Springlands Developments Pty Ltd v Burwood Council

[2017] NSWLEC 1516

Land and Environment Court

New South Wales

Medium Neutral Citation:	Springlands Developments Pty Ltd v Burwood Council [2017] NSWLEC 1516
Hearing dates:	31 August 2017
Date of orders:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld; 2. Development application 53/2016 for demolition of existing structures and the erection of a new 18 storey mixed use building, including 43 residential apartments, 16 serviced apartments, 72 car parking spaces at 12 14 Gloucester Street, Burwood, is approved, subject to the conditions in Annexure “A”; 3. The applicant is to pay the respondent's costs in accordance with s 79B of the Environmental Planning and Assessment Act 1979 as agreed or assessed; 4. The exhibits are returned with the exception of exhibits 1 and A.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and the erection of a new mixed use building – no contentions raised by council – resident concerns
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Burwood Local Environmental Plan 2012 Burwood Development Control Plan 2012 State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Springlands Developments Pty Ltd (Applicant) Burwood Council (Respondent)
Representation:	Solicitors: Ms J Wauchope, Dentons Pty Ltd (Applicant) Ms K Law, Matthews Folbigg Lawyers (Respondent)
File Number(s):	2016/00363973
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of DA52/2016 for the demolition of all existing structures and the construction of a 17 storey mixed use development originally containing 44 residential apartments, 21 serviced apartments and ground floor commercial tenancies over four levels of basement car parking at 12 14 Gloucester Avenue, Burwood. The development includes 553 car parking spaces of which 205 are public spaces.

2. While the council has not agreed to enter into consent orders, the council raises no contentions in the appeal based on the amended plans that are set out below.

3. The council originally filed a Statement of Facts and Contentions that identified the following areas that the application should be refused:

the proposal does not respond to the local character by way of unacceptable impacts on the streetscape;

the built format scale is excessive;

the building separation and setbacks are inadequate;

the building is poorly orientated;

the unacceptable impact on the heritage significance of the nearby terraces;

the internal amenity is poor;

the external amenity impacts are unacceptable;

poor vehicle and pedestrian access; and

inadequate safety and security.

4. Prior to the hearing, the applicant provided amendment plans that sought to address the earlier contentions raised by the council. The amended plans provide for:

amendments to the façade to reduce areas of single materials and increase to the locality;

an 18 storey mixed use building;

43 private residential apartments;

16 serviced apartments;

amended setbacks at podium and levels 5 to 18;

72 car parking spaces;

single lane hard stand vehicular access located to the south of the building;

waste collection area relocated to vehicular access hardstand area;

a residential FSR of 2.97:1;

a commercial FSR of 0.81:1;

a communal space at ground level; and

deep soil landscaping, vegetation buffer on the north and south boundaries.

The site

5. The site is Lots 17 and 18 in DP594. It is rectangular in shape with a 24 m frontage to Gloucester Street, side boundaries of 45 m and a rear boundary of 24 m, giving a total site area of 1,118 sqm. The site contains two single residential dwellings and associated improvements.

6. The locality is predominantly mixed use in character, where the land to the east of the site is a mix of residential and commercial uses in a high rise; part five storey, part 14 and part 15 storeys. The land to the south, fronting George Street comprises nine adjoining terrace houses, known as Lochiel Terrace. The group of terraces is a heritage item identified in the council's local environmental plan. The land to the north comprises of two to three storey apartment buildings, and on the western side of Gloucester Avenue there are a number of old style single storey dwelling houses.

7. The site is located within the Burwood town centre, approximately 300 metres from Burwood Railway Station, 300 metres from Burwood Shopping Centre and 200 metres from Burwood Road and Burwood Park.

Relevant planning controls

8. The site is zoned B4 Mixed Use under Burwood Local Environmental Plan 2012 (LEP 2012). Residential flat buildings and commercial premises are permissible in this zone. Clause 4.3 provides for a maximum height of 60 metres, and cl 4.4 provides for a maximum FSR of 4.5:1. Clause 5.10(4) provides that the Court must consider, before granting consent, the effect of the proposed development, on the heritage significance of any heritage item.

9. Burwood Development Control Plan 2012 (DCP 2012) applies to the site. In particular, pt 3 and cl 3.2.7 applies to residential flat buildings in the B4 zone.

10. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development and the Apartment Design Guide apply to the site.

11. The amended plans satisfy the LEP 2012 development standards for height, FSR and building height plane. The amended plans also satisfy the requirements in DCP 2012 for podium height, street side and rear setbacks, deep soil, communal open space and parking.

The evidence

12. At the hearing, the parties tendered three joint reports. The first report on traffic and parking was prepared by Mr Craig McLaren and Mr Roberto Di Federico. They agree that the contention relating to the pedestrian and vehicle access has been satisfactorily addressed in the amended plans.

13. The second joint report was prepared by Mr Scott Barwick and Mr Dan Brindle who provided evidence on the town planning contentions. This report also agreed that the town planning issues have been satisfactorily addressed in the amended plans.

14. The third joint report addressed urban design and heritage contentions. The urban design report was prepared by Mr Russell Olsson and Ms Karla Castellanos and Mr John Oultram and Ms Jennifer Hill prepared the report on the heritage contentions. Both sets of experts agree that their relevant contentions have been addressed by the amended plans.

15. The Court was provided with a document prepared by a resident of Elsie Street, Burwood, who objected to the amended plans on the basis that it would:

create increased heavier traffic in the area;

the shadow impacts on existing residential development would be unacceptable; and

impact on local resident privacy.

16. Having read the joint reports I am satisfied that the matters raised by the resident of Elsie Street have been satisfactorily addressed in the joint reports prepared by the multiple experts. While there may be additional impacts from the proposed developments, I am satisfied that these impacts have been minimised and are not unreasonable in the context of the zoning and anticipated character of the area.

Orders

17. There being no reason why consent should be granted, the orders of the Court are:

1. The appeal is upheld;

2. Development application 53/2016 for demolition of existing structures and the erection of a new 18 storey mixed use building, including 43 residential apartments, 16 serviced apartments, 72 car parking spaces at 12 14 Gloucester Street, Burwood, is approved, subject to the conditions in Annexure “A”;

3. The applicant is to pay the respondent's costs in accordance with s 79B of the Environmental Planning and Assessment Act 1979 as agreed or assessed;

4. The exhibits are returned with the exception of exhibits 1 and A.

________________

G Brown

Commissioner of the Court

Annexure A (C) (387 KB, pdf)

Decision last updated: 28 September 2017