst, for the demolition of existing structures and the construction of a two storey building comprising two commercial offices and eleven 2 bedroom units, eight 1 bedroom units, basement parking and strata subdivision subject to the conditions annexed and marked "A".

3. The exhibits are returned with the exception of exhibits 1, 2, 3 and A.

4. Each party pay their own costs.

Catchwords:

CONSENT ORDERS - development application - demolition of all existing structures and the erection of a two-storey building comprising two commercial offices, eleven two-bedroom units, eight one-bedroom units, basement car parking and the strata subdivision

Legislation Cited:

Environmental Planning and Assessment Act 1979

Category:

Principal judgment

Parties:

Meteora Contractors Pty Ltd (Applicant)

Hurstville City Council (Respondent)

Representation:

Counsel
Mr J Hannaford, solicitor (Applicant)

Mr P Rigg, solicitor (Respondent)
Solicitors
Hannaford Lawyers (Applicant)

Norton Rose Australia (Respondent)

File Number(s):

10606 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of Development Application No.10/DA515 by Hurstville City Council (the council) for the demolition of all existing structures and the erection of a two-storey building comprising two commercial offices, 11 x 2-bedroom units, 8 x 1-bedroom units, basement car parking and the strata subdivision of the proposal. The proposed development is located at 598-624 Forest Road, Penshurst.

1. The council filed a Statement of Facts and Contentions that identified a number of areas of concern, however, the principal concern related to the 0.15 m setback to the rear boundary. This boundary has a common boundary with residential properties in Carruthers Street. The inadequate setback also raised concerns over potential overlooking and loss of privacy.

1. The applicant provided amended plans to the council to address the rear setback contention through the provision of a 3 m setback, landscaping and treatment of the windows in the rear elevation by raised sill heights and use of frosted glass. The amended plans were seen by the council to address their concerns and sufficient to enter into Consent Orders. I note that the site is dual zoned being within Zone No 2 (Residential Zone) and Zone 3(c) (Business Centre Zone) although some 91% of the site falls within the latter zone. This presents some difficulties in considering the appropriate assessment criteria, however, I accept that this is appropriately addressed in some detail in the council officers report on the development application.

1. In accordance with Practice Note Class 1 - Development Appeals , par36 provides, in part, that:

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal.

1. In response to the par 36, the council provided a report from Mr Mark Raymundo, the council officer responsible for the assessment of the development application. The report provides a compliance table with the council's Development Control Plan for Multiple Dwellings and Residential Flat Buildings . Given the dual zoning of the site, and the lack of any identified amenity impacts, I accept that the variations identified in the report can be justified in this case and that the requirements in the Practice Note are satisfied.

1. Also, two residents representing three properties in Carruthers Street, provided evidence on site on the first morning of the hearing. The site was also viewed from Carruthers Street and a property adjoining the site in Carruthers Street was inspected. The evidence provided by the residents indicated a level of satisfaction with the amended plans, particularly the treatment of the windows facing their properties to avoid overlooking and loss of privacy. Two additional letters were provided at the hearing from residents who could not attend the site inspection, however, I am satisfied that their concerns are largely, if not totally, addressed by the proposed amendments to increase the rear setback and address the issues of overlooking and potential loss of privacy from the rear elevation.

1. Consequently I am satisfied that there is no reason why the Court should not make the Consent Orders in the form agreed by the parties which are.

1. The appeal is upheld.

2. That development consent be granted to development application No 10/DA-515 in respect of the property 598-602 Forest Road Peakhurst, for the demolition of existing structures and the construction of a two storey building comprising two commercial offices and eleven 2 bedroom units, eight 1 bedroom units, basement parking and strata subdivision subject to the conditions annexed and marked "A".

3. The exhibits are returned with the exception of exhibits 1, 2, 3 and A.

4. Each party pay their own costs.

G T Brown

Acting Senior Commissioner