Tanya Anhtuan (c/o HTC Development) v Strathfield Municipal Council - [2004] NSWLEC 18

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Tanya Anhtuan (c/o HTC Development) v Strathfield Municipal Council [2004] NSWLEC 18

PARTIES:
APPLICANT
Tanya Anhtuan (c/o HTC Development)
RESPONDENT
Strathfield Municipal Council

FILE NUMBER(S): 11228 of 2003

CORAM: Watts C

KEY ISSUES:
Development Application :- Whether or not the requirement for a shower/bath on the ground floor should be deleted from Condition 4 of the approval.
The Court identified a concern with the adequacy of the disabled access ramps to five of the town houses.

LEGISLATION CITED: Strathfield Planning Scheme Ordinance 1969, (SPSO)
Strathfield Local Environmental Plan No 79, (SLEP79)
Draft Strathfield Local Environmental Plan 2003, (DSLEP)
Development Control Plan No 3-Multiple unit housing, (DCP3)
Development Control Plan No 19-Public Notification, (DCP19); and
Environmental Planning and Assessment Act 1979, ss 79C, 96 and 97

CASES CITED:

DATES OF HEARING: 19/02/2004

EX TEMPORE
JUDGMENT DATE : 02/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms M Tzannes, barrister
instructed by
Mr R Creighton, agent
RESPONDENT
Mr D Baird, solicitor with
Ms J Wauchope, solicitor
for Maddocks

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11228 of 2003, 11491 of 2003, 10024 and 10023 of 2004
Watts C
Tanya Anhtuan (c/o HTC Development)
Applicant
v
Strathfield Municipal Council

Respondent
Judgment
1 Erected on two allotments, known as No 45 Henley and No 30 Hornsey Roads, Homebush West, is a nine (9)-x two-storey townhouse development comprising five (5) buildings, which as built, would not strictly comply with development consent No DA9900/414, issued on 6 February 2001.
2 Appeal No 11228 of 2003 relates to the refusal by Strathfield Municipal Council of a development application to strata subdivide 9 x townhouses in development application No 0203/410.
3 Appeal No 11491 of 2003 relates to the refusal by Strathfield Municipal Council of a modification application under s 96(2) of the Environmental Planning & Assessment Act 1979 in development application No 9900/414 for 9 x townhouses.
4 Appeals No 10024 and 10023 of 2004 signed by the applicant on 12 January 2003, relate to the issuing of Order 15 under s 121 of the Environmental Planning & Assessment Act 1979.
5 I visited the land in company with the parties on the morning of the hearing.
6 I have concluded that the appeals should be upheld in part and the parties have agreed to resolve all three hearings by way of consent orders, which I endorse.

The land
7 The land is bounded by Henley Road to the east and Hornsey Road to the west and located between Arthur Street to the south and Tavistock Road to the north (Note: Exhibit 1, Attachment 13).
8 The land comprises two allotments, described as Lots 1 and 15 in Deposited Plan 827 known as No 45 Henley Road and No 30 Hornsey Road, Homebush.
9 The land is rectangular in plan with a frontage to Henley and Hornsey Roads of 15.2m and an area measuring 1,913m2. It slopes from Hornsey Road from the west to Henley Road to the east, with a height difference of over 5m.
10 Two access points are provided: one from Henley Road and the other from Hornsey Road and a landscape strip has been constructed on the northern side of the driveway.
11 The area is ‘changing’ its residential character and being developed with multi-unit housing comprising units, townhouses and villas. Nearby are the Sydney Markets to the north, Sydney Olympic Park to the northwest, Strathfield Town Centre to the east and the Enfield Marshalling yards to the south (Note: Exhibit 1 Attachment 14).
12 Erected on the land is a two-storey townhouse development that comprises five (5) buildings with nine (9) townhouses. Kitchen, living/ dining, study, wc with basin, laundry facilities and garages are located on the ground level and ensuites, bathrooms and bedrooms are on the first floor of the townhouses. Ramped entrances give access to some of the townhouses but presently there area steps to each entrance.

