City Projects and Developments Pty Ltd v Hurstville City Council

Background and proposal

1. The development application was lodged with council on 13 February 2014. It proposed 17 dwellings over a basement car park for 31 vehicles (original application).
2. The original application was exhibited and a number of objections, including a petition, were received. An appeal against council's deemed refusal of the application was lodged on 11 August 2014. The application was refused by council on 15 October 2014. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) commenced on site on 22 October 2014 and was adjourned to other dates. Council had no delegation to enter into agreement and the conciliation conference was subsequently terminated.
3. The applicant was granted leave to rely on amended plans on 6 March 2015 (amended application), which were re-exhibited and further objections received.
4. The amended application proposes 14 dwellings (6x2 bedroom, 5x3 bedroom, 3x4 bedroom) in three buildings over a basement carpark for 32 cars. The amendments include changes to the building and basement to retain existing trees on the site, including Tree 44 (English Oak), increased landscaping along the western boundary and the Rostov Street and Forest Road frontages and changes to the elevations.
5. The hearing was held in Court and the parties agreed that the site view and evidence at the conciliation conference would be admissible as evidence in the hearing. A record of the evidence on site was tendered into evidence (exhibit 2).

Contentions

1. An Amended Statement of Facts and Contention was filed on 2 April 2014 (Exhibit 1) in response to the amended application. The contentions in relation to the original application were resolved by the amended application but the Amended Statement of Facts and Contentions raised the following additional contentions: Contention 1 - Streetscape The streetscape presentation to Forest Road and Rostrov Street is not acceptable and inconsistent with the objects of clause 4.3.2.9 in that the fences and walls proposed have a detrimental or overbearing impact upon the streetscape or adjacent buildings Contention 2 - Driveway The presentation of the driveway results in large exposed voids to Rostrov Street and also to the private open space of dwelling 1. This is not satisfactory and inconsistent with clause 4.3.2.6 Car parking and Access that requires the basement car parking not result in large exposed voids. The void will also result in unacceptable acoustic impacts on dwelling 1 from the noise of car entering and leaving the site and the noise from the roller shutter. Contention 3 - Tree retention The amended proposal contains some insufficient/inaccurate information relating to tree retention on the subject site. Contention 4 - Basement carpark The amended proposal contains insufficient information in relation to the basement car park Contention 5 - Matters raised by objectors.
2. The particulars to Contentions 1, 2 and 3 state that the contentions can be dealt with by conditions of consent and further information to meet Contention 4 has been provided to the satisfaction of council.

Planning controls

1. The site is zoned R2 Low Density Residential under Hurstville Local Environmental Plan 2012 (LEP). Multi dwelling housing is permissible with consent in the R2 zone. The objectives of the zone which, under cl 2.3(2), the consent authority must have regard to are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage development of sites for a range of housing types, where such development does not compromise the amenity of the surrounding area, or the natural or cultural heritage of the area. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage greater visual amenity through maintaining and enhancing landscaping as a major element in the residential environment. • To provide for a range of home business activities where such activities are not likely to adversely affect the surrounding residential amenity.
2. The LEP contains development standards for Height of buildings (cl 4.3) and Floor Space Ratio (FSR). The proposal complies with these standards. In particular, cl 4.4 permits a maximum FSR of 0.6:1and the FSR proposed is 0.51:1, which is below the maximum.
3. The former St Josephs Convent and Penshurst Girls School are listed as heritage items under the LEP. Clause 5.10(5) provides that a heritage management document may be required that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item in the vicinity. A Statement of Heritage Impact was submitted with the original application and the impact on the heritage significance of items in the vicinity was not raised as a contention in the proceedings.
4. Hurstville Development Control Plan 1 (DCP) applies to the site. The parties agree that Amendment No 3 to the DCP is a relevant consideration under s79C(1)(a)(iii) as it was in force when the application was lodged. Amendment No 4 commenced after the original application was lodged and it includes a savings and transitional provision (s 1.6) which provides: The amendments made to this Plan by Amendment No. 4, only apply to development applications lodged on or after 2 April 2014.
5. The key difference between Amendment 3 and Amendment 4, which is relevant to the proceedings, is the inclusion of a residential density control in s 4.3.2.1(i)(a) which provides: For land zoned R2 Low Density Residential under Hurstville LEP 2012, 315 square metres of site area is required per dwelling.
6. The objectors consider that the application should be refused as it does not meet this requirement and therefore is not in accordance with the EPA Act. However, the parties agree that Amendment No. 4 should be given no weight in accordance with the savings and transitional provision in s 1.6 and consequently the requirement of s 4.3.2.1(i)(a) do not apply to the application.
7. I accept the parties' position. Even, if I were to give weight to Amendment 4 of the DCP under s 79C(1(e) or apply the principles in relation to savings provisions in a draft LEP (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142) for the reasons, which I discuss below, the proposal satisfies the planning objective for the residential control set out in s 4.3.2.1 which provides: Site planning aims to maximize the attribute of a site while establishing a good relationship between buildings on a site and with neighbouring property and buildings..
8. The DCP provides Specific Controls for Residential Development - Multi Dwelling & Residential Flat Development (s 4.3), which include Site planning (s 4.3.2.1), Streetscape (s 4.3.2.2), Building Form and Style (s 4.3.2.3), Building height and form (s 4.3.2.4), Building setbacks (s 4.3.2.5), Car parking and access (s 4.3.2.6), Privacy (s 4.3.2.7), Solar design and energy efficiency (s 4.3.2.8), Fences at the front boundary (s 4.3.2.9) and Landscape (s 4.3.2.10). The parties agree that the amended application complies with these requirements.

