Tesrol v Lane Cove Council

APPLICANT Mr C. McEwen SC SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES:

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

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10779 of 2006 Tesrol Greenwich Pty Limited v Lane Cove Council

JUDGMENT 1 COMMISSIONER: This is an appeal against conditions imposed by Lane Cove Council (the council) on DA 225/05 for the subdivision and demolition of some structures at 33 Greenwich Road, Greenwich (the site).

The site 2 The site comprises Lot A in DP 390819. It has an approximate frontage of 102 m to River Road and an approximate frontage of 75 m to Greenwich Road. The southern property boundary is approximately 132 m and the western property boundary is approximately 73 m giving a total site area of 8,505 sq m. The western portion of the site is affected by Right of Carriageway off River Road that ranges in width from 7.4 m at the street boundary to 4.47 m at the southern boundary. 3 The site contains two main buildings on the eastern portion of the site. o a four-storey building of red brick construction with a concrete roof terrace and an adjoining single storey workshop building with a metal roof. The building is used for student accommodation. o a single storey church dwelling constructed of rendered brick with a tile roof. 4 Other features of the site include a concrete car park with off-street car parking for 15 cars, an inground swimming pool, small storage shed, 2 tennis courts, concrete barbecue area and landscaped gardens including a number of trees. The proposal 5 The proposal is to subdivide the site into 7 lots using the Right of Carriageway at the western boundary for access to the new residential lots. Access to the student accommodation is to remain unchanged and separate from the residential lots.

6 In addition to the subdivision, the application seeks consent for the demolition of the existing single storey church dwelling and removal of trees from the site. The existing student accommodation building will be retained as part of new Lot 1 as well as the existing car parking and swimming pool. The tennis courts will be lost and will form part of the new residential lots. 7 The proposed areas of each allotment are: o Lot 1 - 4,290 sq m (existing student accommodation) o Lot 2 - 556 sq m (550 sq m excluding Right of Carriageway) o Lot 3 - 585 sq m (565 sq m excluding Right of Carriageway) o Lot 4 - 622 sq m (580 sq m excluding Right of Carriageway) o Lot 5 - 760 sq m (550 sq m excluding Right of Carriageway) o Lot 6 - 962 sq m (632 sq m excluding Right of Carriageway) and o Lot 7 - 720 sq m (554 sq m excluding Right of Carriageway).

Relevant planning controls 8 The site is zoned Residential 2(a1) under Lane Cove Local Environmental Plan 1987 (LEP 1987). Subdivision and associated demolition are permissible pursuant to cll 12 and 14. Clause 16(2) requires development consent for the removal of any trees taller than 3.6 m. Clause 17C sets out development standards for residential buildings, townhouses and villa homes.

9 Clause 18E requires that the consent authority must take into consideration the likely effect of proposed development on the heritage significance of a heritage item and on its setting when determining an application for consent to carry out development on adjoining land. In this regard 35 Greenwich Road, adjacent to the site, is a listed heritage item; 37 Greenwich Road has a group of trees at the front of the property that are listed as heritage items and 34 Greenwich Road is also a heritage item.

10 Clause 18G requires development applications to take into account the impact that development will have on the heritage significance of any landscape features. The site contains an item of landscape significance.

11 The council raised no heritage issues following the submission of a Heritage Impact Assessment by Graham Brooks and Associates Pty Limited and a Landscape Heritage Impact Assessment by Taylor Brammer Landscape Architects Pty Limited. 12 The proposed development is also subject to the requirements of Lane Cove Residential Zones Development Control Plan (the DCP). Part 7 of the DCP provides for a minimum allotment size of 550 sq m, a minimum 15 m street frontage and vehicular access must achieve a maximum grade of 1 in 5 for vehicle access driveways. There was no dispute that the proposed development satisfies these requirements.

13 The council's Code and Development Checklist for Dwelling Houses, Fences, Private swimming pools, and Outbuildings (the Code) also applies.

The issues 14 The council filed an Amended Statement of Issues containing three issues. These were: 1) the impact on the amenity of the student accommodation; 2) the impact on proposed lot 2; and 3) issues raised by residents. 15 The parties agreed to the appointment of Mr Lindsay Fletcher as the Court appointed town planner. Amenity of the student accommodation/ impact on proposed lot 2 16 Mr Griffiths, for the council submitted that the subdivision of the site was possible although it should be limited to 5 new residential lots rather than the 6 new residential lots proposed in the application. The reduced number of lots was seen to be beneficial in that it provided a greater amenity for the student accommodation, retained additional trees and avoided steeper sections of the site.

