Land and Environment Court New South Wales Medium Neutral Citation: Mina v City of Parramatta Council [2021] NSWLEC 1296 Hearing dates: 18 and 19 March 2021 Date of orders: 27 May 2021 Decision date: 27 May 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: In the Development Application Appeal proceedings 2020/123194 the Court orders that: see judgment at [80]. In the Building Information Certificate Appeal proceedings 2020/239798 the Court orders that: see judgment at [81]. Catchwords: DEVELOPMENT APPEAL – use of as built enclosed balconies as winter gardens – bulk and scale – heritage conservation area – Floor Space Ratio – cl 4.6 written request for development application for use – orders BUILDING INFORMATION CERTIFICATE APPEAL – notional assessment – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.4, 1.5, 4.15, 6.25, 8.7, 8.25 Parramatta Local Environmental Plan 2011, cll 4.4, 4.6 and 5.10 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Cases Cited: Barton Securities Limited v Warringah Council & Others 170 LGERA 223; [2009] NSWLEC 179 Chapman v Warringah Council [2010] NSWLEC 1339 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 Ricola Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1047 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 Texts Cited: Parramatta Development Control Plan 2011 National Construction Code - Building Code of Australia Australian Design Guide, NSW Department of Planning and Environment Category: Principal judgment Parties: Proceedings 2020/123194 Maher Mina (Applicant) City of Parramatta Council (Respondent) Proceedings 2020/239798 Maher Mina (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: J Reid (Applicant) C Gough (Solicitor) (Respondent) Solicitors: Thomson Geer Lawyers (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 2020/123194 2020/239798 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal of a development application No. DA/578/2019 which seeks consent for development described as "Use of as built enclosed balconies as winter gardens" (the Proposed Development) at 58 O'Connell Street Parramatta, SP 85171 (the Site). I will refer to this appeal as the Development Appeal. 2. The Development Appeal was heard together with the Class 1 - Miscellaneous Appeal pursuant to s 8.25 of the EPA Act being an Appeal against deemed refusal to issue a building information certificate application No. BC/105/2020 seeking approval for the unauthorised works for balcony enclosing works at the Site which I will refer to in this judgment as the BIC Appeal. The evidence in the proceedings is evidence for both the Development Appeal and the BIC Appeal. 3. The building the subject of the appeals is located in the R2 Low Density Residential zone and is a three storey residential flat building containing 10 apartments and the appeal relates to six (6) enclosed balconies affecting 4 apartments all located at the rear portion of the building on the first and second floors as follows: 1. 2 x balconies within unit 5 2. 1 x balcony within unit 6 3. 2 x balconies within unit 9 and 4. 1x balcony within unit 10. 1. The facts are as set out in the Statement of Facts and Contentions filed 29 May 2020 (Exhibit 3) for the Proposed Development (DA SOFAC), and 23 September 2020 (Exhibit 2) for the BIC Appeal (BIC SOFAC). The Respondent presses a number of contentions in relation to both proceedings using different numbering in the DA SOFAC and the BIC SOFAC but which are nonetheless common contentions in substance as follows: 1. Increase in Gross Floor Area (GFA) and the breach in the Floor Space Ratio (FSR) development standard; 2. Heritage Impacts to the North Parramatta Conservation Area; 3. Bulk, scale and streetscape; 4. Private Open Space (POS); and 5. Public Interest 1. The parties rely on the Joint Expert Planning Report (JEPR) filed 15 March 2021 prepared by Adam Byrnes, Consultant Town Planner for the Applicant and Steven Chong, Council's Team Leader Development Assessment (Exhibit 4) and both Mr Byrnes and Mr Chong gave oral evidence under cross examination. 2. It is relevant to note that the residential flat building on the Site was approved on 30 November 1967 (Exhibit F) and it is agreed that the 1967 development approval confirms that the Site benefits from existing use rights of a residential flat building which is an otherwise prohibited development in zone R2 Low Density Residential. Further, the balconies have been enclosed for a number of years, having been enclosed in around 2014 (Affidavit of Joanna Ling sworn 17 August 2020 par 7) and the ownership structure of the residential flat building was converted to strata title when Strata Plan No. SP85171 was registered on 23 May 2016. What tasks are required from the Court for the DA Appeal and the BIC Appeal? 