Triple 8 Development Group Pty Limited v Hurstville City Council

[2014] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation:	Triple 8 Development Group Pty Limited v Hurstville City Council [2014] NSWLEC 1242
Hearing dates:	24 November 2014
Decision date:	26 November 2014
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Development application, residential flat building; amended plans address contentions.
Legislation Cited:	State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, Hurstville Local Environmental Plan 2012, Land and Environment Court Act 1979, Environmental Planning and Assessment Act 1979
Texts Cited:	Residential Flat Design Code, Hurstville Development Control Plan No. 1 - LGA Wide
Category:	Principal judgment
Parties:	Triple 8 Development Group Pty Limited (Applicant) Hurstville City Council (Respondent)
Representation:	Mr P Clay SC (Applicant) Ms J Diep Maclarens Lawyers (Applicant) Ms J McGrath Norton Rose Fulbright (Respondent)
File Number(s):	10593 of 2014

Judgment

1. Triple 8 Development Group Pty Ltd sought development consent from Hurstville City Council to construct a residential flat building containing 13 units at Peakhurst. The council refused consent and Triple 8 is appealing that decision.

1. As a result of the joint reporting process, the applicant has prepared amended plans and those plans resolve the contentions in the case.

The site and its context

1. The site comprises two adjoining allotments known as Nos 51 and 53 Trafalgar Street, Peakhurst and is located on the southern side of that street, opposite Peakhurst Park, a large recreation area used for sporting fields and play areas as well as passive recreation.

1. The site has a combined frontage of 31.7m, area of 1159.7sqm and falls from its rear to the street. A public pedestrian path immediately adjoins to the site's eastern boundary and provides access from Gover Street to Trafalgar Street.

1. Development in the vicinity of the site primarily comprises older style single storey detached dwelling houses however there are also newer two storey dwellings, dual occupancy developments and multiunit housing (aged). The area is undergoing a transition from detached housing to higher density development following its rezoning in late 2012.

Background and the proposal

1. Development Application DA2014/0949 was lodged with the council on 20 June 2014 and was refused by the council at a meeting held on 15 October 2014.

1. The application proposes demolition of two existing single storey dwelling houses and the construction of a three storey residential flat building containing thirteen units and basement car parking.

1. The reasons for refusal of the application were non-compliance with applicable planning controls; in particular, State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC), Hurstville Local Environmental Plan 2012 (LEP) and Hurstville Development Control Plan No. 1 - LGA Wide (DCP); adverse impacts on the natural and built environment; the public interest and due to lack of information.

Amendments to the application

1. The council did not grant its staff delegation to enter into conciliation as required under s34 of the Land and Environment Court Act 1979 and accordingly, the matter proceeded directly to hearing. During the joint conferencing, the parties discussed those matters that the council had identified as being either deficient in terms of information to allow proper assessment of the application or unsatisfactory in terms of compliance with the relevant planning controls.

1. Following that joint conferencing, the applicant prepared amended plans that sought to address the contentions in the case.

1. The applicant was granted leave to rely on those plans, the Amendment F plans, during the hearing subject to payment of the those costs of the council that are thrown away as a result of amending the development application, pursuant to s97B of the Environmental Planning and Assessment Act 1979 (EP&AAct) as agreed or assessed.

The planning controls

1. The site is zoned R3 Medium Density Residential under the LEP and residential flat buildings are permitted with consent in that zone. The objectives of the zone are:

• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To ensure that a high level of residential amenity is achieved and maintained.
• To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.

1. Clause 4.3 and 4.4 of the LEP contain development standards relevant to the assessment of the application, those being height (12m maximum permitted) and floor space ratio (FSR) (1:1 maximum permitted).

1. The DCP contains further controls and those relevant to the application are streetscape, building height, building setbacks, privacy and private open space.

The issues

1. The contentions in the case reflect the reasons for refusal of the application.

The evidence

1. Engineering expert evidence was provided from Mr M Ward for the council and Mr G Bucci for the applicant (Exhibit 3). These experts agreed on how the contentions that relate to their area of expertise could be resolved and those recommendations have been incorporated into the Amendment F plans and agreed conditions of consent. These experts were not required for cross examination.

1. A joint report was prepared by Ms G Morrish (urban design), Mr A Betros (town planning) for the council and Mr S Harding (town planning) for the applicant. That report recommended a number of changes that should be made to address the council's contentions. The main changes involved the reduction in width of the basement to increase the area available for landscaping and deep soil planting and improve the layout of the basement carpark in terms of accessibility, bicycle and garbage storage and entry points; improvements to the utility of landscaped areas; reorientation of windows and balconies; change to dwelling designs to improve views and vistas and obtain northerly aspect and general improvement to solar access.

1. The amendment F plans reflect those recommendations and Mr Betros advises that all of the changes that were recommended have been incorporated into those plans with the exception of natural lighting to the lobby on level 1. He did not consider that this would be sufficient grounds for refusal.

Conclusion and findings

1. As a result of the changes made, Ms McGrath for the council advises that the amended plans satisfactorily resolve all of the contentions in the case however, the council's official position is that it opposes the application.

1. Having regard to the evidence and the matters raised in submissions to the council, I am satisfied that the amendments made to the plans provide an appropriate form of development that is fully compliant with the relevant provisions of the LEP, DCP and SEPP65. The proposal is consistent with the future character of the area contemplated under the LEP and DCP and consequently, there is no reason why consent should not be granted.

1. The Orders of the Court are:

(1) Leave is granted to the applicant to rely on amended plans (Amendment F) subject to payment of the those costs of the council that are thrown away as a result of amending the development application, pursuant to s97B of the Environmental Planning and Assessment Act 1979.

(2)   The appeal is upheld.

(3)   Development Application DA2014/0949 for demolition of existing site improvements and the construction of a three storey residential flat building containing basement carparking for 19 cars, associated storage and access areas and 13 units is approved subject to conditions of consent included in Annexure A.

(4)   The exhibits, other than exhibits A and 2 are returned.

_______________

Sue Morris

Commissioner of the Court

Decision last updated: 26 November 2014