Cougar Developments (NSW) Pty Ltd v Hurstville City Council

Land and Environment Court (NSW)|2015-01-21|Before: Mr J, Mr P

Solicitors: Ritchie & Castellan Pty Ltd (Applicant) Hurstville City Council (Respondent) File Number(s): 10471 of 2014

Judgment

Cougar Developments (NSW) Pty Ltd lodged Development Application DA2013/0391 with Hurstville City Council on 27 November 2013 seeking consent to construct a commercial, retail, residential and boarding house development with associated parking at Nos 35-41A Penshurst Street, Penshurst. The council has refused consent and Cougar is appealing that decision.

Background and the proposal

The development application was lodged in 2013 and has been the subject of a series of amendments that attempt to address the concerns of the council. It has also been considered by the council's Design Review Panel on two occasions. The council refused consent and the reasons for refusal reflect the contentions in the case.
As a result of receiving the council's Notice of Determination, the applicant prepared further amended plans and was granted leave by the Court to rely on those plans, Exhibit A.
The proposal involves the construction of a five storey building that comprises four business premises fronting Penshurst Street with foyers, lifts and stairways servicing commercial and residential uses above at the ground level. Parking for 38 cars, 5 motor bikes and 5 bicycles, garbage store, toilet and plant room is provided to the rear, accessed by the right of way off Victoria Avenue.
The first floor comprises additional office space over the northern half of the building with 3 residential units across the southern half. Centrally located light courts provide for light and ventilation to these areas and also act as landscaped areas.
Level 2 comprises nine boarding rooms including a manager's residence and 3 residential units with additional light courts in the centre of the structure. Level 3 would contain a further 9 boarding rooms and three units. 6 boarding rooms and the boarding house communal living room and communal open space and 3 units would be provided on Level 4.
Overall, the development would incorporate 4 ground floor business premises, 1 office area on the first floor, 12 residential units in the form of 'shop-top housing' and a boarding house with 24 rooms, one of which is a manager's residence. Car stackers are proposed to accommodate part of the parking.

The planning controls

The site is zoned B2 Local Centre under Hurstville Local Environmental Plan 2012 (LEP). Boarding houses, commercial premises and shop top housing are permitted with consent in that zone. Clause 2.3 applies to zone objectives and subclauses (2) and (3) are in the following form: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.
The objectives of the B2 zone 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 maintain a commercial and retail focus for larger scale commercial precincts.

Shop top housing is defined in the Dictionary to the LEP as: shop top housing means one or more dwellings located above ground floor retail premises or business premises. Note. Shop top housing is a type of residential accommodation - see the definition of that term in this Dictionary.
Part 4 of the LEP provides Principal Development Standards and clause 4.3 establishes maximum height controls that apply to the site. The maximum height is 15m. The height of the development exceeds that standard and the applicant relies on a written objection prepared pursuant to the provisions of clause 4.6 of the LEP. The lift overruns are the only part of the building that exceeds the standard and the council supports the objection provided the building height does not exceed RL70.45 and has drafted a condition to that effect.
Clause 4.4 provides for a maximum floor space ratio of 2:1 and the development complies with that development standard.
Development Control Plan No. 1 Hurstville LGA Wide (DCP) applies to the site with sections 2.2, 3.1, 3.3, 3.4, 3.5, 3.7, 3.9 and 3.12 particularly relevant to the contentions.
State Environmental Planning Policy No. 55 - Remediation of Land (SEPP55), State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP Basix), State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) and State Environmental Planning Policy - Affordable Rental Housing 2009 (SEPPARH) are also relevant planning instruments.

The issues

The contentions in the case were detailed in the council's Amended Statement of Facts and Contentions, Exhibit 4 however, as the result of the joint conferencing by the experts, a number of contentions were resolved provided further amendments, consistent with the recommendation of the experts, were made to the design of the development. The council suggests these amendments should be addressed through submission of further amended plans and documents and a Deferred Commencement Consent would be appropriate in these circumstances.
The remaining contentions were whether there was a need for an acoustic report, whether the plans would satisfy the requirements of the Building Code of Australia, particularly in relation to egress and accessibility, and whether the property could be serviced by a garbage truck.

