MODIFICATION OF DEVELOPMENT CONSENT: appeal to delete a second level of basement car parking, including 83 car parking spaces
substantially the same development
adequacy of car parking provisions
Source
Original judgment source is linked above.
Catchwords
MODIFICATION OF DEVELOPMENT CONSENT: appeal to delete a second level of basement car parking, including 83 car parking spacessubstantially the same developmentadequacy of car parking provisions
Judgment (10 paragraphs)
[1]
Background
COMMISSIONER: Michael Raad Architects Pty Ltd (the Applicant) has appealed a decision by the Strathfield Independent Hearing and Assessment Panel on behalf of Strathfield Municipal Council (the Respondent) to refuse its application to modify its development consent DA405/176, through deletion of the second level of basement car parking below Building 6 within the Centenary Park development at 81-86 Courallie Avenue, Homebush West (the Subject Site).
The modification application was lodged pursuant to s96(2), and the appeal is made pursuant to section 97AA, of the Environmental Planning and Assessment Act (EP&A Act).
Notwithstanding its current identification as provided at [1], the Subject Site was previously described as 79 Courallie Avenue, Homebush West and 78 Marlborough Road Homebush West.
Strathfield Municipal Council approved Development Application 405/176 for stages 1D and 1E of Centenary Park on 12 June 2007. That approval included consent for the construction of Building 6 as a three storey apartment building with a single level of basement car parking.
Eight modification applications have subsequently been lodged in relation to DA405/176, and three of these have been approved.
One of the modification applications, DA405/176/3, which concerned Stage ID (Blocks 2-6) of the development, was approved by Council in an amended form under which, and contrary to the modification application, reduced the number of apartments in Building 6. However, that approval also granted consent for the provision of a second level of basement car parking below Building 6.
On 21 June 2017, the Applicant lodged its ninth modification application (DA405/176/9) which sought approval to:
1. reconfigure 29 three-bedroom apartments within Building; 6 and
2. remove from the consent a requirement to construct the second level of basement car parking located immediately below Building 6.
On 7 September 2017, modification application DA405/176/9 was refused by the Strathfield Independent Hearing and Assessment Panel, on behalf of the Respondent, and it is this modification application that is the subject of this appeal.
The Applicant was granted leave to amend the modification application by withdrawing that part of its application which sought approval for the reconfiguration of the 29 three-bedroom apartments, retaining only that element of the application concerning the removal of the second basement level car parking on 17 November 2017.
As part of the hearing in this appeal, an inspection of the Subject Site was undertaken, during which submissions were received from:
1. Ms Anne Sullivan, a resident of the Centenary Park development, who expressed concern in relation to the adequacy of resident parking and visitor parking within the Centenary Park development. Ms Sullivan said that the provision of clearly marked visitor parking was a particular concern of the current residents of Centenary Park and that a traffic management plan that made adequate provision for visitor parking was required for the development.
2. Mr Donald Tang, on behalf of owners and future residents of the Centenary Park development, who said that the second level of basement car parking beneath Building 6 was not required to meet the needs of owners and residents within that building.
During the site inspection the Parties also drew the court's attention to the fact that work had commenced on construction of the basement level of Building 6 and that these works had only provided for a single basement underneath that building.
[2]
Environmental Planning and Assessment Act 1979
The Environmental Planning and Assessment Act 1979 (EP&A Act) provides under s96(2), Other Modifications, that:
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C(1) as are of relevance to the development the subject of the application.
(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
Section 79C(1) of the EP&A Act requires that in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.".
[3]
State Environmental Planning Policy No 65 Design Quality of Residential Flat Development
State Environmental Planning Policy No 65 Design Quality of Residential Flat Development (SEPP65) aims to improve the design quality of residential flat development in New South Wales, and recognises that the design quality of residential flat development is of significance for environmental planning for the State due to the economic, environmental, cultural and social benefits of high quality design.
SEPP65 applies to residential flat buildings, shop top housing and mixed use developments with a residential component, if the building has 3 or more storeys and contains 4 or more dwellings.
