Reddy and Ors v Hurstville City Council

[2007] NSWLEC 398

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:      Reddy and Ors v Hurstville City Council [2007]  NSWLEC 398

PARTIES:
APPLICANT
Sri Ranja Gajjela Reddy and G.S.R. Reddy and G.B. Reddy and Bharathi Gajjela Reddy

RESPONDENT
Hurstville City Council

FILE NUMBER(S):    10211 of       2007

CATCHWORDS:      Development Application :- Alterations and additions to existing commercial building, accessibility

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 1994
Beverly Hills Development Control Plan No 12
Beverly Hills Development Control Plan No 19
Building Code of Australia

CASES CITED:

CORAM:       Bly C

DATES OF HEARING:        28/05/07

EX TEMPORE DATE:        28 May 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr S. Kondilios, solicitor
of Maddocks Lawyers

RESPONDENT
Mr P. Rigg, solicitor
of Deacons

JUDGMENT:

ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

29 May 2007

10211 of 2007                 Sri Ranja Gajjela Reddy and G.S.R. Reddy and G.B. Reddy and Bharathi Gajjela Reddy v Hurstville City Council

This decision was given extemporaneously.  It has been revised and edited prior to publication.

JUDGMENT

1. Existing at 477-479 King Georges Road, Beverly Hills is a single-storey commercial building presently occupied by a restaurant.  This building has a rear frontage to Hampton Street which provides access to the existing loading dock and storeroom.  The appeal relates to development application DAC028.01-05, which is for alterations and additions to this existing building by adding two storeys and by the demolition of the existing loading dock.

1. The new first floor will comprise a single dwelling and an area of commercial space.  The commercial space will have access from King Georges Road via a new stairway.  The new second floor is to comprise two new dwellings which will overlook King Georges Road and Hampton Street.  Access to the three dwellings on the first and second floors is to be via a stair which will, consistent with agreed conditions, be 1.5 m wide and 1.31 m wide.

1. The site is included in zone No. 3(c) - Business Centre Zone under Hurstville Local Environmental Plan 1994.  Because the proposed dwellings are attached to a commercial use they are permissible, as is the additional commercial floor space, with development consent.  The relevant objective of the 3(c) zone is to allow for residential development in mixed use buildings with non-residential uses on at least the ground level and residential uses above, so as to promote the vitality of business centres.  Plainly the proposal meets this objective.

2. Also applicable are Development Control Plan No 12 (Beverly Hills) (“DCP 12”) and Development Control Plan 19 (“DCP 19”).  DCP 12 at s 3.2 deals with the commercial centre in King Georges Road where the site is located.  The relevant design principle is to improve amenity for users of new and refurbished buildings by requiring a lift in buildings exceeding two storeys.  Section 4.1.10 has the objective of requiring the provision of accessible dwellings for residents, and this is to be achieved by providing lift access.  The relevant design solution and control is that all buildings with two or more habitable storeys are required to have lifts.  Plainly the proposed development has two habitable storeys and therefore the requirement of DCP 12 is that a lift should be provided.

1. DCP 19, in dealing more particularly with adaptable housing, requires that residential flat buildings, including conversion of industrial buildings and shop top residential developments, requires that in developments containing more than eight dwellings a minimum of one adaptable dwelling should be provided.  This development, containing only three dwellings, is therefore not subject to the adaptable housing requirements.

1. The development application was reported on by council town planners and others, recommending that the application be approved subject to a number of conditions.  The council nevertheless decided that the application should be refused for the reason of non-compliance with the provisions of DCP 12 in relation to buildings with two or more habitable storeys being required to have lifts.  This reason for refusal became the central issue in the case.

2. On behalf of the applicant expert evidence was provided in the nature of a written report by Mr David Crane, a consultant town planner.  In his report Mr Crane considered the issue of the provision of a lift for this building and made a number of points.  Having noted the manner in which the existing building might need to be altered he said that this would require the reclamation of a significant proportion of the existing restaurant area to accommodate the lift and access to it.  Having also noted that the provision of a lift is not a requirement of the Building Code of Australia, (“the BCA”) and that DCP 19 does not require lift access/disabled access for the building, he said that the building is not of a size that would typically achieve the economy of scale required to support the cost of such construction and ongoing maintenance of a lift.  He also noted that the lift would only provide access to three two-bedroom dwellings.  In his experience this is why you do not find buildings of this size being provided with a lift, except perhaps in more salubrious residential locations within newly constructed buildings containing a larger number and size of residential apartments.  In all of the circumstances, it was his opinion that the DCP requirement for the provision of a lift to this particular building would be unreasonable and unjustifiably onerous.

1. As part of the development application process the applicant provided a report prepared by Mr M Relf, an accessibility consultant who is known to the court.  In that report Mr Relf notes that there is no requirement to provide a lift for residential buildings of this kind pursuant to the BCA.  He also noted that under DCP 19 there is also no requirement to provide access to this building.  Whilst not stating that a chairlift should be provided, he in essence, notes that a platform lift could be installed in this development.

2. In my opinion the effective requirement in DCP 12 that a lift be provided for this development would be an unreasonable imposition on a development of this scale.  In reaching this conclusion I have taken into account the provisions of DCP 19 that in dealing specifically with adaptable housing, (being housing for people with a disability), this would not require this development to provide a lift.  In this regard I cannot see why a higher standard of access should be provided for developments of this kind when the more particular access and mobility requirements for adaptable housing do not require such a high level of access.

1. I also give significant weight to the consistent approach between the council town planners and that of Mr Crane that conclude that in effect for a development of this scale the provision of a lift would be unreasonable, noticing in particular the aspect of concern to Mr Crane, that being the absence of a reasonable economy of scale.

1. Whilst I do not find it to be necessary, I note that the development is capable of providing a chairlift associated with the access stair and that unit 1 is capable of being converted into an adaptable dwelling.

1. It is therefore the decision of the Court that:

   1.          The appeal is upheld.

   2.Development application No. DAC028.01-05 for alterations and additions to the existing building at 477-479 King Georges Road, Beverley Hills for residential and commercial purposes is determined by the granting of development consent subject to the conditions in Annexure A hereto.

   3           Exhibits 3 and C are retained.

   ___________________

   T A Bly
   Commissioner of the Court

   ljr