17 Mr McEwen SC, for the applicant submitted that the proposed subdivision provided adequate area for the student accommodation and retained the majority of trees on the site and as such 6 new lots were appropriate.

18 Mr Fletcher notes that the proposal before the Court is an amendment to that originally proposed by the applicant. In his opinion, the current proposal addresses the impact on the student accommodation by enlarging the area of Lot 1 and increasing the landscaped area. Taking into consideration the building platform for the dwelling on the adjoining Lot 2, Mr Fletcher concludes that there is sufficient separation between the student accommodation buildings and a future dwelling on Lot 2. While a dwelling on Lot 2 will require some cut in the north-eastern corner and fill in the south-western corner, Mr Fletcher notes that this is not excessive. 19 With the benefit of the site view and an understanding of the relationship between the proposed lots, I accept Mr Fletcher's conclusions that the subdivision pattern provides adequate separation and a suitable level of amenity for the student accommodation. The student accommodation building was inspected on the site view and I am satisfied that the amenities available to the occupants will not be affected to any significant degree through the loss of site area. While the existing tennis courts will be lost to the student accommodation, the swimming pool is to be retained and a large range of recreational facilities are still available on the ground floor level of the building.

20 I also note that the floor space ratio (FSR) for the student accommodation on Lot 1 is 0.74:1. Previous schemes provided an FSR as high as 1.05:1. As a guide it is similar to the FSR requirement of 0.75:1 for the adjoining Residential 2(c) zone where residential flat buildings are permissible.

Issues raised by residents 21 The Court heard from a number of local residents and community representatives on site. While not all were satisfied with the proposal, there was a general understanding, through the evolution of different schemes over time, that the current proposal with its specific design requirements, including building envelopes and setbacks, was a reasonable approach to the development of the site.

22 Concerns were raised over the future design of dwellings on the lots, however these concerns, in my view, are best addressed when individual applications are submitted to the council for consideration.

23 The retention of trees after dwelling construction was also a consistent issue, however there was no reason to suggest that the trees would not be retained. It would be unreasonable to assume future owners would act in an irresponsible manner over existing trees.

24 Considering the evidence given on site and the contents of the submissions provided when the application was advertised, I am satisfied that no local resident issues were raised that would warrant the refusal or amendment of the application.

Conditions 25 There were a number of disputes over the council's 'without prejudice' conditions of approval. These conditions in dispute are: Deferred Commencement Condition A1. - This condition reflected the council's position of 5 new residential lots and a residual lot. This condition should be amended to reflect the approval of 6 new residential and a residual lot for the reasons mentioned earlier in the judgment. Condition 5 relates to the s 94 contributions and should also be amended to reflect the 6 new lots rather than 5 new lots proposed by the council.

Deferred Commencement Condition A2. - This condition requires the submission of a landscape plan. The council and Mr Fletcher sought the plan as a deferred commencement condition. The applicant initially opposed the condition as a deferred commencement condition as it was considered not to be necessary but ultimately accepted the imposition of the deferred commencement condition, although indicating that it was not its principal position. The requirements of the condition were not in dispute but only that it should not be a deferred commencement condition. I accept the applicant's submission as I am not satisfied that there is any special characteristics of the site or the proposed development that would warrant a deferred commencement condition. In my view a landscaping plan can be adequately prepared and considered by the council as an operational condition.

Condition 95(6) requires that the setback area at the first level roof area is not to be trafficable or a roof deck. The applicant opposed this requirement stating that the Code provides adequate controls for this particular design element. I accept this submission as any consideration of first level roof areas is best left to the individual design for each dwelling so any impacts can be properly assessed.

Condition 95(7) imposes a prohibition on attics although they are permissible in some circumstances in the Code. Again, this is best left to the individual design for each dwelling so any impacts can be properly assessed. The prohibition of attics from the condition should be removed.

Condition 95(8) addresses fencing and a requirement that fencing comply with the Code. The Code provides for a 1.8 m high fence but with a 1 m setback. The applicant proposes that fencing to River Road for lots 6 and 7 be 1.8 m high and to the boundary for a part of the frontage and 1.2 m high for the remaining frontage. This is to provide some amenity in the front yards from noise and activity in River Road. While not being consistent with the Code, I am satisfied that it will not overly impact on the streetscape of River Road. This was also a conclusion accepted by Mr Fletcher.

Orders 26 The orders of the Court are: 1. The appeal is upheld. 2. DA D 225/05 for the subdivision of the land into 7 lots, associated demolition works and tree removal at the property known as 33 Greenwich Road , Greenwich is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, 2 and B.

      G T Brown
      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.