Zanotto v Griffith City Council

[2008] NSWLEC 1133

Land and Environment Court

of New South Wales

CITATION:

Zanotto v Griffith City Council [2008] NSWLEC 1133

PARTIES:

APPLICANT
Francis Zanotto

RESPONDENT
Griffith City Council

FILE NUMBER(S):

10836 of 2007

CORAM:

Hoffman C

KEY ISSUES:

Section 97 Appeal :- Conditions of consent, stormwater detention, consolidation of lots, fire escape, contributions for water supply and sewerage, requirement for kerb and gutter and footpath.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Griffith Local Environmental Plan 2002
Water Management Act 2000
Section 64 Determination of Equivalent Tenements Guidelines
Water Management (Water Supply Authorities) Regulation 2004

DATES OF HEARING:

06/02/2008

 
DATE OF JUDGMENT: 

9 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr Zanotto, litigant in person

RESPONDENT
Mr S. Griffiths, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 April 2008.

10836 of 2007 Francis Zanotto v Griffith City Council

JUDGMENT

1 This is a Class 1 Appeal No. 10836 of 2007 between Francis Zanotto and Griffith City Council in regard to conditions of Development Consent No.241/2006 to change existing disused squash courts into a hostel and to carry out related construction works and parking.

The site

2 The property is at Nos.72-76 Benerembah Street, Griffith. The land is a corner property with frontage to Griffin Lane at the south side and Benerembah Lane on the west side. There are 3 allotments on the property. Lots 14 and 15 are mostly covered by the squash courts building, but there is a yardspace at the rear fronting Benerembah Lane. The yard wraps around the building on its south side up to about half the length of the Griffin lane frontage, from there towards Benerembah Street the building is on the boundary.

The proposal

3 Within the yardspace on Lot 15 is an existing small shed to be converted to a laundry. Part of a larger shed in the same yard is on Lot 14 and the shed extends onto Lot 13. The large shed backs onto the Benerembah Lane boundary and is accessed from vacant area on Lot 13 that runs from the shed up to Benerembah Street. The shed is to provide 2 lock-up garages and 4 carport spaces. The vacant area is mainly on Lot 13 and partly on Lot 14. The area provides driveway access off Benerembah Street and a further 14 car spaces including one disabled person carspace. This provides a total of 20 on-site car spaces.

4 The squash courts building has a small front setback to Benerembah Street. There are seven existing courts in the building arranged on either side of a wide central corridor. On the ground floor one of the courts becomes the communal toilets/showers, another becomes a disable persons suite with 2 bedrooms, en suite and kitchenette. Four other courts become dormitories and the last one, which was the exhibition court becomes a games room/theatrette. The original change room on the ground floor becomes another small dormitory with ensuite. There is a fire exit out into the south yard very close to the Griffin Lane boundary.

5 On the second floor, the squash courts having very high ceilings, has enabled a floor structure to be proposed, so that five of the courts become dormitories at the 2nd floor level. One other court at this level becomes a dining room and kitchen, and the 7th court that is converted to the games/theatrette remains open to the ground floor, and accessible to the ground floor via the tiered seating previously used for the exhibition squash court. There is no external fire exit proposed for the 2nd storey although there are two internal staircases, one in the entry lobby off the street and the other in the wide access corridor between the Courts, now proposed as dormitories.

The evidence

6 The matter was heard at an on-site hearing, the Applicant was self-represented. The Respondent was represented by Mr S Griffiths, solicitor; Mr G L Gordon, council’s engineer and Development Services Coordinator; Mr G A W Cilliers, town planner and council’s City Planning Manager.

7 The development application had been by a Mr Matthew Higgins, builder. The appeal is by Mr Zanotto. Mr Zanotto tendered Exhibit D an authority from Mr Higgins transferring the development application to Mr Zanotto. The respondent accepted the tender, and thus the appeal could proceed.

8 The conditions contested are fairly specific as is the evidence related to them, so I will deal with them seriatim. The consent is sectioned up into Parts, with each part having its own numbers starting at No.1.

9 Part B Condition 39. This requires stormwater detention on site in order that the peak discharge from the “proposed developed area” does not exceed the discharge from the “undeveloped” area up to the 1 in 100 year storm event.

10 It was clarified at the hearing that the “undeveloped” area is the carparking area. Mr Zanotto agreed to the drainage of the carparks and detention.

11 However the council also had a concern about existing down pipes from the roof on the southern façade of the squash courts that discharge straight into the lane. Mr Zanotto said they used to be connected to a soakage pit in the back yard via a pipe, however council reconstruction of the lane in the last 6 months had cut the pipe. He agreed that the pipe had been blocked for sometime before that, and it was reasonable to reconnect the downpipes into the new detention tank.

