Scorpian Securities P/L v Hastings Council

[2005] NSWLEC 608

Land and Environment Court

of New South Wales

CITATION:

Scorpian Securities P/L v Hastings Council [2005] NSWLEC 608

PARTIES:

APPLICANT
Scorpian Securities Pty Limited

RESPONDENT
Hastings Council

FILE NUMBER(S):

10593 of 2005

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- s 96 to amend consent - does it remain substantially the same - implications of a new development control plan - amenity impacts.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hastings Development Control Plan

DATES OF HEARING:

18/10/05

EX TEMPORE JUDGMENT DATE:

10/18/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr K. Webber, solicitor
of Wilshire Webb

RESPONDENT
Mr S. Miles, solicitor
of Donovan Oates Hannaford

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Hoffman

18 October 2005

10593 of 2005 Scorpion Securities Pty Limited v Hastings Shire Council

JUDGMENT

1 This is appeal 10593 of 2005 between Scorpion Securities Pty Limited and Hastings Shire Council in regard to the refusal of a s 96 application to amend consent 2003/0834 issued by the council for an apartment building at No. 18-20 Mort Street. The site is on top of the hill overlooking the Westport Shopping Centre and the river to the north. The consent was granted by council on 23 September 2004 and approved under Development Control Plan 9, a control that has since been replaced by Development Control Plan 49.

2 The s 96 application is to raise the whole building by 1.4 m without any other changes. The council refused this mainly because the building would classify as 4 stories under Development Control Plan 49, when the maximum number of stories is three under that control.

3 The council said the original consent under Development Control Plan was also for a building 3 stories above natural ground level, and therefore the proposed amendment brought about a technical non-compliance with Development Control Plan 49 that made it not substantially the same as approved.

4 It was explained to me how this came about. In Development Control Plan 9 there was no control on the number of stories, only a height limit above natural ground level. It was permitted to excavate below natural ground level to obtain more levels in the building whilst still staying within the height limit above natural ground level, and within the floor space ratio. In Development Control Plan 49 it was no longer possible to obtain additional stories as three stories was the maximum. The approved development being on a hillside had excavated so that it had 4 floors of apartments and a basement car park.

5 The proposal to raise it by 1.4 m came about after consent was granted and the previous building demolished. More test bores were taken at that time where the previous building had been located, and igneous rock was found. Last year during consideration of the original development application nearby residents had been told any rock found might be removed quietly by chemical fracturing.

6 That was, in the applicant’s submission before it was known the extent of the rock and the fact that it is igneous, which is one of the hardest types of rock. Engineering advice is that can only be removed by jackhammers or blasting. The latter cannot be used on this site due to the proximity of houses.

7 By raising the building 1.4 m, the noise, dust and vibration and 400 truck movements can be eliminated. Also it improves several aspects of the amenity of the apartment building. The objectors say all those benefits are only to the advantage of the developer and that they, the objectors, would have dis-benefits.

8 The parties had conferred and considered council staff reports tendered in exhibit B that considered the objectors’ concerns and concluded there would be no impacts that would justify refusal. The parties had been in negotiation prior to this hearing and came to the Court with consent orders and conditions. These were modified during the hearing by annotation in exhibit 5 and additional conditions in exhibit C.

9 The objectors had been advised of the proposed consent orders and letters of objection were tendered in exhibit 2. None of the objectors attended today’s hearing. Some objectors said they should have been included in the neutral evaluation conducted some time before the hearing, but the parties advised that was not a requirement of the Act or Regulations.

10 The parties also pressed that the proposal, as modified, is substantially the same as the original approval. It still has 4 habitable floors and a basement car park, as approved, and the elevations and details and conditions remain the same, except where necessitated to be changed by this minor alteration. The exceptional circumstances of this case would not set a precedent to allow future buildings to exceed the 3 stories set under Development Control Plan 49.

11 Amongst the concerns of the objectors was that the 4th story would enable a change to the currently intended future character of the locality and it could be used as a precedent. In the council reports it said,

“Whilst it is recognised that the building contains four stories, the overall height of the building, including the 1.4 m increase, is considered similar to the potential height of future buildings in the area. For example, a building with a basement car park no more than 1.2 m above ground, three habitable stories with a ceiling height of 3 m, and a possible pitched roof structure adding a further 3 m, could have a total height of just over 13 m.”

12 The comparison of the proposal as intended to be modified, compared to such a design was tendered in exhibit D, illustrating this point.

13 The council report also considered the increase in height and concluded:

“It is unlikely to result in adverse impacts on the natural and built environment for the following reasons:
a) The increase in height is considered relatively minor.
b) Adequate articulation is provided to the building.
c) The increase in height is unlikely to adversely effect any privacy impacts on adjoining residents.
d) The increase in building height is unlikely to adversely increase visual impacts.
e) The position of the building does not change so there are no increased view losses to any neighbours. Nearly all retain panoramic views, if not substantial views, to the north.”

14 In regard to increased overshadowing as a result of the 1.4 m increase in height, the council report said:

“This was unlikely to be of significance because:
a. The increase in building height is considered relatively minor and will not increase the number of stories in the original approved building.
b. The allotment has a north/south orientation. Properties to the east and west of the proposal will not be significantly affected by overshadowing.
c. Whilst overshadowing of portions of the motel to the south of the site will occur throughout the day, the predominant northern aspect of the motel site comprises of a car park. Respective elevations of the motel receive adequate sunlight from the east during the morning and the west in the afternoon.
d. The expectations for solar access for areas permitting multi storey buildings is considered less than areas with conventional two storey height limits. In these circumstances it is considered that reasonable solar access to adjoining developments is maintained.

15 In regard to visual privacy of both the future occupants and the current and future adjacent land owners, the report said their privacy would not be compromised because:

“a) The increase in building height is considered relatively minor and will not increase the number of stories in the originally approved building.
b) The proposed modification does not decrease separation distances between adjacent buildings.
c) There is no reconfiguration of primary living and outdoor areas which are all focussed towards the north resulting in no significant additional overlooking to the east and west.
d) Privacy screens have been provided on the eastern and the western sides, and as a result of exhibit C, the northern elevations for all substantial openings above natural ground level on the building. Whilst the 1.4 m increase would effectively raise the windows of the lowest most habitable floor, a substantial retaining wall, landscaping, and any boundary fencing would effectively prevent any adverse privacy impacts on neighbouring developments and future occupants.”

16 As a result of the evidence tendered before me and the submissions, I have concluded that the consent orders and material in support of them, are correct in that the proposed amendment of raising the building 1.4 m does not make it substantially different to the original approved development, and that any impacts upon its neighbours as a result of the change, are so insignificant they could not justify refusal of the application.

17 Therefore the orders of the Court are, by consent of the parties:

1. The appeal is upheld.
2. The s 96 modification application dated 15 February 2005 to modify development consent 2003/0834 is determined by granting of the application subject to the attached conditions marked A.
3. Exhibit 1 is returned to the respondent. The remaining tenders are retained on the Court’s file.
4. Each party to pay their own costs.

___________________

K G Hoffman
Commissioner of the Court
ljr