SEPP65 has a close and integrated relationship with the Apartment Design Guide (ADG) published in 2015 by the NSW Department of Planning and Environment, which provides consistent planning and design standards for residential apartments in New South Wales.
[4]
Strathfield Local Environment Plan 2012
Development on the Subject Site is subject to the Strathfield Local Environment Plan 2012 (SLEP 2012), under which it is zoned R3 Medium Density Residential.
[5]
Development Control Plans
The Subject Site is subject to the provisions of:
1. Strathfield Consolidated Development Control Plan 2005 (SCDCP 2005), and
2. Development Control Plan No25 - 79 Courallie Avenue Homebush West (DCP25)
[6]
Does the application meet the preconditions for consideration under s96(2) of the EP&A Act?
The EPA Act s96(2) requires that the consent authority, or the Court on appeal, must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).
Section 96(2) also requires that the application to modify the consent has been appropriately notified and that the consent authority has considered any submissions made concerning the proposed modification.
The Applicant said that the original consent for construction of stages 1D and 1E of the Centenary Park development had approved a three storey apartment complex with a single storey of basement car parking, and that the current modification application, in seeking to remove the second basement car parking approved under DA405/176/3, was consistent with the initial approval granted by Strathfield Municipal Council. The Applicant submitted that, as a consequence, the modification application in this appeal was for a development that is substantially the same development as that for which consent was originally granted, thus satisfying the requirements of s96(2)(a).
During the hearing, evidence was tended in the form of a joint report of the planning experts, Mr Gary Chapman for the Applicant and Mr Brett Daintry for the Respondent.
The planning experts agreed that the modification application which is the subject of this appeal relates to a development that is substantially the same development as that which consent was granted in the original development consent.
Having considered the submission of the Applicant and the evidence of the planning experts I am satisfied that the current modification application satisfies the requirements of s96(2)(a) of the EP&A Act.
During the hearing the Respondent also confirmed that the modification application had been notified in line with the requirements of SCDCP 2005, and evidence was tended confirming the notification by Council of the application.
The Respondent advised that, in response to this notification, Council had received 25 submissions and two petitions containing 19 signatures. These submissions were tendered as evidence during the hearing.
Many of those submissions had expressed objections in relation to the (initially proposed) reconfiguration of certain three-bedroom units in Building 6. As noted a [9], leave was granted by the court to amend the modification application so as to remove that element of the proposed modification from the application. Consequently, these parts of the submissions were no longer of direct relevance in these proceedings
The objectors also expressed concerns as to the adequacy of the car parking provisions within the Centenary Park development and, in particular, the provision of visitor car parking and parking capacity in Building 6. This matter was the focus of submissions by the parties and expert evidence during the hearing.
[7]
Contentions
The Respondent noted that a previous contention in relation to the provision of owner's consent for the modification application had been addressed to its satisfaction by the Applicant.
As a consequence, the principal question for resolution in this appeal is whether the removal of the second basement to car parking beneath Building 6 should be approved in light of the Centenary Park development's requirements for visitor, accessible and other parking.
At the commencement of the hearing the Parties advised that the planning experts, Mr Chapman and Mr Daintry, along with the traffic experts, Mr Michael Logan, for the Applicant, and Mr Ken Hollyoak, on behalf of the Respondent, had reached agreement in relation to:
1. the parking, including the visitor parking, required within Building 6;
2. the allocation of parking across the Centenary Park development so as to meet the requirements for visitor parking, accessible parking, commercial parking, child care centre parking, a car wash bay and resident parking within the Centenary Park development;
3. the basis for a Parking Management Plan for the Centenary Park development and for which, under a proposed condition of consent, approval would be sought from Strathfield Municipal Council prior to its implementation by the Applicant.
