Moussa v Hurstville City Council

[2015] NSWLEC 1426

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moussa v Hurstville City Council [2015] NSWLEC 1426

Hearing dates:

22 October 2015

Date of orders:

23 October 2015

Decision date:

23 October 2015

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal upheld

Catchwords:

DEVELOPMENT APPLICATION: multi dwelling housing, flooding, contentions resolved through agreed conditions of consent

Legislation Cited:

Hurstville Local Environmental Plan 2012; Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment; State Environmental Planning Policy No 55 -Remediation of Land; State Environmental Planning Policy (Building Sustainability Index BASIX) 2004; Environmental Planning and Assessment Act 1979

Texts Cited:

Development Control Plan No 1 - LGA Wide

Category:

Principal judgment

Parties:

Andre Moussa t/a Design Link Australia (Applicant)
Hurstville City Council (Respondent)

Representation:

Counsel:
Mr T To (Applicant)

 

Solicitors:
Ms V Walsh, Gadens (Applicant)

  Ms S Pickeridge, Lindsay Taylor Lawyers (Respondent)

File Number(s):

10083 of 2015

Judgment

1. Mr Moussa lodged, on behalf of Design Link Australia, Development Application DA2014/0091 with Hurstville City Council on 4 February 2014 seeking consent to demolish two dwelling houses and construct a multi dwelling housing development containing 8 dwellings at 100-102 Wright Street, Hurstville. The council refused consent on 6 August 2014 and Moussa is appealing that determination.

2. The issues in the case are whether the site is suitable for the proposed development, particularly in relation to its flood affectation and whether the development has adverse amenity impacts on adjoining properties. Those contentions have now been resolved through the imposition of agreed conditions to be imposed by way of a deferred commencement consent.

The site and the locality

3. The site comprises two adjoining allotments located on the north eastern side of Wright Street, to the north of Queens Road. It is rectangular in shape with a combined frontage of 24.38m and site area of 1720 m². It falls from the street to the rear. Two single storey dwelling houses with associated outbuildings are contained on the site with nine trees located across it. All would be demolished to allow redevelopment and regrading of the site.

4. A 675mm diameter Council stormwater pipe traverses the northern (rear) portion of the site with a proposed 2.5 m wide easement lodged with the Land and Property Information (LPI) on 9 July 1992. The site subject to overland flow, being affected by the 1 in 100 year flood event.

5. Adjoining the site on all sides are single lots occupied by freestanding dwelling houses. Lots to the west are aligned parallel to the two lots that comprise the subject land, with frontage to Wright Street. Lots to the east have frontage to Queens Road, with their rear boundary abutting the side (eastern) and boundary of the site. Five lots, being Nos 54-60 Queens Road, abut this common boundary. Lots to the rear (north) of the site front McLeod Street. The easement that affects the subject land and the stormwater pipe therein also traverses adjoining land to extend to McLeod Street, and pass over adjacent blocks fronting Wright Street to the west.

6. The area surrounding the site is characterised by residential development and is proximate to the Hurstville City Centre.

The planning controls

7. The site is zoned R2 - Low Density Residential under the provisions of Hurstville Local Environmental Plan 2012 (LEP). Subdivision and multi-dwelling housing is permissible with consent in that zone. Clause 2.3 requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

• To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment.

• To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.

8. Other relevant environmental planning instruments are Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment; State Environmental Planning Policy No 55 -Remediation of Land and State Environmental Planning Policy (Building Sustainability Index BASIX) 2004. There are no contentions that the development tis inconsistent with the provisions of those instruments.

9. Development Control Plan No 1 - LGA Wide (DCP) applies to the site.

Background and the application

10. The original application was lodged with the Council on 4 February 2014 and was refused on 6 August 2014 for the following reasons;

1. Pursuant to S79C(1)(b) of the Environmental Planning and Assessment Act 1979, the development is considered excessive in terms of bulk and scale as a result of the length of building, resulting in an adverse impact on the character of the neighbourhood.

2. Pursuant to S79C(1)(c) of the Environmental Planning and Assessment Act 1979, the site is physically constrained in relation to the developable land given the position of the existing drainage easement and proposed realignment is not acceptable.

3. Pursuant to S79C(1)(e) the proposed development is not considered to be in the public interest given submissions received and concerns raised over this development.

4. The last dwelling contains an attic.

11. On 21 January 2015, the applicant submitted a Section 82A review application, accompanied by amended plans and documentation. The amendments related to the deletion of the attic roof of unit three with additional flood information also provided. That documentation formed the basis of the Section 34 conference that was held prior to this hearing. I terminated the conciliation conference on 21 July 2015 and, in accordance with the Orders of the Court of 29 July 2015, the applicant lodged further amended plans and material on 7 August 2015 and was granted leave to rely on those amended plan which are now plans before the Court (Exhibit A).

