Bechara v Parramatta City Council [2004] NSWLEC 737

Land and Environment Court of New South Wales

CITATION : Bechara v Parramatta City Council [2004] NSWLEC 737 APPLICANT Charbel Bechara PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10585 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Demolition of an existing building - construction of a new two-storey building LEGISLATION CITED: Parramatta Local Environmental Plan 2001 Parramatta Development Control Plan CASES CITED: DATES OF HEARING: 23/11/2004 EX TEMPORE 11/23/2004 JUDGMENT DATE :

APPLICANT Mr C Maley, solicitor SOLICITORS Maclarens

LEGAL REPRESENTATIVES: RESPONDENT Mr C Gough, solicitor SOLICITORS Storey and Gough

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hussey C

23 November 2004

10585 of 2004 Charbel Bechara v Parramatta City Council

JUDGMENT 1 This appeal is against council's refusal of a development application for the demolition of an existing dwelling and construction of a new two-storey house at 16 Tennyson Street, Winston Hills. The subject site has an area of 557.4 sq m and contains an existing single storey dwelling house. There is a large camphor laurel tree in the backyard. The proposal involves the excavation for a basement garage, ground floor living area, first floor bedrooms, sitting room and bathrooms. 2 The main issues initially identified for the appeal concern the proposal's compliance with the zone objectives, building bulk, streetscape impacts, compliance with the Winston Hills special character provisions, tree removal and objections concerning the loss of privacy, excessive bulk and scale of the building. 3 For the appeal the parties agreed to the appointment of Mr A Ludvik as the Court appointed expert for planning. Accordingly he has submitted a detailed assessment of the proposal based on the current planning controls. He concludes that this proposal merits conditional consent incorporating several conditions requiring minor design alterations to the upstairs windows in order to achieve reasonable privacy for neighbouring properties. 4 The proposal has also been subject to a number of assessments by council's planning officers who also recommend conditional approval. This has resulted in council agreeing to consent orders for the proposal. Notwithstanding this a number of objections were made by the neighbours and they were given the opportunity to present their concerns at the site meeting. At the site meeting the parties agreed that the matter be completed by way of an on-site hearing. Planning controls 5 For my consideration of the proposal I have firstly considered the planning framework. The site is within the Residential 2A zone under the Parramatta Local Environmental Plan 2001. This type of development is permissible with consent and cl 13(3) provides the consent is not to be granted unless council is of the opinion that development consent is consistent with the objectives of the zone in which it is to be carried out. 6 Associated with the LEP provisions is Parramatta Development Control Plan which contains detailed controls for development. Of particular relevance are the special precinct controls. They include the site within the Winston Hills Precinct where the identified character type is wide frontage ranch style houses. 7 The main challenge to the consent orders from the neighbours is that this proposed dwelling is too high and bulky in the context of the immediate neighbourhood. Also that it will create unsatisfactory privacy and amenity impacts. However Mr Ludvik has comprehensively addressed the relevant matters for consideration with respect to the zone objectives. Objective 1 relates to the enhancement of the amenity and characteristics of the established residential areas. In this regard he says that the proposal needs to be considered in terms of the general characteristics of the area and not only in terms of the characteristics of development on adjoining properties and consideration needs to be given to design future character where there is a likelihood of change. 8 Accordingly he says that the existing dwelling house on the land is small, having a gross floor area of some 110 sq m exclusive of car parking. Consequently it is reasonable to presume that there will be future demand to increase the extent of building and the inevitable consequence is likely to be a first floor addition or a new two-storey structure of the nature contemplated in this application. By reference then to the development standards for height and FSR contained in Parramatta LEP and other quantitative controls in the DCP he finds that the proposed house envelope is compliant.