Stateland Group v Ashfield Council [No 2]

[2005] NSWLEC 703

Land and Environment Court

of New South Wales

CITATION:

Stateland Group v Ashfield Council [No 2] [2005] NSWLEC 703

PARTIES:

Applicant:
Stateland Group Pty Ltd

Respondent:
Ashfield Municipal Council

FILE NUMBER(S):

11345 of 2004

CORAM:

Roseth SC - Tuor C

KEY ISSUES:

Development Application :- solar access

DATES OF HEARING:

06/12/2005

 
DATE OF JUDGMENT: 

12/13/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr G McKee, solicitor of McKees Legal Solutions

Respondent:
Mr P Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC
Tuor C

13 December 2005

11345 of 2004 Stateland Group Pty Ltd v Ashfield Municipal Council [No 2]

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioners: On 16 August 2005 we published a judgment in an appeal against the refusal by Ashfield Municipal Council (the council) to alter and convert an existing office building and erect a new residential flat building on lot 1 DP 991435, known as 164-174 Liverpool Road, Ashfield. In that judgment we gave our decision on the issues between the parties and directed the applicant to file amended drawings that were to be exhibited and assessed by the Court-appointed expert, Mr D. Chesterman, an architect and urban designer. The applicant was to pay for the additional costs of litigation arising after 16 August 2005.

2 Understanding this judgment requires its being read together with the judgment of 16 August 2005.

The main decisions of the judgment of 16 August 2005

3 The judgment contained four principal findings:

· Building A should set back by 5m from Liverpool Road above the lower element (podium) which continues the two-storey height of existing buildings;

· Building A and B should be separated by 12m;

· Building B should remain in its present form up to the fourth storey. The three levels above, ie the fifth, sixth and seventh storeys should be set back behind the 45o building envelope specified in the Town Centre Strategy and DCP;

· the apartments should comply with the principles and guidelines of State Environmental Planning Policy 65 (SEPP 65) and the Residential Flat Development Code (RFDC) , as far as this is practicable in a high-density town centre location.

The amended proposal

4 The applicant filed an amended proposal that was renotified and assessed by Mr Chesterman, as well as by the council’s planning expert, Mr R Dickson, and the applicant’s expert Mr G Baker, both architects and urban designers. The amended proposal was the subject of a further hearing on 6 December 2005. The council tendered two resident objections to the latest version of the plans; however, these did not raise any new issues. The experts agreed that the proposal responded to the first three of the Court’s findings. Mr Dickson considered that it did not meet the principles and guidelines of SEPP 65 and the RFDC, mainly because it had poor solar aspect. Mr Chesterman made several suggestions to improve the communal open space and to ensure that the landscaping on the edges of the site would be maintained by the Body Corporate, rather than by individual owners. The applicant accepted his suggestions.

5 In the event, at the December hearing the proposal’s solar performance remained the only major issue between the parties. In the council’s submission, the proposal should not receive the benefit of bonus Floor Space Ratio (FSR) of 1:1 (in addition the basic FSR of 2:1), because it does not perform well on solar access. The RFDC sets a guideline for solar access of living rooms at mid-winter of three hours, though this is reduced to two hours in high-density areas. In Mr Dickson’s view, the living rooms should achieve three hours of sunlight, since this is not a high-density environment. We do not accept this. The development itself is certainly high-density. While the surrounding area is only partially high-density, Building A is an existing building and this limits the extent to which it can be re-designed for optimum solar access. Building B, while new, is to the south of Building A, so that most of its north façade is overshadowed at mid-winter. In our opinion, it is reasonable in this case to apply the lesser guideline of two hours.

6 In Building A half the apartments receive at least two hours of solar access. In Building B 78% of the apartments receive at least two hours of sunlight. For the whole development the percentage is 62%. In our opinion, given the constraints of the site, this is an acceptable performance. In light of this finding the argument that the proposal should not receive any bonus FSR falls away. The FSR of the proposal is less than 3:1, which meets the criteria in Local Environmental Plan 1985 and Development Strategy and Development Control Plan - Ashfield Town Centre.

7 In our opinion, the amended proposal before the Court on 6 December 2005, as further amended to respond to Mr Chesterman’s suggestions, is worthy of approval, subject to the conditions agreed to by the parties. The appeal is therefore upheld.

8 The parties agreed to seek agreement on costs and to approach the Court only if they fail to agree.

Orders

1. The appeal is upheld.

2. Development application to alter and convert an existing office building and erect a new residential flat building on lot 1 DP 991435, known as 164-174 Liverpool Road, Ashfield is determined by the grant of consent, subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 13, J and M.

________________
Dr John Roseth
Senior Commissioner

________________
Annelise Tuor
Commissioner