Evidence

1. The Court visited the site at the s34 conciliation conference and heard from objectors both on site and at the hearing in court. The key concerns of the objectors were that the Act requires 315sqm per dwelling and therefore a maximum of 10 dwelling should only be permitted on the site. They considered the proposal is an overdevelopment and inconsistent with the single dwelling character of the area, which would have negative impacts including privacy, removal of trees, increase in people and noise. In particular, the area is already impacted by traffic and the demand for on street parking from the nearby schools, which will be exacerbated by the proposal.
2. A Joint Report were tendered from Dr D Wotherspoon, for the applicant and Mr P Castor, for the council on tree protection issues. The experts were not required for cross examination. They agreed that the landscape plan should be amended to correct omissions and that a detail of tree protection works is to be provided for each stage of the development. They were satisfied that these matters could be dealt with by conditions. The contention in relation to tree retention in response to the original application had been resolved through the retention of Tree 44, and changes to the basement and excavation to ensure the retention of other trees on the site and the adjoining property as well as through replacement planting.
3. Mr J Mead, for the applicant, and Mr P Smith, for the council, prepared a joint report on the planning and urban design issues. They were not required for cross examination, but Mr Mead, with the agreement of the council, provided oral evidence in response to the evidence in court of the objector.
4. The experts agreed that subject to minor changes, the issues in relation to the driveway and streetscape presentation of the building were resolved. The changes to Forest Road include lowering the retaining walls and increased set back of the fence and gate of the common area. The changes to Rostrov Street include the provision of a masonry wall to the courtyard of Dwelling 1 to provide acoustic separation to the driveway entry and reducing the height of the opening to the driveway. The experts agree that these changes could be dealt with by conditions.

Findings

1. I accept the experts' evidence that the matters raised in the Contentions have been adequately addressed and resolved through the amendments to the application and the proposed conditions.
2. The additional matters raised by the objectors are not matters that were raised or pressed by council. The objectors' concerns principally relate to the residential density control in s 4.3.2.1(i)(a) of Amendment 4 to the DCP. As discussed above, due to its savings and transitional provision (s 1.6), Amendment 4 is not relevant to the assessment of the application. The density of development on the site is established by other controls, including the FSR control in the LEP, and the proposal is below the maximum permissible FSR. The controls in Amendment 3 of the DCP, which is the relevant version of the DCP for the purpose of s 79C(1)(a)(iii), such as landscape area also determine the number of units which can reasonably be accommodated on the site. The proposal provides greater landscape area (28% of the site) than the requirement under s 4.3.2.10 of the DCP for 20% of the site area. The parties agree that the proposal satisfies the requirements of the LEP and the relevant DCP and is a form of development that is envisaged by the planning controls. The changes to the proposal to reduce the number of dwellings, break up the building, retain Tree 44 to provide a central open space, increase landscaping and redesign of the street elevations have reduced the impacts of the development and result in a proposal that is consistent with the character for the area that is sought by the planning controls.
3. For the above reasons, I am satisfied that the Contentions are addressed and that the development consent may be granted.

Orders 1. The appeal is upheld. 2. The development application (DA2014/0104) for the demolition of existing buildings and construction of a multi dwelling housing development with basement carparking at 1 Rostrov Street and 528 Forest Road, Penshurst, is approved subject to the conditions in Annexure "A". 3. The exhibits, except Exhibits 1, A, B and C, are returned. Annelise Tuor Commissioner of the Court 10601 of 2014 Tuor (C) (174 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2015