Triple 8 Property Group Pty Ltd v Hurstville City Council

[2014] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:

Triple 8 Property Group Pty Ltd v Hurstville City Council [2014] NSWLEC 1267

Hearing dates:

15 December 2014

Decision date:

16 December 2014

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal upheld

Catchwords:

Development Application, residential flat building, contentions resolved through submission of amended plans.

Legislation Cited:

Hurstville Local Environmental Plan 2012; State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development; Environmental Planning and Assessment Act 1979.

Texts Cited:

Hurstville LGA Wide Development Control Plan No 1; Residential Flat Design Code

Category:

Principal judgment

Parties:

Triple 8 Property Group Pty Ltd (Applicant)

Hurstville City Council (Respondent)

Representation:

Counsel:
Mr P Clay SC (Applicant)

Solicitors:
McLaren Lawyers (Applicant)

Ms V McGrath
Norton Rose Fulbright Lawyers (Respondent)

File Number(s):

10594 of 2014

Judgment

1. Triple 8 Property Group Pty Limited lodged Development Application DA2013/0374 with Hurstville City Council on 13 November 2013 seeking consent to demolish existing dwelling houses at 33-35 Trafalgar Street, Peakhurst and construct a residential flat building. The council refused consent and Triple 8 is appealing that decision.

2. The applicant has prepared amended plans that address the council’s contentions however, the council still opposes the grant of consent.

The site and its context

3. The site comprises two adjoining allotments, Lots 138 and 139 DP 36317 known as Nos 33 and 35 Trafalgar Street, Peakhurst. The lots are regularly shaped and have a combined frontage of 35.35m and site area of 1290sqm. The site has an approximate fall of 7m from rear to the street. Two dwelling houses stand on the site with a number of trees towards the rear of the property that would be retained should consent be granted. Peakhurst Park, a large district park, is located immediately opposite the site.

4. Development in the vicinity of the site comprises a mix of older style single storey dwelling house and newer two storey dwellings and dual occupancy developments. A number of residential flat buildings are under construction following the up zoning of the area in late 2012 to permit that form of development.

Background

5. The application as lodged was considered by the council’s Design Review Panel in January 2014 and found to be unacceptable and require redesign. The council had received a number of objections to the proposal. The main issues raised were excessive bulk and scale, traffic and parking issues, privacy and overshadowing, loss of vegetation, inadequate stormwater drainage and non-compliance with the council’s planning controls.

6. Amended plans were lodged with the council in March and, subject to a number of recommended further changes, were deemed to be acceptable by the Panel.

7. The council considered a report by its officers recommending approval of the application at its meeting on 6 August 2014. The council resolved to refer the application for a redesign to comply more fully with the council’s planning controls.

8. The applicant lodged the appeal on 8 August 2014.

9. As a result of the joint conferencing process between the expert town planners and urban designer, the applicant has prepared further amended plans. The applicant was granted leave to rely on those 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. Those plans are Exhibit A and are the Version G plans. The plans provide for the construction of 14 x 2 bedroom and 1 x I bedroom units with basement parking for 19 cars.

10. The council had lodged a planning proposal with the Department of Planning seeking to rezone the area to R2. The effect of that action would be to prohibit the development of land to which the proposal applies for the purposes of residential flat buildings.

The planning controls

11. The site is zoned R3 Medium Density Residential under Hurstville Local Environmental Plan 2012 (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.

12. 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). The proposal before the Court complies with those development standards.

13. Hurstville LGA Wide Development Control Plan No 1(DCP) contains further controls to complement the LEP.

14. State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (SEPP65) and the associated Residential Flat Design Code (RFDC) are also relevant considerations in relation to the contentions in the case.

The evidence

15. Ms G Morrish (urban design) and Mr A Betros (planning) provided expert evidence for the council with Mr S Harding providing planning evidence for the applicant. Their Joint Report, Exhibit 2, was prepared following preparation of the Version F plans and considers each of the contentions included in the Statement of Facts and Contentions Exhibit 1.

16. Following the site view and an explanation of the further changes made to the Exhibit A plans, Version G, the experts advised that the plans now satisfactorily address each of the contentions. For that reason, they were not required for cross examination.

17. Ms McGrath, for the council, advised the Court that the Council’s planning proposal to downzone the land had been formally refused by the Department on Friday 12 December 2014. It remains the council’s position that consent should not be granted. Despite not being issues identified in the original Statement of Facts and Contention, Ms McGrath notes that the amended plans do not comply with the minimum unit size provisions in the RFDC and private open space provisions contained in the DCP. Units 5, 12 and 13 do not provide 12sqm of private open space however do meet the 10sqm required under the RFDC. Units 5, 12 and 14, all 2 bedroom units are less that the 80sqm recommended by the RFDC however exceed the 70sqm rule of thumb provision for affordable housing units.

Conclusion and findings.

18. Having regard to the evidence, it is apparent that the amendments made to the plans address the contentions in the case. The variations to the balcony and unit size are minor and not reasons to refuse consent. All other planning controls, including the development standards are met. Agreed conditions of consent have been prepared and I am satisfied that the proposal is consistent with the objectives of the council’s planning controls and the future character of the area. Taking into account those matters for consideration included in S79C of the EP&AAct there are no reasons why consent should be refused.

19. The Orders of the Court are:

1. The appeal is upheld.

2. DA2013/0374 for the demolition of existing dwelling houses at 33-35 Trafalgar Street, Peakhurst and the construction of a residential flat building is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits 1 and A, are returned.

_______________

Sue Morris

Commissioner of the Court

**********

Decision last updated: 08 January 2015