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[2007] NSWLEC 335
Land and Environment Court (NSW)
2006-11-15
Mr P, Mr J, Preston CJ
Original judgment source is linked above.
The applicant has mis-characterised the type of units that the Council considers to be "medium" in size as being "small" in size. This is not correct, because clause 7.1 of the Plan needs to be taken into account in the first instance to obtain the correct characterisation, and then the figures from Amendment No 4 of the Section 94 Contributions Plan, which was current at the time that the development application was lodged need to be applied. 50 I accept the Council's submission. Section 94B(1) of the EPA Act provides:
A consent authority may impose a condition under s94 or 94AA only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division) 51 The Spreadsheet does not form part of the s 94 Plan. Clause 7.0 - Determining a Contribution Rate provides:
For ease of application, a contribution rate per dwelling shall be specified. A fair and reasonable rate has been derived, having regard to:- i) average occupancy rates by dwelling size: and ii) the cost of proposed facilities. Each of these is described below. 52 Clause 7.1 - Occupancy Rates of the s 94 Plan provides the dwelling size referred to in cl 7 and is therefore to be used in the calculation of contributions. I accept council's submission that the s 94 contribution has been calculated in accordance with the s 94 Plan and condition 27 is therefore retained without amendment. 53 In addition to the conditions referred to earlier relating to the planter box (condition 2C) and the car parking spaces (condition 105) I have included additional conditions agreed to during the hearing (Exhibit 8) which refer to the enclosure of the car park access ramp (condition 2A) and fencing along the south boundary (condition 2B). The landscape plan (Exhibit G) has been included in the approved drawings in condition 2 as this includes the street tree panting recommended by the Panel and the landscape concept for the site. Condition 30 requires an amended landscape plan that is consistent with the approved architectural plans. Orders 54 For the above reasons the Orders of the Court are:
Annelise Tuor
Commissioner of the Court
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.
Marinkovic
Rockdale Council No 2
CITATION : Marinkovic v Rockdale Council No 2 [2007] NSWLEC 335
Marinkovic v Rockdale Council [2006] NSWLEC 601; Marinkovic v Rockdale City Council No 2 [2006] NSWLEC 432; CASES CITED: Marinkovic v Rockdale Council [2007] NSWLEC 71 ; Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; Stromness v Woollahra Council [2006] NSWLEC 587; Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Planning Framework 20 The site is zoned 2(c) Residential under Rockdale Local Environmental Plan 2000 (LEP 2000). The proposed development is not permissible within the zone. Residential flat buildings are permissible within the zone but not mixed use development. However, the site benefits from existing use rights under ss107 and 108 of the Act and cls 40 - 43 of the Environmental Planning and Assessment Regulations (the Regulations). 21 The application was lodged prior to the amendments to the Regulations relating to existing use rights and is therefore not effected by these changes. 22 Section 108 (3) of the Act states that the provisions of any environmental planning instrument cannot derogate from the existing use rights. Compliance with the controls in LEP 2000 is therefore not required and the application should be assessed under s79C of the Act. 23 The parties agreed that it is appropriate to consider the extent to which the proposed development would fit into the context of the existing buildings and the likely future character. The planning controls are indicative of the type of development likely to occur around the site and should be given weight in assessing the development within this context, consistent with the principles established for existing use rights by Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 and by Pain J in Stromness v Woollahra Council [2006] NSWLEC 587. 24 Rockdale Development Control Plan No 35 - Residential Flat Building (DCP 35), Rockdale Development Control Plan 72 - Mixed Use Development (DCP 72), Interim Mixed Use Development Policy (the Policy), Rockdale Council Parking and Development Code (the Code) and State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings (SEPP 65) provide guidance as to the likely future development of sites in the area. 25 SEPP 65 establishes ten design principles for residential flat development. SEPP 65 requires a consideration of the Residential Flat Design Code (RFDC). Part 3 of SEPP 65 provides for the establishment of a Design Review Panel (the Panel) to provide advice on the design quality of residential flat buildings. The Panel considered the application on a number of occasions. The panel generally supported the application but recommended changes, including a transition of three storeys to the west up to five storeys on the corner of President Avenue and The Grand Parade. The issues 26 The draft Fourth Amended Statement of Issues before the Court at the commencement of the hearing contained 7 issues and a number of sub issues. A number of issues were resolved by amendments to the plans or conditions. No further Statement of Issues was filed with the final amended plans (Exhibit G). The key issues in the hearing were whether:
Impact on adjoining properties 35 In relation to overshadowing, the amended plans are consistent with the changes recommended by the experts and the preliminary findings of the Court. The deletion of the units has reduced the impact of overshadowing on 141 The Grand Parade. Solar access to the living areas of the self contained apartments will be maintained, however, the walkway and kitchens will be overshadowed. The kitchens are small and do not provide seating areas, the walkway provides access to the units and the kitchens but is not a living area. Any development of the site above that which currently exists would impact on the solar access currently enjoyed by these areas. The experts considered the overshadowing to be reasonable and I accept this opinion. 36 In relation to view loss, the amended plans are consistent with the changes recommended by the experts and the preliminary findings of the Court. The views to the Bay from the front balconies of 223 President Avenue are generally maintained. Although the planter box along the north west corner of the terrace off Unit 11 will restrict views and is not necessary for privacy. I have included a condition to delete this part of the planter box. 37 The views of the Bay from the balconies of 223 President Avenue facing west will be lost. However, these balconies face a side boundary and look across the site. It is not unreasonable that development of the site would impact upon them. In considering the principles for view sharing of Roseth C in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, I accept that reasonable view sharing has been achieved by the amended proposal. 38 In relation to privacy, the proposal is setback sufficient distance from it rear boundary to not impact on privacy. In addition privacy screens are provided to the balconies off units 1 and 6 and a planter box to the terrace off unit 11. The experts did not raise privacy to 141 The Grand Parade as an issue.