Terminus Street Trust v Liverpool City Council
[2006] NSWLEC 321
•05/25/2006
Land and Environment Court
of New South Wales
CITATION: Terminus Street Trust v Liverpool City Council [2006] NSWLEC 321 PARTIES: APPLICANT
RESPONDENT
Terminus Street Trust
Liverpool City CouncilFILE NUMBER(S): 10432 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Mixed use commercial residential building, heritage, amenity, consent orders. LEGISLATION CITED: Liverpool City Centre – Development Control Plan 30
Liverpool Local Environmental Plan 1997
State Environmental Planning and Policy No. 65 – Design Quality of Residential Development
Environmental Planning and Assessment Act 1979DATES OF HEARING: 25/05/2006 EX TEMPORE JUDGMENT DATE: 05/25/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr M. Astill, barrister
Instructed by Ms H. Crowther
of Blake Dawson-WaldronRESPONDENT
Mr Baird, solicitor
of Maddocks
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
25 May 2006
JUDGMENT10432 of 2005 Terminus Street Trust v Liverpool City Council
1 This appeal relates to Development Application No. 2340/04 involving the erection of a part 4, part 9 and part 12 storey mixed use commercial/residential building comprising 50 dwellings and approximately 1050 sq m of commercial floor space. A number of existing single storey commercial buildings on the site are to be demolished.
2 The proposed buildings include a 2-storey podium structure built substantially boundary to boundary although this is setback at the street interface with the adjoining property at No 2 Charles Street.
3 The irregular shaped site is known as 126 -134 Terminus Street, Liverpool and comprises lots 1 and 2, DP 834810. It has a total area of 1683 sq m. Car parking is provided in basements with access off the rear lane, which is known as Nagle Serviceway.
4 The site is located on the southern edge of the central business district of Liverpool, essentially where the 3(a) Commercial Zone ends and the 2(c) Residential – Flat Buildings zone begins. It is also located just outside the area defined as the “city core” in Liverpool City Centre – Development Control Plan 30 (“DCP 30”)
5 According to the Statement of Basic Facts the general built form of the adjoining area is predominantly 2 to 3 storey commercial and residential buildings. Being included in zone 3(a) General Business under Liverpool Local Environmental Plan 1997, (“the LEP”) shops commercial premises and residential flat buildings are permissible with development consent. The LEP does not contain any relevantly applicable development standards.
6 Also applicable to the site in terms of standards is DCP 30 and State Environmental Planning and Policy No. 65 – Design Quality of Residential Development. It is to be noted that DCP 30 was amended following the lodgement of the subject development application. The most notable change to DCP30 was the reduction of the effective maximum building height of 17 storeys down to 8 storeys. However the 8 storey limit is not applicable because of the savings provision in cl 2.11.
7 As a result of the advertising of the original proposal one submission was received from Mr and Mrs McVicker whose home at No. 2 Charles Street is a heritage item under the LEP. That submission objected to the proposal and expresses concerns in relations to the applicable planning controls and amenity impacts including overshadowing and overlooking.
8 On the advice of one of its town planners the Council refused the development application on 16 April 2005 for reasons relating to non-compliance with the requirements of the LEP and the DCP and SEPP 65 as well as being out of character and scale with the existing locality and the desired future character of the locality.
9 Following the lodgement of the appeal Ms Bindon, a consultant town planner and Mr Staas, a heritage consultant were appointed by the Court with the agreement of the parties as their joint experts to deal with their respective areas of expertise. Those experts dealt with the Statement of Issues which identifies the following issues:
- height streetscape and context;
- heritage;
- surban design;
- separation and setback;
- overshadowing;
- car parking;
- overdevelopment of the site;
- objectives of the 3(a) zone;
- public interest; and
- objections.
10 Following an intensive review of the issues involving the Court appointed experts, Council officers and the applicant a revised scheme was produced which differed from the original scheme in two significant respects, the lowering of the building from 17 storeys to 12 storeys and the reduction in the level of the height podium from 3 storeys to what now amounts to something slightly greater than one storey. These changes and other modifications to the scheme have resulted in the Council now agreeing that the proposal warrants approval and has together with the applicant invited the Court to make consent orders to enable the development to proceed.
11 More recently, additional objections to the proposal have been provided as well as an extensive elaboration of the concerns of Mr and Mrs McVicker by Mr S Layman, a consultant architect and town planner and Mr J Mathias a heritage consultant. Their comprehensive written objections were accepted by the council and tendered to the Court. In addition, when the Court visited the site Mr Layman was given the opportunity to explain his client’s objections.
12 The Court also took the opportunity to visit the homes of Mr S Thandi of 51/100 Terminus Street, Liverpool and Mr S Malesevic 31/100 Terminus Street, Liverpool. Their concerns involve the potential devaluation of their properties resulting from the proximity of a development as large as is proposed and the associated loss of views, loss of privacy and overshadowing. I considered these concerns whilst on-site and taking into account the assistance provided to me by Mr Coburn, the council town planner, I do not accept that their concerns are such as to require any modification to the proposal or indeed its refusal. Similarly I do not accept that the amenity impacts on the McVicker property would require a modification or rejection of the proposal, although I note a number of additional conditions associated with landscaping, dilapidation report and privacy have been accepted by the applicant. The other concerns raised by Mr Mathias and Mr Layman on behalf of the McVickers involve the impact of the proposal on the heritage significance of the house at No. 2.
13 Being a heritage item cl 71 of the LEP requires that new development should be sympathetic to and should not detract from the heritage significance of heritage items. Clause 73 requires that consent can only be granted to development on land in the vicinity of the heritage item if it would not diminish the heritage significance of the item and its setting and is compatible with the item in terms of matters such as height and scale, form and massing and setting.
14 The heritage issue was dealt with by Mr Staas in his report in relation to the original proposal and he found no fault with that proposal taking into account the applicable planning controls that facilitate a substantial redevelopment of this site. I prefer the evidence of Mr Staas over that of Mr Mathias. His approach of taking into account heritage significance together with the other applicable planning controls is, in this context correct. Having considered his detailed analysis of the heritage significance of the heritage item I agree that the impacts of the proposal will not so affect it that the application should be refused. I also note that the proposal has been significantly improved since Mr Staas’ original consideration. I have particularly considered the proposal’s built form and its relationship to the heritage item and taking into account that the curtilage of the item has already been lost. The outcome is in my view appropriate.
15 Mr Layman also raised the planning principles in Project Venture Developments v Pittwater Council 2005 NSW LEC 191 and Anglican Church Property Trust v Sydney City Council 2003 NSW LEC 353.
16 In relation to the Anglican Church principle which deals with heritage, I would reach the same conclusion as already indicated and would distinguish that principle on the basis of the particular circumstances involved in this case. As for the compatibility principle in Project Venture for essentially the same reasons, I would accept that the significant difference in scale and height with the property at No. 2 is indicated by the planning controls and, given the manner of the form and massing and the stepping back and articulation of the building are proposed this is a satisfactory outcome.
17 More generally I was taken through each of the issues that were originally of concern to the Council and again I was assisted by Mr Coburn. I now understand how the Council has reached the conclusion that, taking into account all of the evidence including that of Ms Bindon and Mr Staas, these matters are no longer of such concern as to require the refusal of the application I accept those explanations.
18 In the circumstances, I have therefore decided that the application warrants approval and would make the orders essentially as contained in the consent orders provided by the parties.
___________________
T A Bly
Commissioner of the Court
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