1. In relation to the DA Appeal the task for the Court as consent authority is to consider the merits of the application for consent to use the as built enclosed balconies as winter gardens. The Applicant submits that as the development application seeks consent for use only, that is, consent is not being sought for any construction or building work, there is no trigger for a written request to justify the contravention of the FSR development standard pursuant to cl 4.6 of the Parramatta Local Environmental Plan 2011 (PLEP) (cl 4.6 Written Request). I will address the role or purpose of the cl 4.6 Written Request provided by the Applicant before considering the contentions pressed by the Respondent as listed above. 2. On hearing the BIC Appeal, the Court may do any one or more of the following as listed in s 8.25(3) of the EPA Act: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. 1. The task for the Court in the BIC Appeal is to undertake a notional merit assessment of the impact(s) of the enclosure of the balconies pursuant to s 4.15 of the EPA Act when exercising its wide discretion pursuant to s 8.25(3) of the EPA Act. This is an agreed approach between the parties and they rely on the decisions in Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 (Ireland), Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276. The Applicant further relies on the decision of Tuor C in Chapman v Warringah Council [2010] NSWLEC 1339 to support the submission that as the works which relate to the filling in of balconies to lots 5, 6, 9 and 10 are more akin to a modification of a consent rather than a development application, the court would undertake a notional "modification application" assessment. What follows from this submission is that "because the notional assessment is in the nature of a modification application, the Court would be satisfied that a clause 4.6 request is not required on the notional modification application because the development standard does not apply to modifications, rather it applies only to development applications." (written submissions par 26). The Applicant submits at par 30 of written submissions that Mr Byrnes has prepared the cl 4.6 Written Request to assist the Court in considering a notional modification application for the purpose of the BIC Appeal and at par 43 that it is appropriate for the Court to consider the merit assessment of the development standard in the cl 4.6 Written Request when considering the notional modification application. As per above, I will address the role or purpose of any cl 4.6 Written Request before considering the contentions pressed by the Respondent. 2. The EPA Act provides at s 6.25(1) that a building information certificate is to be issued by a council only if it appears that— (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993— (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 1. The parties rely on the evidence of Mr Byrnes and Mr Chong as set out in the JEPR at pars 1.5b and 1.5c and in relation to the Building Code of Australia they state as follows "b. In relation to the Building Certificate all practical building matters are resolved as: i. Owners consent is confirmed ii. Ceiling height to balconies is resolved iii. The wall and floor linings to the balconies is resolved iv. Floor spandrel separation/protection is acceptable v. Fire protection options are acceptable vi. That a condition of consent would require the completion of an inspection, report and works to be carried out to resolve any roof leaks or waterproofing. c. All other matters raised in the Building Certificate SOFC are generally of a planning nature and are repeated in the DA SOFC. Accordingly, these matters are dealt with in this Joint Report as part of the discussion of the DA SOFC." 1. History of the BIC Appeal is set out in the Affidavit of Ms Ling tabs 15 and 16 Exhibit A. 2. The Respondent tendered Short Minutes of Order with Annexure A (Exhibit 6) which are agreed, subject to draft/proposed consent condition No 4 in relation to the Development Appeal which is not agreed by the Applicant, to be appropriate orders should the Court be minded to grant consent to the Proposed Development and to uphold the BIC Appeal. I note and am satisfied with the proposed orders agreed by the parties in relation to the BIC Appeal and I will address the proposed/draft consent condition No. 4 below at [77]-[79]. 3. I will now address the preliminary question as to the role and purpose of the cl 4.6 Written Request in the context of the increase to the gross floor area (GFA) by the enclosure of the balconies in the Development Appeal and the BIC appeal. I will then undertake the merit assessment for the Development Appeal seeking consent for the use of the enclosed balconies as wintergardens and undertake a notional assessment of the BIC Appeal to make the relevant findings before issuing the appropriate orders. Floor Space Ratio development standard – is the Applicant required to provide a written request under cl 4.6 as a jurisdictional prerequisite? 