Relevant planning controls

Strathfield Planning Scheme Ordinance 1969, (SPSO)
13 The land is within the Residential 2(b) zone under Strathfield Planning Scheme Ordinance 1969, (SPSO) and as amended by the Strathfield Local Environmental Plan No 79, (SLEP79) (Note: Section 6.4), gazetted on 4 February 2000, townhouses characterised as ‘multiple unit housing’ are now permissible with consent.

“Multiple-unit housing" means housing comprising more than one dwelling, such as villas, townhouses, other buildings containing 2 or more dwellings or other similar forms of housing.

Draft Strathfield Local Environmental Plan 2003,

(DSLEP)

Development Control Plan No 3-Multiple unit housing, (DCP3)
15 DCP3 adopted 20 September 1999 and came into effect on 8 February 2000, is to provide more detailed provisions for the design of multiple unit housing. The applicant questioned its applicability to the application. As it is a hearing de novo the council considers it to apply.

Development Control Plan No 19-Public Notification, (DCP19)
16 DCP19 refers to public information of development applications prior to consideration by the council.

The proposal and its history
17 Development application No DA 9900/ 414 was lodged with the respondent council on 6 February 2001, to modify the application to amend the condition requiring 50% of the town houses to be designed for disabled persons and to remove the requirement that a shower/ bath be provided to the ground floor of five of the townhouses.
18 Development application No DA 0203/ 410 was lodged with the respondent council on 24 January 2003 to strata subdivide the nine (9) townhouses.
19 History of the original development application, [Note: Exhibit 1]:

28 April 2000: Development application submitted for demolition of existing building and erection of nine townhouses (7 x 3 bedroom and 2 x 2 bedroom).
5 September 2000: Letter to applicant advising preliminary assessment and reference to DCP 3 - refer to attachment 3.
2 November 2000: Amended plans (referenced DA-01 99/150 Issue 13), received showing separate study within townhouse units 1, 4, 5 and 6.
29 November 2000: The amended plans were re-notified.
6 February 2001: Council considered the development application DA9900/414. Within the report, it states that:

The application when initially submitted did not fully comply with Council's DCP in regard to the requirement of 50% of the townhouses being provided with bedrooms on ground level. Other issues were raised with the applicant which have since been clarified and amending plans were received on 2 November 2000 which are the subject of the current application.

6 February 2001: Development Consent determined by approval with conditions.
24 September 2001: Private Certifier nominated and Construction Certificate No. 6701 dated 19 September 2001 submitted to Council.
23 December 2002: Occupation Certificate issued by Private Certifier.
24 January 2003: Submission of Development Application No 0203/410 for the strata subdivision of 9 townhouses.
February/March: From this point, application for the strata subdivision is assessed for compliance with the Council approved development. In this instance, the construction certificate plans for the 9 townhouses were inspected and found that the development as built was not in accordance with the Development Consent.
March/April: The Private Certifier was advised by phone that during assessment of the strata proposal, the construction plans did not comply with the Development Consent.
4 April 2003: Letter from Private Certifier referring back to previous discussions with Council staff – [Note: Exhibit 1 Attachment 4].
20 May 2003: Applicant/owner of strata proposal was formally advised of the non-compliance with Condition No 4 – [Note: Exhibit 1 Attachment 6].
21 May 2003: File note concerning discussions with an officer from the Ombudsman's Office – [Note: Exhibit 1 Attachment 7].
4 June 2003: Section 96 modification application submitted to the council with a request to vary Condition No 4 of the development consent to remove the words ‘shower/bath’ and a letter dated 29 May 2003 gave reasons for the modification – [Note: Exhibit1 Attachment 8].
Prior to 19 August: Undated letter from architect relying on previous discussions with previous town planner, stating that Condition No 4 was not appropriate - [Note: Exhibit 1 Attachment 9].
19 August 2003: Consideration of s 96 application and DA0203/410 to subdivide the 9 townhouses by strata. The reasons for refusal are outlined within the Council report (Note: Exhibit 1 Attachment 10).
7 January 2004: Section 121 Order No 15 issued and sought compliance with Condition No 4.

