Universal Property Group Pty Ltd v Penrith City Council

[2018] NSWLEC 1096

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Universal Property Group Pty Ltd v Penrith City Council [2018] NSWLEC 1096
Hearing dates:	19,20 February 2018
Date of orders:	01 March 2018
Decision date:	01 March 2018
Jurisdiction:	Class 1
Before:	Brown C and Walsh C
Decision:	1. The appeal is upheld. 2. Development Application 16/1310 for a shop-top housing development at 144 Henry Lawson Avenue, Werrington is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, A and T.
Catchwords:	DEVELOPMENT APPLICATION: shop-top housing development; agreement on contentions by parties but local resident objection remain
Legislation Cited:	Environmental Planning and Assessment Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy No. 65
Category:	Principal judgment
Parties:	Universal Property Group Pty Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicant) Mr M Seymour, barrister (Respondent)     Solicitors: Swaab Attorneys (Applicant) Dentons Australia (Respondent)
File Number(s):	2017/67757
Publication restriction:	No

Judgment

1. COMMISSIONERS: This is an appeal against the refusal of Development Application 16/1310 for a shop-top housing development containing:

• ground floor retail and business premises,

• 27 x 2 bedroom units,

• 22 x 3 bedroom units, and

• basement car parking, roadworks, garbage facilities, storm water detention, landscaping works and tree removal.

2. In the Amended Statement of Facts and Contentions, the council maintains that the application should be refused for the following reasons:

• non-satisfaction with zone objectives,

• excessive height,

• contamination,

• urban design, particularly in relation to adjoining development,

• water quality,

• waste management, and

• electro-magnetic radiation.

3. A number of residents provided evidence on the site inspection and raised the following additional concerns beyond those raised by the council. These are discussed later in the judgment.

4. Following the submission of amended plans and the provision of additional information a number of the contentions raised by the council were no longer pressed leaving only the contention relating to the impact on adjoining properties in contention. This contention was discussed further at the hearing and agreement was also reached on this contention.

The site

5. At the time of the hearing, the development formed part of 144 Henry Lawson Avenue, Werrington (Lot 31 DP 576288). It is presently occupied by the Henry Lawson Club and includes a telecommunications tower and ancillary infrastructure. Lot 31 has an area of 15,920sqm.

6. The application provides for the subdivision with the proposed shop-top housing located on proposed Lot 1 (the site). The site is vacant and is an L shaped allotment with a frontage of 44.9m to Henry Lawson Avenue, depth of 109.25m and an area of 6,824m2. The site will have vehicular access from Henry Lawson Avenue although the site has a frontage to Dunheved Road, however road access is not permitted to this road. The telecommunications tower and ancillary infrastructure are to be retained within the site.

7. The locality is a mixture of business land uses and residential development. An existing Caltex Service Station is located immediately to the south of the site, with residential zoned land to the east and west and predominantly contains detached outbuildings

Relevant planning controls

8. The site is zoned B2 Local Centre under Penrith Local Environmental Plan 2010 (LEP 2010). Shop-top housing is a permissible use in this zone, with consent. Land directly adjoining the site to the east and west is zoned R2 Low Density Residential under LEP 2010. Clause 2.3(2) requires the Court to have regard to the B2 zone objectives when considering the application. TheB2 zone objectives are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide retail facilities for the local community commensurate with the centre's role in the local and regional retail hierarchy.

• To ensure that future housing does not detract from the economic and employment functions of a centre.

• To ensure that development reflects the desired future character and dwelling densities of the area.

9. Clause 4.3 of LEP 2010 prescribes a maximum building height of 15m and cl 4.4 of the LEP 2010 prescribes a maximum floor space ratio (FSR) of 1:1 for the site. There was agreement that the proposed development satisfied the FSR development standard but not the height development standard. A written request to vary the height standard was provided to show why the variation was acceptable. The council did not oppose the variation because it was limited to the centrally located lift overruns (and other reasons). Having reviewed the written request we agree that the variation can be supported for the reasons set out in the written request

10. Penrith Development Control Plan 2014 (DCP 2014) applies to the site. The relevant parts are C1 Site Planning and Design Principles. C3 Water Management, C4 Land Management, C5 Waste Management, C10 Transport, Access and Parking, C11 Subdivision, C12 Noise and Vibration and C13 Infrastructure and Services.

11. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

The resident submissions

12. The residents who provided evidence on the site inspection raised a number of areas of concern (Exhibit 3). These can be grouped or summarised into the following main planning areas;

• adverse impacts on the character of Werrington.

• compatibility with existing adjoining land uses,

• excessive building height, overdevelopment

• traffic and parking congestion,

• overlooking and overshadowing,

• potential impact from adjoining 24 hour service station,

• safety and security concerns,

• contamination,

• removal of significant trees,

• location of existing telecommunication tower,

• inappropriate location of communal open space, and

• inadequate landscaping.