1. The DA SOFAC and the BIC SOFAC contend that although the Floor Space Ratio (FSR) map shows that the Site is subject to the development standard in cl 4.4(2) of the PLEP of a maximum FSR of 0.5:1 the existing residential flat building was approved in 1967 to have an FSR of 0.74:1 and that with the enclosure of the balconies the FSR is currently 0.77:1 being an additional 22m2. The Experts agree that the enclosed balconies now comprise Gross Floor Area (JEPR at par 1.5a) and there is no apparent dispute regarding these numbers. 2. There is also no dispute that the FSR control in cl 4.4 of the PLEP is a development standard as defined in s 1.4 of the EPA Act which is set out in full below at [28]. 3. The Applicant submits that a written request pursuant to cl 4.6 of the PLEP to justify the contravention of the FSR development standard is not required for a development application seeking consent for 'use' and is not strictly or legally required as such for a notional assessment of the BIC Appeal. The Applicant has provided a cl 4.6 Written Request which is annexed to the JEPR in the event that the Court does not accept its submissions and finds that a cl 4.6 Written Request is required either as a jurisdictional prerequisite for the Development Appeal and/or as part of the notional assessment of the BIC Appeal. 4. The Applicant made oral and written submissions regarding the use of the word 'building' in the FSR Development Standard which reads as follows: Cl 4.4(2) PLEP The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 1. The Applicant submits that the FSR Development Standard comes into effect when an application for 'building' is considered and that the DA Appeal before the Court seeks consent only for use and does not seek any consent for any works. In written submissions at par 23 the Applicant relies on the decision of Duggan J in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 at [40] for the submission that the context of the term 'building' in the FSR Development Standard indicated a new building that affects the breach of the standard and that the Court is not tasked with the assessment of a new building. 2. I agree with the Applicant's conclusion that the FSR Development Standard is not triggered by the DA Appeal and that cl 4.6 of the PLEP is not enlivened but for different reasons. I do not think that the argument in relation to the use of the "building" as a noun in the FSR Development Standard is the basis for this conclusion. The reason that cl 4.6 is not enlivened is that the consent sought is for 'use' which is a form of development but it is not a development standard and therefore the DA Appeal itself does not breach a development standard requiring any justification pursuant to cl 4.6 of the PLEP. 3. It is agreed that for the BIC Appeal, consideration of the cl 4.6 Written Request is required as part of the notional assessment of the merits of the works undertaken to enclose the balconies and that the consideration of the cl 4.6 Written Request is to assist the Court in understanding the impact(s) of those enclosed balconies. 4. The question remains as to whether a cl 4.6 Written Request to justify the contravention of the FSR development standard is required as a jurisdictional prerequisite for the Development Appeal which seeks consent for 'use', in other words, the development application does not seek consent for any construction or any building. It is my view that the DA Appeal for 'use' does not contravene any development standard and the court is not required to be satisfied of the jurisdictional prerequisites provided by cl 4.6 of the PLEP. I set out my reasons below. Does a development application for 'use' contravene a development standard? 1. Before the Court can grant consent for development that contravenes a development standard the provisions of cl 4.6(3) and (4) of the PLEP needs to be satisfied and these provisions provide as follows: (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 Planning Secretary has been obtained. 1. I am satisfied that cl 4.6 of the PLEP applies to 'development' which contravene a 'development standard'. 2. The question to be answered is whether the Applicant seeks consent for development which contravenes a development standard and if the answer is yes then cl 4.6 of the PLEP provides a jurisdictional prerequisite for the Court in the DA Appeal, whereas if the answer is no, then the Court is not required to be satisfied of the matters provided for in cl 4.6 in order to grant consent for use. 3. In response to the Applicant's submissions relying on the use of the word 'building' in the FSR Development Standard, I note that the definition of 'development' in s 1.5 of the EPA Act does not include any mention of the word 'building', nor does it appear in cl 4.6 of the PLEP. Development, as defined includes use as follows: 1.5 Meaning of "development" (1) For the purposes of this Act, development is any of the following— (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. 