Marco De Rossi v Parramatta City Council [2006] NSWLEC 13

Land and Environment Court of New South Wales

CITATION : Marco De Rossi v Parramatta City Council [2006] NSWLEC 13

APPLICANT Marco De Rossi PARTIES : RESPONDENT Parramatta City Council

FILE NUMBER(S) : 11587 of 2004

CORAM: Murrell C

KEY ISSUES: Development Application :- Multi-unit development - streetscape - impact on adjoining neighbours - weight to be given to rezoning and savings provision

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta Local Environmental Plan 2001 & Amendment II Parramatta Develoopment Control Plan 2001

CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 (3 October 2003); Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 06/09/2005 and 28/09/2005

DATE OF JUDGMENT: 01/13/2006

APPLICANT Mr R Creighton, agent and Ms Sandra De Rossi, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr C Gough, solicitor SOLICITORS Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murell C

13 January 2006

11587 of 2004 Marco De Rossi v Parramatta City Council

JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Parramatta City Council's refusal of a development application for a multi-unit development at the property known as 36 Caloola Road, Wentworthville. 2 The subject site is located on the western side of Caloola Road, between Geoffrey Street to the north and Boonah Street to the south. Refer to the locality plan at figure 1. The site has a frontage to Caloola Road of 18.3 m with side boundaries of approximately 36.6 m yielding a site area of 648.3 sq m. Currently on the subject site there is a single storey weatherboard dwelling with ancillary structures including a garage and shed. The topography is relatively even. 3 At the rear of the site there is a large well vegetated area of land that has access from a laneway adjoining the southern boundary of the adjoining property at No. 34 Caloola Road that has a large two storey brick dwelling house of a more recent period than the older stock of dwellings in the street. 4 To the north of the site there is a single storey detached dwelling with a carport and detached garage adjacent to the common boundary. The area generally is characterised by a mixture of dwelling forms ranging from single storey cottages, two storey masonry dwellings with a scattering of villa and town house style multi-unit development. However, the predominant character is detached single storey and two dwelling houses, and on the western side of the street in the block of the subject site there are mainly single storey dwellings. 5 At the rear of the site there is a multi-unit townhouse development located approximately 5 m from the rear boundary of the subject site. This multi-unit development is served by an access handle from Caloola Road. Diagonally opposite the subject site there is a federation era dwelling house. 6 The proposal is for the demolition of the existing dwelling and structures and the erection of a two storey multi-unit development containing three dwellings over a level of basement parking. The site plan is attached as figure 2. 7 The planning regime for the subject site is as follows: 8 Under the Parramatta Local Environmental Plan 2001, the site is zoned Residential 2(a) and the zone objectives are: (a) To enhance the amenity and characteristics of the established residential area; (b) To encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural of the area and (c) To ensure the building form including that of alterations and addition is in character of the surrounding built environment … 9 Permissible uses in the zone include dual occupancies, dwelling houses, granny flats, housing for older people or with people with a disability. 10 Amendment No. 11 to the LEP contains a savings provision that enables council to determine the application despite the rezoning of the land from 2B to 2A. 11 The subject site and the surrounding area was down-zoned from Residential 2B to Residential 2A on the 26 March 2004 by an amendment to the Local Environmental Plan 2001 known as Amendment No. 11—Old Toongabbie/Wentworthville. The 2B zone allows for multi-unit dwellings as shown in the Development Application. However, the 2A zone prohibits multi-unit development. Amendment No. 11 contains a savings provision at cl 5 and reads as follows: "a development application lodged but not finally determined before the commencement of this plan in relation to land which this plan applies is to be determined as if the plan has not been made". 12 Having regard to the rezoning and the savings provision it is also of interest to look at the zone objectives for 2B. For the 2B zone the objectives are: (a) to enhance the amenity and characteristics of the established residential area; (b) to encourage redevelopment of low density housing forms, including dual occupancies and multi-unit housing where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area and (c) to ensure that building form … is in character with the surrounding built environment … 13 Multi-unit housing is defined in the LEP as: "three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling …". Dual occupancy means "two separate self-contained dwellings on a single allotment of land". 14 Clause 16(3) states that : "consent must not be granted …unless… the carrying out of the development is consistent with the objectives of the zone …" 15 The Parramatta Development Control Plan 2001 provides guidelines for development in the Parramatta City Council area. Section 4 .3.1 considers amenity issues of visual and acoustic privacy, safety and security, public domain, vehicular access and parking access. For visual privacy the DCP states that "direct overlooking of habitable rooms and private open space of other dwellings is to be minimised through building layout, the location and design of windows and balconies and screening devices, including landscaping". 16 The design solutions and controls for basement parking are that it should be located under the building footprint and project no more than 1200 mm above natural ground level. 17 For views and vistas the objective is to ensure that significant view corridors are protected from development and to minimise view loss to adjoining buildings while providing opportunities for views from the development. 18 Section 4.4 includes a number of design elements in particular the streetscape objectives include: o Complement and conserve the visual character of the street and neighbourhood through appropriate building scale form detail and finish o Reinforce or sensitively relate to existing streetscape features such building setbacks, alignments, heights, landscaping, vegetation and fence design.