The issues

12. The contentions in the case are whether the site is suitable for the development; whether plans to relocate the Council stormwater pipe system are appropriate; whether the overland flow analysis and flood modelling adequately reflects the flood affectation of the site and impact on adjoining properties; whether the proposed on-site stormwater detention tank is adequately designed and whether the landscape plan properly reflects the proposed development.

13. Following the joint conferencing between the stormwater and planning experts, the applicant agreed that the recommendations contained within the expert reports prepared could be addressed through conditions of consent.

14. The council prepared draft without prejudice conditions to reflect the areas of agreement (Exhibit 3) and those conditions have been accepted by the applicant.

15. Accordingly, the council now submits that subject to the Court being satisfied the development is appropriate, there are no reasons why consent should not be granted.

The evidence

16. A site view was undertaken at the first conciliation conference held on 23 April 2015. No resident objectors were present at that view.

17. Expert stormwater drainage analysis and reporting was undertaken by Dr D Martens for the applicant and Mr D Brewsher for the council. At the end of the joint conferencing, they had not agreed as to the level of impact the overland flowpath would have on the development, in particular units 7 and 9 (Exhibit 5). They had no concerns about safety, the issue was the potential for property damage. Mr Brewsher agrees that if the floor level of those units was raised by 200mm this would satisfactorily address his concern. Draft condition Schedule A, condition 3. In addition, revision of the flood study is required (conditions A6 and 7) as is the preparation of a detailed design of the proposed driveway crossing in Wright Street (condition A8).

18. The applicant has agreed to relocate and upgrade the existing stormwater drainage line and grant appropriate easements over that infrastructure, relocate and upsize the proposed on-site detention tank and amend the landscape plan so that it reflects the architectural plans. Draft conditions A4, 5 and 9 and B43).

19. Expert town planning evidence was provided in the form of a Joint Report (Exhibit 4) by Mr A Rowan for the council and Mr G Turrisi for the applicant. To address the planning experts’ concerns about the functionality of the private courtyards, conditions A2, B2d, A2A address those concerns and limit the form of development that can occur in those spaces and require the installation of subsurface drainage.

20. The accessibility of private open space to living areas has also been addressed through conditionB2(b) as has the potential inundation of the basement carpark (conditions A1 and B2(a) ).

21. At the conclusion of the hearing, Ms Puckeridge, for the council submitted that, subject to the imposition of the agreed conditions, there would be no reason why consent should not be granted as those conditions satisfactorily addressed the contentions that remained following termination of the s34 conference.

Conclusion and findings

22. Having regard to the evidence, the amendments made to the plans since the conciliation conference and the draft conditions of consent, I am satisfied that the contentions have been resolved.

23. In accordance with the requirements of s79C of the Environmental Planning and Assessment Act 1979, it is still necessary to consider the matters listed within that section. The proposed development, being multi-dwelling housing, is permissible with consent in the R2 zone and I am satisfied that it is consistent with the objectives of that zone. It complies with all of the relevant development standards in the LEP and also the relevant DCP provisions, in particular the parking required under that plan meets the minimum required of 15 spaces for the proposed 7 x 3 bedroom and 1 x 2 bedroom dwellings.

24. The experts have assessed the likely impacts of the development and, subject to the imposition of conditions, are satisfied that there are no unsatisfactory amenity, flooding or other impacts and that the site would be suitable for the proposed development.

25. In regard to submissions made to the council in response to notification of the application, I note the parking provided complies with the DCP requirement and the council accepts the traffic generated by the development would not adversely impact on the road network. I am satisfied that the design of the development, privacy treatments to be incorporated such as screens and highlight windows in addition to setbacks would address any potential privacy concerns. It is not a contention that the development would result in adverse overshadowing of adjacent properties.

26. For these reasons, it is appropriate that consent be granted.

27. The Orders of the Court are:

1. The appeal is upheld.

2. DA2014/0091 for demolition of two dwelling houses and associated outbuildings and the construction of a multi dwelling housing development containing 8 dwellings (7 x 3 bedroom and 1 x 2 bedroom) with basement parking for 15 cars at 100-102 Wright Street, Hurstville is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits A and 2, are returned.

_______________

Sue Morris

Commissioner of the Court

10083 of 2015 Morris (C)_Annexure A (354 KB, pdf)

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Decision last updated: 23 October 2015