1. The Development Appeal seeks consent for the "Use of as built enclosed balconies as winter gardens" and accordingly comes within the meaning of development pursuant to s 1.5(1)(a) of the EPA Act. I find that 'use' is development as defined in the EPA Act. The last remaining question is whether 'use' as a development is development which contravenes a development standard. 2. Development standard is defined in the EPA Act, and is also referred to by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action) at [10], and s 1.4 defines a development standard to mean: provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of— (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed. 1. The Applicant submits at par 48 of written submissions that if there is a breach of a development standard to which cl 4.6 of the PLEP applies, the Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power under cl 4.6(2) to grant development consent and refers to [14] in Initial Action. 2. The decision of Bignold J in Ireland held that "The present question requiring planning evaluation pursuant to s 79C of the Act was confined to the proposed use of the subject building rather than the question whether consent should be granted to the erection of the subject building and its use." (See also at [43]). 3. I am satisfied that although 'use' is development and requires development consent (s 1.5(1)(a) EPA Act), 'use' is not a development standard (s 1.4 EPA Act) and for this reason I find that the Proposed Development is not seeking consent for development which contravenes a development standard. Accordingly, it follows that I find that for the Development Appeal I am not required to consider the jurisdictional prerequisites set out in cl 4.6 of the PLEP as the Development Appeal seeking consent for 'use' does not involve the contravention of a development standard. What is the role or purpose of a cl 4.6 Written Request in the BIC Appeal? 1. In relation to the BIC Appeal, the parties agree, and I accept that the Court is required to undertake a notional assessment. The Applicant goes further and submits that the notional assessment is more akin to a modification rather than a development application and as a result a notional assessment of a modification application does not enliven the provisions of cl 4.6 of the PLEP. The Respondent submits on page 3 of written submissions, that: "for the Court to consider the application for the Building Information Certificate, it must undertake a notional assessment. In such an assessment, the breach of the FSR standard is a relevant consideration. To properly consider the impact of the breach of the FSR control, the Court should consider a notional 4.6 request." 1. I agree with the Respondent's submission and I find that the purpose of the cl 4.6 Written Request is firstly, limited to the BIC Appeal and that, in the BIC Appeal the cl 4.6 Written Request is to assist the Court as part of a proper consideration of the impact(s) of the contravention of the FSR Development Standard. 2. The Respondent submits that the cl 4.6 Written Request does not adequately address cl 4.6(3)(a) of the PLEP in that the relevant objectives of the FSR standard in cl 4.4 are not achieved and relies on the decision of Preston CJ in Initial Action at [37] and [87] and on the decision of Gray C in Ricola Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1047 at [96] and [97]. The Respondent concludes that as the proposal does not achieve the relevant objective of the FSR control nor is it consistent with the zone objectives the Court should not approve the Building Information Certificate and relies on [27] of Preston CJ's decision in Initial Action. 3. For the purpose of the BIC Appeal, the cl 4.6 Written Request is not a legal requirement or jurisdictional prerequisite as the task for the Court is to undertake a notional merit assessment. As stated above, the role and purpose of a cl 4.6 Written Request in the BIC Appeal is that it may be considered as background information to assist the Court in considering the impact(s) of enclosing the six (6) balconies including the impact of the additional 22m2 in GFA. The Respondent's submissions regarding any inadequacy of the cl 4.6 Written Request have been taken into account to assist the Court however they do not serve to determine the Court's power or jurisdiction in the BIC Appeal. 