Notification
20 Under the provisions of DCP19, the s 96(2) modification application was not notified due to the minimal impact and no prejudice and strata subdivisions are not notified. So there were no objections to either application.

The council’s decisions
21 By notice of determination dated 5 September 2003, the council refused the strata subdivision [Note: Exhibit 1 Attachment 11].
22 By notice of determination dated 10 September 2003, the council refused the s 96(2) modification application of Colin De Lore & Associates [Note: Exhibit 1 Attachment 12].

The hearing
23 Appeal No 11228 of 2003 that relates to the refusal of a development application to strata subdivide nine (9) townhouses in development application No 0203/410, at the land, was served on the council on 28 October 2003.
24 Appeal No 11491 of 2003 relates to the refusal of a modification application under s 96(2) of the Environmental Planning & Assessment Act 1979 for development application No 9900/414 to amend the Condition No 4 to remove the ‘shower/ bath’ requirement on the ground floor, served on the council on 8 December 2003.
25 Appeals No 10024 and 10023 of 2004 signed by the applicant on 12 January 2003, relate to the issuing of Order 15 under s 121 of the Environmental Planning & Assessment Act 1979. Both appeals relate to the common issue that is whether the applicant should be compelled to carry out the modification works in compliance with Condition No 4. Or whether the condition should be modified.
26 At the hearing the court received written evidence on behalf of the respondent council from:

Mr Johnston, townplanner of Strathfield Council.

Mr J Boers, consultant town planner.

28 On site I heard from Mr C De Lore and representatives of the applicant.

The issues
30 On 20 November 2003, the respondent filed a statement of issues in respect of Appeal No 11228 of 2003:

The Respondent raises the following preliminary questions of law for determination by the Court.

1.

Whether the construction certificate issued in relation to development application 9900/414 in relation to 45 Henley Road and 30 Hornsey Road is valid.

2.

Whether the occupation certificate issued in relation to development application 9900/414 in relation to 45 Henley Road and 30 Hornsey Road is valid.

3.

Whether, if the answer to question 1 or 2 is no, whether a strata subdivision certificate the subject of this application can be approved (s109J(1)(c) EP&A Act).

4.

If the answer to 3 is no, whether the application for subdivision approval is futile.

The Respondent raises the following issues for determination by the Court:

Whether the strata subdivision application should be approved, having regard to the following:

5.

Whether the development complies with Condition 4 of Development Consent 9900/414.

6.

Whether the development complies with Strathfield Development Control Plan No.3 Multiple Unit Housing clause 2.3, and in particular:

(a)

Objective 2.3

(b)

Guideline and requirements at clause 2.3, as follows: 2 and 8.

7.

Whether approving the application in the circumstances promotes the orderly and economic use and development of land pursuant to the Environmental Planning and Assessment Act 1979 section 5.

8.

Whether it is in the public interest to approve a subdivision where the development does not comply with the applicable development consent.

1. Whether the application to modify the Development Application results in substantially the same development as the development in the approved Development Application.

2. Whether the amendment to the Development Application should be approved.

3. Whether the Respondent Council should be estopped from enforcing Condition 4 of the approved Development Application on the basis of representations made by Council officers to representatives of the Applicant and on the basis of the issuance of the stamped approved plans annexed to the approved Development Application and the Construction Certificate.

4.

Whether the Respondent Council should be entitled to enforce Condition 4 of the Development Application by way of an Order.

The evidence and findings
33 As the parties have agreed without a contested hearing there is no need to make formal findings. In any event I endorse the conclusions reached by the parties in their negotiations.
34 The terms of the agreement are:

