Progress & Properties v Burwood Council

[2008] NSWLEC 1178

Land and Environment Court

of New South Wales

CITATION:

Progress & Properties v Burwood Council [2008] NSWLEC 1178

PARTIES:

Applicant:
Progress & Properties Building Pty Ltd

First Respondent:
Burwood Council

Second Respondent:
Rail Corporation NSW

FILE NUMBER(S):

10238 of 2006

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- application for modificationj of consent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s96

DATES OF HEARING:

12/05/2008 and 13/05/2008

 
DATE OF JUDGMENT: 

15 May 2008

LEGAL REPRESENTATIVES:

Applicant:
Mr M Craig QC and Ms A Pearman, barrister instructed by Ms S Emery, solicitor of Emerys Law Firm

First Respondent:
Mr A Galasso SC instructed by Mr D Baird, solicitor of Maddocks

Second Respondent:
Mr N Thomas, solicitor of Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

15 May 2008

10238 of 2006 Progress & Securities Building Pty Ltd v Burwood Council (First Respondent) Rail Corporation NSW (Second Respondent)

JUDGMENT

1 Senior Commissioner: The is an application under s96 of the Environmental Planning and Assessment Act 1979 to amend a consent, granted by this Court on 13 November 2006, to construct a mixed-use development consisting of dwellings, shops and commercial suites on lots 14 and 15 DP 749949, known as 1 Railway Parade Burwood.

2 Despite minor differences between the council and the applicant on the first day of the hearing, by the end all three parties were in agreement. Although the orders are not by consent, they reflect the wishes of the parties.

The proposal and its history

3 The proposal (as approved and as amended) consists of three towers, flanked by lower buildings (referred to as “shoulders” during the hearing) rising out of a podium. The lower levels are retail and commercial, while the upper levels are residential.

4 The amended proposal raises the height of the podium from five to seven storeys and increases the height of the shoulders as well as of the towers. Floor space ratio (FSR) and the number of apartments are increased and the alignment of the building components in relation to the surrounding streets is changed.

5 The applicant submitted the s96 application in August 2007. Between the date of the Court’s approval and the submission of the s96 application, an Order called the Environmental Planning and Assessment (Burwood Town Centre Planning Panel) Order 2007 established the Burwood Town Centre Planning Panel, giving it the functions of a consent authority in respect of development applications for projects that cost $40 million or more. The subject proposal is such a project.

6 Following notification of the s96 application, the council received two objections, both from the community organisation, Burwood Community Voice. The parties commenced to negotiate, partly under the auspices of this Court and partly outside it. The changes resulting from these negotiations are reflected in Version F of the plans that were tendered at the commencement of the hearing.

Objection by Burwood Community Voice

7 In its two objections the Burwood Community Voice pointed out that the amendment sought to increase the floor space and number of dwellings in the original application, and questioned whether such high-intensity development was suitable for a narrow site. It drew attention to the maximum permissible Floor Space Ratio of 5:1 for the site. This stands in contrast to the actual FSR, which is over 7:1.

8 I note that the maximum FSR of 5:1 was applied to the site on 7 September 2007, after the approval of the original application at a FSR exceeding 6:1, as well as after the lodgement of the s96 application. The council did not argue that the FSR of over 7:1 was excessive. It was common ground that an Objection under State Environmental Planning Policy 1 is not required. I have therefore no basis for concluding that the FSR and/or the number of dwellings are unreasonable.

No matters remained in contentions

9 At the commencement of the hearing, the council’s advocate, Mr Adrian Galasso SC, said that the council’s Further Amended Statement of Contentions had been superseded. He identified the matters that remained in contention as follows:

· The height of the “shoulders” was excessive in relation to the separation between them.

· The western edge of the western shoulder to Block B should align with the eastern edge of the built form of Wynne Avenue.

· The lowest level of residential apartments, the floor level of which is below the stanchions on the railway line, should be converted to commercial use.

10 In respect of the first matter in contention, raised by the council’s planning expert, Mr Lindsay Fletcher in his written report, the council decided not to pursue the issue. Mr Fletcher was not asked to give evidence.

11 In respect of the second matter in contention, on the first day of the hearing the Court heard evidence from three experts on architecture and urban design, Mr Nigel Dickson, Dr Richard Lamb (for the applicant) and Mr Phillip Graus (for the council). Despite the fact that the issue was hotly debated, the next day the three experts came to an agreement that slightly increased the distance between the shoulders of Blocks A and B, but failed to achieve the requirement for an alignment between the shoulder and Wynne Avenue. Mr Graus said that the difficulty of replanning the apartments outweighed the urban design benefit of achieving alignment.

12 In respect of the third matter in contention, raised by the Burwood Town Centre Planning Panel rather than any of the experts, the council decided not to pursue the issue.

13 In the event, by the second day of the hearing the parties came to complete agreement, including the Second Respondent. None of the parties made submissions. While the council did not formally agree to the Court’s making consent orders, in effect if not in name, that is what the following orders are.

Orders

1. The appeal is upheld.

2. Consent is granted to the application under s96 of the Environmental Planning and Assessment Act 1979 to amend the consent, granted by this Court on 13 November 2006, to construct a mixed-use development consisting of dwellings, shops and commercial suites on lots 14 and 15 DP 749949, known as 1 Railway Parade Burwood, subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 4 and A.

________________
Dr John Roseth
Senior Commissioner