4. I have read the cl 4.6 Written Request prepared by Mr Byrnes and annexed to the JEPR and have considered the contents in the context of the BIC Appeal in order to understand the impacts of the unauthorised works for balcony enclosing works at the Site. 5. I will reflect my findings of the impact(s) of the balcony enclosing works as I address each contention below, being the following contentions: 1. Heritage Impact; 2. Bulk, scale and streetscape; 3. Private Open Space; and 4. Public Interest. Heritage Impact 1. The Heritage Impact contention centres around the location and proximity of the Site to significant buildings and Heritage Items. During the hearing the Court considered evidence from Mr Chong and the contentions relating to bulk and scale and in the increase in GFA are also related to this contention so there will be some overlap. 2. The Respondent submits that the enclosed balconies add bulk to the building which is visible from both O'Connell Street and Harold Street and therefore has an adverse impact on the existing heritage environment of this locality including the adjoining contributory item. This contention is applicable primarily to the BIC Appeal however I have considered the evidence and make findings applicable to both the BIC Appeal and the Development Appeal. 3. The Respondent further states that the enclosed balconies remove fenestrations and appear as a blank wall. Having reviewed the photographs in Exhibit B I do not agree that the enclosed balconies appear as a blank wall. 4. As the Site is located within the North Parramatta Heritage Conservation Area cl 5.10 of the PLEP applies to the BIC Appeal. It is relevant to note that cl 5.10 applies to consent sought for the types of development listed in subcl (2) which does not include 'use' as sought in the Development Appeal. 5. Clause 5.10(4) of the PLEP provides as follows: Cl 5.10(4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. I accept that cl 5.10(4) of the PLEP is not a jurisdictional prerequisite for the BIC Appeal as submitted by the Applicant in written submissions at par 77, however I am still required to consider the provision as part of the notional assessment of the BIC Appeal. 2. The Parramatta Development Control Plan 2011 (PDCP) provides for Heritage Conservation Areas in section 4.4 and North Parramatta and Sorrell Street is dealt with at section 4.4.4.1 including a Statement of Significance specific to North Parramatta as follows: "An area of early government subdivision in Parramatta that retains a considerable number of small dwellings and houses built from the mid-nineteenth century until the early twentieth century. In the nineteenth and early twentieth century this area was popular with the proprietors of businesses in Parramatta and it retains much of its residential character from this period. The predominance of small single storey cottages on their own allotments reflects the character of Parramatta north of the river from the mid nineteenth century until redevelopment for residential flats started in the 1960s. This area contains 46% of the dwellings that existed here in 1895." [emphasis added] 1. The Applicant asked questions of Mr Chong regarding the fact that when Council prepared the assessment report the Proposed Development was not referred to the internal heritage officer. It is relevant that Mr Chong is a Town Planner and does not have qualifications in relation to heritage. 2. In cross examination Mr Chong corrected or clarified his opinions expressed in the JEPR where he makes reference to "heritage items". Mr Chong clarified that the buildings he is concerned about are 56 and 60 O'Connell Street Parramatta and that these are significant buildings or contributory items in the Heritage Conservation Area but are not heritage items themselves. The Site is not located near any heritage items. 3. In cross examination Mr Chong conceded that this application won't change the contribution the two dwellings at 56 and 60 O'Connell Street make to the North Parramatta Heritage Conservation Area although Mr Chong did maintain his opinion that the relationship between these two dwellings and the Site is changed. He agreed that there is no impact on the North Parramatta Heritage Conservation Area. 4. Mr Byrnes gives his opinion regarding Heritage Impact on pages 13 to 15 of the JEPR and his evidence at par 2.24a is that the enclosure works are consistent with the existing character noted in the statement of significance for the heritage conservation area, noting that new works are encouraged to be in a contemporary style. The Applicant submits at pars 58 and 59 the cl 4.6 Written Request notes that the increase of 22m2 of GFA to the existing building does not have any substantive impact on heritage sites or their settings and that the adjoining and nearby heritage sites are unaffected with or without the winter gardens and that the cl 4.6 Written Request demonstrates that the enclosure of the balconies does respect the character and scale of the low density residential area as it does not alter the existing character or scale of the low density area. 5. Having considered the evidence of Mr Chong and Mr Byrnes together with the photographs tendered and the other documentary evidence, I find that the impact of the Proposed Development on the North Parramatta Heritage Conservation Area is negligible and is therefore acceptable, and I am satisfied that the matters in cl 5.10(4) of the PLEP have been adequately considered. Bulk, scale and streetscape 1. The Respondent contends that the enclosure of the balconies results in excessive bulk and creates a building that is incompatible with O'Connell Street and Harold Street. The Applicant submits that this contention is largely repetitive of the matters considered in relation to Heritage Impact and Increase in GFA and that ultimately this is a subjective issue. 