The evidence

Expert evidence was heard from Mr N Kennan (town planning) and Mr B Newbold (Urban Design) for the applicant and Mr D Ryan (town planning) and Mr M Zanardo (Urban Design) for the council. All the experts had participated in a joint conference and the preparation of a Joint Report, Exhibit 3.
That report addressed the contentions in the case and made a series of recommendations that, in their opinion, should be reflected in further amended plans. Those recommendations have been included in the deferred commencement provisions of the agreed conditions of consent filed with the Court at the conclusion of the hearing.
The town planning experts agreed that it would be appropriate for a Plan of Management to be prepared that addressed the manner in which the proposed boarding house was to operate. This is a further provision of the proposed deferred commencement requirements.
According to the evidence, the development is compliant with all of the relevant numerical controls contained within the LEP, DCP and SEPPARH other than the development standard for height. The experts agree that the extent of breach of the height control is acceptable in the circumstances of the case and support the written objection to that development standard, Exhibit B.

Conclusion and findings

At the conclusion of the hearing, Mr Rigg indicated to the Court that it would be premature for consent to be granted unless that consent was in the form of a deferred commencement consent so that the applicant was required to prepare plans that reflect the recommendations of the experts. There were no other outstanding contentions. The parties have agreed on the form the deferred commencement conditions should be drafted.
For consent to be granted, I must be satisfied that the development is permitted on the site and that it is appropriate to vary the development standard for height.
The application proposes the construction of a building with a number of different uses, those being retail/offices, carparking, a boarding house and residential accommodation. For the residential accommodation to be permissible, it must be shop top housing, as defined at [13].
Sheahan J in Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 considered a similar issue however this case is distinguished because there are no dwellings on the ground floor level. All residential units are at a level that is higher than the ground floor retail/business premises however the carparking for those dwellings is at ground level. Sheahan J adopted the submissions of the council, in particular at [34] where the issue of whether the whole of the dwellings must be above the retail/business premises with the following paragraph relevant to this case: The Respondent accepts that dwellings do not need to be directly or immediately above ground floor retail premises or business premises in order to be characterised as "shop top housing". If it was intended that "shop top housing" be limited to dwellings that are directly or immediately above ground floor retail premises or business premises it is expected that those works would have been included in the definition of the term 'shop top housing'.
For those reasons, I am satisfied that the residential component of the development is shop top housing and is therefore permissible in the B2 zone. There is no dispute that the business/retail premises, boarding house and carpark are also uses permitted with consent.
With the adoption of the proposed deferred commencement conditions, the lift overruns would be the only building element that would exceed the height control. The experts agree that the design of that element as proposed was inappropriate and have recommended it be reduced and simplified in its form. They agree that because the elements are centrally located they will not be visible from adjacent public places and the variation to the development standard is appropriate.
Clause 4.6 of the LEP is in the following form: Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained. (5) In deciding whether to grant concurrence, the Director-General must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Director-General before granting concurrence……………….
Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 considered a similar clause under the provisions of State Environmental Planning Policy No. 1- Development Standards (SEPP1). This requires consideration as to whether compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.
The objectives of the development standard are: 1. to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, 2. to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development and to public areas and public domain, including parks, streets and lanes, 3. to minimise the adverse impact of development on heritage items, 4. to nominate heights that will provide a transition in built form and land use intensity.
Having regard to the evidence, the objectives of the development standard and the principles in Wehbe I am satisfied that it is appropriate to allow a variation to the development standard for height in the circumstances of this case.
I accept the council's submission that amended plans that reflect the recommendations of the experts should be prepared and that a deferred commencement consent is the appropriate manner in which to determine the application.
The Orders of the Court are: 1. The appeal is upheld. 2. DA2013/0391 for demolition of existing buildings and construction of a commercial, retail, residential and boarding house development with associated parking at Nos 35-41A Penshurst Street, Penshurst is approved as a deferred commencement consent and subject to the conditions in Annexure A. 3. The exhibits, other than exhibits A and 4, are returned.

Sue Morris Commissioner of the Court 10471 of 2014 Morris (C)_Web version (232 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 January 2015

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