The Parties noted that these agreements had been recorded within a supplementary joint report of the traffic experts, which had stated that:
1. the Stage 1D development at Centenary Park provides a total of 618 spaces, and this would include between 196 and 214 'spare' parking spaces;
2. the first level basement under Building 6 would contain 67 parking spaces, which satisfied the parking requirements for that building as agreed by the planning experts;
3. based on the availability of 67 spaces in the first level basement, the second level basement under Building 6 was not required;
4. the entire Centenary Park development, which included a total of 1052 units, required 211 visitor parking spaces, of which 120 would be provided as on-street parking and a further 91 spaces would be provided within three separate basement car parks in the development;
5. of the 61 visitor car spaces required in Stage 1D, 52 of these would be provided in the basement under Building 5 and the remaining 9 spaces would be provided as designated on-street visitor parking;
6. the 46 accessible units within the development would each be provided with accessible parking spaces in accordance with the applicable standard(AS/NZS2890.6) and as agreed by the planning experts;
7. a single car wash bay would be provided within the basement level of Building 5, and this would satisfy the requirements of the original development application consent and the requirements of the development control plans applicable to the Subject Site;
8. the provision and location of bicycle parking facilities in each building in Stage 1D was acceptable, although the detailed design of these spaces may result in the loss of two car parking spaces. The experts agreed that the loss of these two spaces would have no significant impact on the provision of parking within the Centenary Park development;
9. the storage requirements of the units in Stage 1D of the Centenary Park development was not a traffic issue but could be subject to a condition of consent;
10. the parking provided within the development to service the approved childcare centre and commercial shops was acceptable.
The Parties also confirmed that they had reached agreement on conditions of consent which reflected the outcomes agreed between the traffic experts and the planning experts, and which, if approved, would resolve all contentions between them in this appeal. They noted that this would include those contentions relating to the acceptability of the modifications in terms of the objectives and provisions of SLEP 2012, SEPP 65, the ADG, SCDCP 2005 DCP25, and various clauses therein.
The Respondent said that these conditions would provide consent for the removal of the second basement and car parking within Building 6 of the Centenary Park development.
The Respondent noted that the agreements of the traffic experts and the planning experts had fully addressed the submissions made by objectors, both those made during the on-site inspection at the commencement of this hearing as well as submissions received in response to the notification and exhibition of the modification application by Council. The Respondent said that, as a consequence of this, the planning experts had concluded that approval of the modification application, with conditions, was in the public interest.
[8]
Conclusion
Based on the above, I am satisfied that:
1. the development to which the application relates is substantially the same development as the development for which consent was originally granted, and before that consent as originally granted was modified;
2. the modification application was notified in accordance with the relevant regulations and provisions applicable to it, including those provided within SCDCP 2005;
3. the submissions made by objectors concerning the proposed modification would be resolved through adoption of the agreed recommendations of the traffic and planning experts, and their incorporation as conditions of consent for the modified development;
4. the requirements of s79(1) of the EP&A Act have been addressed including:
1. the provisions of SLEP 2012;
2. the provisions of SCDCP 23005 and DCP25;
3. the likely impacts of the modification application, should it be approved, and
4. objector submissions made in respect of the notification of the application and at the hearing.
I conclude that approval of the modification application DA405/176/9, as amended, and subject to conditions of consent to reflect the agreed evidence and recommendations of the planning and traffic experts, is in the public interest.
[9]
Orders
The Orders of the Court are:
1. the Applicant is granted leave to rely on the amended plans and reports listed at Condition 1 of Annexure 'A' to this judgment;
2. the appeal is upheld;
3. the Applicant's modification application (DA405/176/9), as amended, which seeks to modify Development Consent 405/176 through deletion of the second level of basement car parking underneath Building 6 at 81-86 Courallie Avenue, Homebush West, is approved, subject to the modifications of conditions of consent annexed hereto as Annexure 'A';
4. as a consequence of the order at [38(3)], Development Consent 405/176 is now subject to the consolidated, modified conditions of consent as set out in Annexure 'B';
5. the exhibits are returned.
………………………….
Michael Chilcott
Commissioner of the Court
276724.17 Annexure A (147 KB, pdf)
276724.17 Annexure B (C) (576 KB, pdf)
[10]
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Decision last updated: 23 January 2018