2. I have described above the location of the enclosed balconies relative to the residential flat building and the street. Mr Chong, in the JEPR at par 2.13 page 9 expresses his opinion that the enclosed balconies "visually impinge on public domain" and the Applicant asked him a number of questions to clarify what he meant by this opinion. The Applicant submits that as the enclosed balconies are located at the back of the residential flat building there is a much smaller visual catchment with limited viewing. 3. It was agreed that O'Connell Street is a busy thoroughfare and Mr Chong accepted that unless a person in a car was actively looking for the enclosed balconies they would not necessarily notice them so only pedestrians walking along O'Connell and Harold Streets would see the enclosed balconies in the ways summarised by the Applicant below. 4. The bulk of the enclosed balconies is represented in the Nearmaps aerial photographs of 2014 and 2016 contained in Tab 7 of the Respondent's Bundle of Documents (Exhibit 1) and were described as little white squares in the roof form. Mr Chong agreed that the 'little white squares' visible in the Nearmaps photo dated 2 July 2016 represent the concern he has regarding excessive bulk resulting from the enclosure of the balconies. 5. Mr Chong was referred to a number of other photographs (Exhibit B) one by one to ascertain the visibility of the enclosed balconies from various locations. From the corner of O'Connell and Harold Street the balconies cannot be seen. From other locations he relies on 'glimpses' of the enclosed balconies. 6. The Applicant submits at par 82 of written submissions as follows: "At its highest, Mr Chong's evidence is that you can see the balconies to units 10 and 6 from an oblique side angle looking down the driveway from O'Connell Street and that the northern balconies of units 5 and 9 are visible from one location in Harold Street, with a glimpse of the eastern balconies of units 5 and 9 available from Harold Street. Mr Chong identifies the locations at figure 2 and 3 on p26 of the Joint Report." 1. Mr Byrnes, in answer to the question whether he thought that the enclosed structures depicted in photographs 7 and 8 contribute to the bulk of the building, said yes but that it was important to clarify that anything added to a building contributes to bulk and that the relevant question is whether the bulk is excessive and it is his expert conclusion that it is not excessive. 2. I accept the conclusion of Mr Byrnes in light of the evidence of Mr Chong and find that the contribution of the enclosed balconies to the bulk of the building is not excessive. 3. Mr Chong also gave evidence to the effect that the lack of articulation makes the building look like a commercial building (JEPR at par 2.13). He said in cross examination that the only way to achieve articulation is with open balconies as approved. Mr Chong however, agrees that the building presents as a residential flat building. I do not agree that the only way to achieve articulation is with open balconies. 4. Concern was also expressed by Mr Chong that the design language is different and noticeable because of the materials used and the size of the windows in the wintergardens. He agreed that this concern is 'reduced somewhat' now that the Applicant is proposing to install solid panels on the bottom half of the windows. When asked to compare windows with a solid element at the bottom Mr Chong agreed that the window openings were of a similar size to the larger living windows in the building. Mr Chong said that the enclosed balconies were inconsistent because it makes a change to the existing building. However, Mr Chong agrees that consistent does not mean exactly the same. 5. I have considered the evidence of Mr Chong and Mr Byrnes and I find that the treatment of the enclosed balconies results in them being consistent with the style of the building and provide an appropriate articulated finish. I find that the works are minor additions to an existing residential flat building, that have the limited visibility as set out above and that in terms of bulk, scale and streetscape, it is an appropriate outcome. Private Open Space (POS) 1. The Respondent contends that the proposed development fails to provide adequate private open spaces for occupants. 