12 I should note that Mr Zanotto had filed engineers drawings for the detention ”tank”. The council accepted the plans in Exhibit 1, which showed not a “tank”, but a surface detention area in the back yard created by low block walls along the two laneway boundaries.

13 So Condition B39 stays the same, but the reconnection of the downpipes related to Part J Conditions 3 & 4. They required kerb & gutter and a pedestrian footpath along the Griffin lane frontage. Mr Zanotto agreed he would build the detention tank, and, as well as drain the new parking areas to the detention tank, he would connect down pipes on the southern façade of the building into it. The council said that is desirable, but it would increase the capacity needed in the detention area compared to that shown in Exhibit 1.

14 Conditions 3 & 4 are involved because, without the knowledge Mr Zanotto wanted to connect the downpipes into the detention area, the council wanted the broken downpipes connected into the lane via kerb and gutter. Being on the boundary the pipes are prone to damage from vehicles and persons in the laneway. J3 required K & G the length of the Griffin Lane boundary.

15 Associated with the K & G and a fire escape door from the ground floor very close to the Griffin Lane boundary, Condition J4 required a footpath along the same frontage for safety of persons using the door.

16 Mr Zanotto said the plans showed the door exiting onto an internal pathway to the back yard, not onto the street. The council said the plans showed no boundary fence to stop persons going onto the street. It is my opinion, that being the case the footpath would not be required by the proposal, but a condition was needed to require a boundary fence. Condition J4 could be changed to that, and the parties agreed to wording as in Exhibit 7.

17 The council said in regard to connecting the southern downpipes into the detention area, neither the architectural plans in Exhibit A, nor the engineering plans in Exhibit 1 showed that. Also the detention capacity would have to be increased, so it could not be dealt with at the hearing. Also an underground pipe would probably be within the council property and need an easement. A s96 modification application would be needed. I agree with that and Condition J3 should remain.

18 Another associated condition is Part J condition 5. Mr Zanotto contested having to rebuild the existing public footpath on the Benerembah Street frontage and its return along Griffin Lane within the front setback. The parties agreed it was only the return on Griffin Lane a distance of 5 or 6 m that needed rebuilding. Condition J5 is thus amended.

19 Part L condition 1 requires the consolidation of the three lots on which the proposal sits. Mr Zanotto said it should only be required for a new building that crosses lot boundaries under council’s Policy 250. The council said that the car parking and other facilities outside the building are integral parts of the new development use of hostel accommodation and at the moment Lot 13 could be sold separately. The only alternative said the council is to register Reciprocal Rights of Way, or reciprocal easements over the lots for access, parking, drainage and the detention area and that is not part of the proposal. I agree with the council position, and condition L1 must remain.

20 Part I Condition 12 requires a fire escape stair from the 2nd level down into the northern carpark. Mr Zanotto did not want to do this saying he could achieve the BCA requirements by reversing the existing stair adjacent Dormitory 5 in the wide corridor between dormitories. The council said that is not shown on the drawings, and could not be assessed at this Hearing. If it is feasible then a s96 modification application would be needed. I agree with that position, and the condition should remain.

21 Mr Zanotto contested Part I conditions 3 and 4 in regard to contributions for Water Allocation Transfer, and Water Supply and Sewerage Headworks. He said council’s Policies 545, 725 and 750 only require contributions for new connections and he has an existing connection. He also said the hostel would use less water than the squash courts.

22 The respondent’s evidence is that the council policies do not over-ride the Local Government Act 1993 and the Water Management Act 2000. In any case the policies are not in conflict, they require contributions from commercial/industrial development that creates additional allotments or additional tenements. The hostel is classified as commercial.

23 In this case the hostel creates “additional tenements” as defined under the statutes and regulations. It proposes 74 beds. The calculation of equivalent tenements is done according to accepted formulae. The contribution tables in the conditions show that the squash courts calculate at 5.33896ET and the hostel calculates at 11.1ET. The proposal almost doubles the water and sewerage useage compared to the squash court.

24 Whilst there is no provision for a credit, the council HAS allowed a credit for the squash court “existing consumption”. This amounts to a saving for Mr Zanotto of $16,091.60 for Water Supply Headworks and $15,095.90 saving for Sewerage Headworks.

25 It is my opinion that in the circumstances of this case the council has offered a concession or credit for the squash courts, that is acceptable. As a result I do not change conditions I3 or I4.

26 Condition I 15 is amended as agreed.

27 Therefore the Orders of the Court are:

1. The appeal is upheld in part.
2. The conditions of Development Consent 241/2006 in regard to the conversion of disused squash courts to hostel accommodation at Nos. 72-76 Benerembah Street, Griffiths, are determined as shown in Annexure A hereto.
3. The exhibits are returned to the parties except Exhibits A, D, 1, 5 and 7.

___________________

K G Hoffman
Commissioner of the Court
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