Adverse impacts on the character of Werrington/ compatibility with existing adjoining land uses.

13. The form of the proposed development is consistent to that anticipated by the B2 Local Centre zoning of the site. This a different character to that of the surrounding R2 Low Density Residential zoned land (including the adjoining licensed club which is also zoned R2 Low Density Residential).

Excessive building height/overdevelopment

14. The approved development satisfies the height requirement in cl 4.3 of LEP 2010 (with the exception of the lift overruns located centrally on the buildings) as well as most other development requirements and provides greater setbacks to the more sensitive single dwelling neighbours to the west.

Traffic and parking

15. The amended plans addressed the council concerns relating to circulation within the basement carpark and the council’s traffic engineer stated that the traffic generated by the proposed development “can be accommodated in the precinct road network”.

Overlooking and overshadowing

16. Overlooking was a concern expressed by residents in Grazier Crescent given the three residential levels above the ground level retail. We agree that the site is a difficult site to develop given that the neighbours consist of a registered club, a 24 hour service station, a telecommunications tower and low density residential development. We accept that all possible attempts have been made to provide a development that minimises the overlooking impacts through generous setbacks and landscaping in those setbacks. Given the orientation of the site; there will be no unacceptable overshadowing impacts.

Potential impact from adjoining 24 hour service station

17. The service station operates under an existing consent that permits 24 hour operation. It is difficult to determine whether noise from this location will impact on future residents however protection is available under the Protection of the Environment Operations Act 1997 for “offensive noise”, if required.

Safety and security concerns

18. There is no evidence to suggest that the development of the site will create any change in safety in the area. The Crime Prevention Through Environmental Design Assessment (October 2017) by “gln planning” concludes that the “design is acceptable subject to recommended conditions of consent”.

Removal of significant trees

19. The Arboricultural Impact Assessment (August 2017) by Urban Forestry Australia concludes that 27 trees are located on the site and 23 trees will be removed because of their location within or close to the building footprint. We accept that given the zoning of the site and the council’s planning controls, the removal of the trees is necessary. The report identifies measures to manage the remaining trees.

Electromagnetic radiation

20. The Electromagnetic Field, Stray Current & Electrolysis Assessment (January 2018) by N G Childs & Associates state that “the site is suitable for the commercial and residential apartment development as proposed and that no particular mitigation or control actions, other than approved design consideration to take into account the physical form and operational amenity of the mobile phone tower adjacent to the site, are required in relation to electromagnetic field, stray current and electrolysis effects identified at the site”.

Contamination

21. A detailed Contamination Site Investigation Report (June 2017) by Geotesta concluded that “the site is considered suitable for the proposed land use for residential development” and that “the site has no further environmental contamination investigation works”.

Communal open space

22. The communal open space has been removed from Block B although the communal area on the roof remains at Blocks A and C. These areas are centrally located on the roof to avoid overlooking. The use of these areas can be controlled through the Owners Corporation and condition 97 provides that the roof top communal areas are not to be used after 10PM, 7 days per week.

Inadequate landscaping.

23. We are satisfied that the setbacks and landscaping, particularly to the residential dwellings, to the west, is acceptable. The setbacks are 9m to over 10m to the edge of the balcony and further to the face of the buildings. This area is proposed to be landscaped in accordance with the approved landscape plans.

24. For these reasons, there is no basis to deny the granting of development consent.

Conditions of consent

25. The parties agreed on the conditions of consent with the exception of condition 2 where the council required that prior to the issue of a Construction Certificate for any building work in the documents set out in condition 2; the plans are to be submitted to council for approval. The applicant proposes that prior to the appointment of a certifying authority the documents set out in condition 2 are to be submitted to council, without the need for council approval.

26. We accept the approach of the applicant as it reflects the provisions of s 109D(1)(b) of the Environmental Planning and Assessment Act 1979 where it provides that “ a construction certificate may be issued by a consent authority, the council or an accredited certifier”.

Orders

27. The Court Orders:

1. Leave is granted to rely on the amended plans set out in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Application 16/1310 for a shop-top housing development at 144 Henry Lawson Avenue, Werrington is approved subject to the conditions in Annexure A.

4. The exhibits are returned with the exception of exhibits 2, A and T.

5. Payment of costs under s97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

__________

G Brown

Commissioner of the Court

___________

P Walsh

Commissioner of the Court

Annexure A (178 KB, pdf)

Amendments

04 May 2018 - Pursuant to UCPR 36.17, the slip rule, amend Orders of 1 March 2018 inserting (1) and (5).

28 October 2019 - By consent and pursuant to UCPR 36.17, amend Condition 54 of the Conditions of Consent, being Annexure A to the Court’s orders of 1 March 2018 by replacing the words “Lethbridge Street” with the words “Henry Lawson Avenue”.

Decision last updated: 28 October 2019