2. I accept, and the parties agree, that the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) does not apply, however I note that Mr Chong refers to the Australian Design Guide (ADG) (Exhibit E) in relation to the POS contention in his evidence. 3. Mr Chong acknowledged that he had focussed on POS as a primary source of amenity however it was put to Mr Chong in cross examination that the amenity consideration is not limited to the POS, and that you need to do a balancing act such as undertaking a wholistic consideration of the units themselves and the proximity to the park. Mr Chong accepted on balance that they may very well have. 4. The Applicant submits at pars 90 and 91 of written submissions that "90. If the ADG were to be applied as a 'rough measure', the Court would accept that the existing undersized apartments (Part 4D-1 ADG) benefit from the flexibility of use of a 'winter garden'. Indeed the design guidance given in control 4D-1 is that 'where minimum areas or room dimensions are not met, apartments need to demonstrate the usability and functionality of the space with realistically scale furniture layouts and circulation areas. These circumstances would be assessed on their merits. 91. When the assessment of functionality of the dated units is undertaken holistically, the Court would accept that 'wintergardens' consistent with part 4E-1 of the ADG are appropriate to maximise the amenity of the occupants." 1. I have considered the ADG as a rough measure and note that the ADG provides guidance on what to do when a development does not meet the minimum guidelines, in particular in relation to unit size and balcony size, and I have considered Parts 4D-1 and 4E-1 and note that there is an express statement that a "wintergarden might be appropriate". 2. In relation to the consideration of the impact of the enclosed balconies on amenity for occupants, Mr Byrnes' evidence is that when the balconies were enclosed it was not a matter of some amenity previously enjoyed being lost, but on the contrary that the amenity was improved. He is of the view that there is no negative impact at all. His view is that these enclosed balconies perform as wintergardens which can be shut down to the elements but still allow an extension of living space with the added benefit of light and ventilation. 3. I note that there was a change in ownership from company to individual owners when the strata plan was registered. I accept that there is no evidence of there having been any complaints regarding amenity and there have been no complaints regarding privacy from neighbours. 4. Upon doing the balancing act as agreed by the experts, to consider the impact of enclosing the balconies and converting them to wintergardens on the amenity of the occupants in the context of private open space I accept the evidence of Mr Byrnes and I find that the notional loss of private open space is only one consideration and that overall the amenity of the occupants of units 5, 6, 9 and 10 has been improved. Public interest 1. The public interest is a matter which, in determining a development application, the Court as consent authority is to take into consideration pursuant to s 4.15(1)(e) of EPA Act. 2. The DA SOFAC does not particularise the public interest consent and relies on above contentions for the Development Appeal. 3. The BIC SOFAC lists public interest as contention 8 and contends that the "proposal in its current form is not in the public interest as the as-built development represents an overdevelopment that is likely to have a substantial detrimental impact on the locality's natural environment." 4. It is noted that no submissions were received by the Respondent in response to notification to neighbours. 5. The Respondent's written submission is that: "to provide a development where half of the units do not have any private open space is contrary to sound planning and the public interest. Such a development does not promote the social welfare of the community, is not good design and provides poor amenity to the occupiers." 1. The evidence regarding amenity above does not support the Respondent's submission in relation to the Development Appeal and the submission is not strictly relevant to the BIC Appeal as particularised in the BIC SOFAC. 2. The cl 4.6 Written Request addresses the cl 4.6(4) of the PLEP public interest considerations at page 7 and I agree with the Applicant's submission at par 69 of written submissions that approval would maintain the public benefit by providing flexibility to improve the amenity for the intended occupants, without adversely impacting the community. 