In respect of Appeal No 11228 of 2003 that relates to the refusal of a development application to strata subdivide nine (9) townhouses in development application No 0203/ 410, by consent the appeal is upheld in part so as to allow a staged subdivision of seven townhouses and two townhouses. In respect of the two townhouses in Stage 2, (Townhouses No 1 and 6) the applicant agrees to the construction of a shower and associated plumbing electrical and tiling works on the ground floor under the existing staircase. The applicant also agrees that the two ramps of Townhouses No 1 and 6 will be modified to comply with the AS 1428.1-2001. The other three ramps to Townhouses No 3, 5, and 8 will be modified to have ramped access to eliminate the step at the entrance door. The council acknowledges that, and raises no objection to, the shower modification not complying in all respects with disabled shower requirements of AS 1428.1-2001. The shower recess shall be designed to provide for a laundry tub and shower within the existing space of the laundry and the washing machine shall be relocated under the stair. A glass screen will be installed between the new tub position and the shower. A shower curtain will be installed in front of the shower on the hallway entrance to the shower.
In respect of Appeal No 11491 of 2003 that relates to the refusal of a modification application under s 96(2) of the Environmental Planning & Assessment Act 1979 in development application No 9900/ 414, the parties have agreed by consent that the appeal be upheld in part. The applicant consented to meet the council’s requirements to provide only two showers in terms of the works previously described.
In respect of Appeals No 10024 and 10023 of 2004 that relate to the issuing of Order 15 under s 121 of the Environmental Planning & Assessment Act 1979, the parties have agreed that the order be varied. On the site inspection I was not satisfied that the disabled ramps to the entrance to five of the townhouses was adequate. There was no issue between the parties in respect of the ramps, however, the applicant does not raise objection to the Court including further modification to this in the modified order.

Orders
36 My orders by consent are:

1. Appeal No 11228 of 2003 under s 97 of the Environmental Planning and Assessment Act 1979 is upheld in part.

2. Appeal No 11491 of 2003 under s 96(2) of the Environmental Planning & Assessment Act 1979 is upheld in part.

3. Appeals No 10024 and 10023 of 2004 signed by the applicant on 12 January 2003, that relate to the issuing of Order 15 under s 121 of the Environmental Planning & Assessment Act 1979 is upheld in part.

4. Development application No 0203/ 410 lodged with the respondent council on 24 January 2003 to strata subdivide nine (9) townhouses at Lots 1 and 15 in Deposited Plan 827, known as No 45 Henley Road and No 30 Hornsey Road, Homebush, is approved as a two stage development. Stage 1 relating to Townhouses No 2, 3, 4, 5, 7, 8 and 9 is approved unconditionally. Stage 2 relating to Townhouses No 1 and 6 is approved subject to compliance with Order No 15 as varied and subject to the Conditions 1 and 2 in Annexure A.

Environmental Planning & Assessment Act 1979

7. The parties have leave to apply with three days notice.

8. The exhibits are retained.

Commissioner of the Court

Conditions of development consent

Annexure A

Tanya Anhtuan (c/o HTC Development)
v
Strathfield Municipal Council

2. The council acknowledges that, and raises no objection to, the shower modification not complying in all respects with disabled shower requirements of AS 1428.1-2001.

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Citations

Tanya Anhtuan (c/o HTC Development) v Strathfield Municipal Council [2004] NSWLEC 18

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CITATION:	Tanya Anhtuan (c/o HTC Development) v Strathfield Municipal Council [2004] NSWLEC 18
PARTIES:	APPLICANT Tanya Anhtuan (c/o HTC Development) RESPONDENT Strathfield Municipal Council
FILE NUMBER(S):	11228 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Whether or not the requirement for a shower/bath on the ground floor should be deleted from Condition 4 of the approval. The Court identified a concern with the adequacy of the disabled access ramps to five of the town houses.
LEGISLATION CITED:	Strathfield Planning Scheme Ordinance 1969, (SPSO) Strathfield Local Environmental Plan No 79, (SLEP79) Draft Strathfield Local Environmental Plan 2003, (DSLEP) Development Control Plan No 3-Multiple unit housing, (DCP3) Development Control Plan No 19-Public Notification, (DCP19); and Environmental Planning and Assessment Act 1979, ss 79C, 96 and 97
CASES CITED:
DATES OF HEARING:	19/02/2004
EX TEMPORE JUDGMENT DATE :	02/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms M Tzannes, barrister instructed by Mr R Creighton, agent RESPONDENT Mr D Baird, solicitor with Ms J Wauchope, solicitor for Maddocks