3. I find that the evidence before the Court does not support the contention that the use of the enclosed balconies as wintergardens DA Appeal and the BIC Appeal are not in the public interest. Dispute about proposed development consent condition 4 1. The final matter to be determined is the proposed conditions of consent. The Respondent seeks and the Applicant does not agree to the following proposed development consent condition: "4. The area of the enclosed balconies (Winter Gardens) are not to be used as habitable space of the units until a Building Information Certificate has been issued by Council. Reason: to ensure compliance with the BCA." 1. The Applicant does not agree with this proposed condition of consent noting that the enclosed balconies have in fact been used as habitable space since approximately 2014 and that in any event, the condition if imposed will only apply for a 90 day period if the BIC Appeal orders are complied with. 2. I have considered the agreed proposed orders and am satisfied that the reason for the proposed condition 4 will be adequately addressed on compliance with the agreed BIC Appeal orders and in the context of these spaces having been used as habitable space for over 6 years I am not satisfied that the proposed consent condition 4 is appropriate or required. Orders 1. In the Development Application Appeal proceedings 2020/123194 the Court orders that: 1. The appeal is upheld. 2. The Development Application No. DA/578/2019 seeking approval for the use of six (6) balconies on the first and second floor for the activity of winter gardens for a residential purpose at Strata Plan 85171 otherwise described as 58 O'Connell Street, Parramatta is approved subject to conditions of consent at Annexure "A". 3. Return Exhibits except Exhibits A, B, F, 1, 2, 3, 4, 1. In the Building Information Certificate Appeal proceedings 2020/239798 the Court orders that: 1. The appeal is upheld. 2. The Applicant is granted leave to rely upon: 1. Drawing Nos 01/03 to 03/03, Revision A, prepared by JS Architects Pty Ltd dated 15 December 2020; 2. Performance Solution Report (Suitability of Reduced Height Rooms) prepared by AI Consultancy dated 27 August 2020; 3. Compliance Statement (Reference No. 210006 – R1.1(FH)) prepared by AI Consultancy dated 29 January 2021; 4. Compliance Statement (Reference No. 210006 – R1.1(H)) prepared by AI Consultancy dated 29 January 2021 (Hebel Compliance Statement); and 5. Fire Engineering Report prepared by Code Performance Pty Ltd dated 1 February 2021 (Fire Engineering Report). 1. The Applicant is to carry out the following works within 90 days: 1. Installation of the Hebel Fire Rated External Works depicted on Drawing Nos 01/03 to 03/03, Revision A, prepared by JS Architects Pty Ltd dated 15 December 2020 (Hebel Panels); 2. Option 2 at page 5 of the Fire Engineering Report prepared by Code Performance Pty Ltd dated 1 February 2021 (Protection of Opening Works); 3. Rectification of any roof leaks to the six (6) balconies to comply with Part F1 Damp and Weatherproofing of the Building Code of Australia (Roof Leak Rectification). 1. Within 14 days of completing the works referred to in order (3), the Applicant is to provide to the City of Parramatta Council the following certificates in relation to the works outlined in order (3): 1. Certificate issued by a suitable qualified Fire Engineer or equivalent person that the Hebel Panels have been constructed in accordance with the Hebel Panel Compliance Statement; 2. Certificate issued by a suitable qualified Fire Engineer or equivalent person that the Protection of Openings Works have been constructed in accordance with the Fire Engineering Report; 3. Certification from a licenced building contractor that any applicable Roof Leak Rectification has been carried out; 4. Structural Adequacy Certificate from a practicing structural engineer confirming all balcony enclosure work has been constructed in accordance with the relevant Australian Standards. 5. Plumbing and drainage certification from a licensed plumber/stormwater engineer confirming compliance with the relevant provisions of AS3500; and 6. Glazing installation certificate confirming the windows have been installed in accordance with AS1288 and AS2047. 1. Upon the City of Parramatta Council providing notice to the Applicant in writing that the Applicant has complied with order (4), the Council is directed to issue a building information certificate for the enclosure of the six (6) balconies on the first and second floor of the residential flat building at Strata Plan 85171 otherwise described as 58 O'Connell Street, Parramatta 2. In the event that the Council has not issued a building information certificate within 14 days of the Applicant providing notice as referred to in order (5), the Applicant has liberty to apply to the Court by way of notice of motion to restore this matter to the list. ………………………. E Espinosa Commissioner of the Court Annexure A (142639, 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: 27 May 2021