Land and Environment Court of New South Wales CITATION : Yuwana v Parramatta CC [2005] NSWLEC 447 APPLICANT Bing Yuwana PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10424 of 2005 CORAM: Moore C Development Consent :- Modification application KEY ISSUES: Public Access to reserve Garbage removal Bulk of proposal Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Conveyancing Act 1919 Parramatta Local Environment Plan CASES CITED: Zhang v Canterbury Council (2001) 115 LGERA 373 DATES OF HEARING: 1 and 2 August 2005 EX TEMPORE JUDGMENT DATE : 08/02/2005 APPLICANT Mr A. M. Pickles, barrister INSTRUCTED BY D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr J. Hughes, solicitor Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 2 August 2005 10424 of 2005 Bing Yuwana v Parramatta City Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the amendment of the detailed conditions to which the development consent is subject. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 This is an appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act), concerning a development proposed to be erected at Lots 1492, 1493, 1494 and 1495 in DP 36702 being 13 to 16 Carver Place, Dundas (the site). The appeal seeks modification of the development consent granted by Parramatta City Council (the council) by the deletion of a number of conditions of that consent. 2 It is convenient to deal with the matter by issue rather than by addressing the specific provisions of the development consent as the conclusions which I have reached will require some degree of re-framing of the conditions. 3 The first of the matters that is in contention relates to what might, neutrally, be described as a pathway proposed to be constructed along the side of the site on its boundary adjacent with 10 to 12 Carver Place, which is a site upon which a substantial redevelopment has also been approved by the council. 4 The proposed pathway is to be, in terms of its perspective from Carver Place, the left-hand element of a pair of mirror image pathways, which between them would provide a pathway from Carver Place to the Alan Cunningham Reserve at the rear of the properties and which pathway would have a formed width of some 3 m or so with 400 mm of landscaping on either side. 5 The pathway adjacent to the site forming part of the site of 10 to 12 Carver Place, has been the subject of a separate and similar s 96 modification application made to the council which application has been refused and which, on the information available to me and the parties, is not, at least at the present time, subject to any appeal in the Court. I am left, therefore, dealing with the issue of the appropriateness of the method of provision of the left-hand element of the pathway on the site which is the subject of these proceedings. 6 There is, as I perceive it, no suggestion by the applicant that the provision of the pathway as depicted on the site plan should be deleted, or that the landscaping associated with it is not appropriate or that the drainage pit at the downhill or reserve end of it ought not be incorporated and form part of the drainage system proposed for the site. 7 The matters that are in contention are, firstly, whether or not members of the general public should have access to the pathway and, if so, what should be the manner of provision of that access and whether the council should pay for the construction and/or maintenance of the pathway. 8 It is put by Ms Hughes, solicitor for the council, that the primary beneficiaries of the pathway will be residents of the dwellings on the site. In my view this is undoubtedly a correct statement. 9 It is, in slightly "Queen of Hearts speak", somewhat more correct for the portion of the pathway from the waste disposal bin storage area to Carver Place than that providing access from that approximate mid-point to the Alan Cunningham Reserve. 10 It is undoubtedly the position that not merely are the residents of the proposed dwellings the beneficiaries of that front portion of the pathway, the existence of that front portion of the pathway is a necessary and, indeed, sufficient precursor for the effective operation of the waste management facilities proposed for the site – that is, that portion of the pathway could not in any sense be regarded as discretionary whereas the question of access to the reserve might be so regarded. 11 In addition, during the course of the view of the site, I heard evidence from a number of resident objectors. The general tenor of their concerns about the development are matters to which I will return more fully in my consideration of the issue of the provision or otherwise of attics to the dwellings on the site. However, with respect to the proposed public right of way, it was made abundantly clear to me by each of the persons who gave evidence and who touched upon this topic that they did not wish, for a variety of reasons, including ecological and public security, to have public access provided through the site to the reserve. 12 Ms Hughes has drawn my attention to two of the very many public submissions that are in evidence before me which she points out as being the only two which deal with the question of the public right of way. 13 None of the public submissions in writing express objection to the right of way nor do the vast bulk of them offer any statement which might be construed as support for the public right of way. 14 Two letters are drawn to my attention, however, in this regard. The first is a letter from Helen and Brian Hughes of 3 May 2005, in which they say that construction and maintenance of the public access way should remain as per the council's development consent for it is meant to facilitate the proposed development of the sites. 15 My construction of those words are that it supports the construction and maintenance of the access way being a burden on the applicant. It does not, in my view, on any sensible and logical interpretation, constitute an endorsement of or desire for public access along that right of way. 16 The second letter that is drawn to my attention in this regard is a letter from Mark and Gale Wakem dated 26 April 2005, which, on its second page, deals with this proposition by saying the ratepayers should not have to pay the developer compensation for the proposed right of way or the ongoing maintenance. 17 In my view, the only logical conclusion to be drawn from this is an identical conclusion to that which I draw from the letter of Helen and Brian Hughes, namely, that there is no expression of support for public access through the site, merely a desire that its provision should not fall as a burden upon the ratepayers. 18 In evidence given to me, Ms Faulkner, a planner employed by the council, suggests that there are two reasons why there should be public access to the Alan Cunningham Reserve. 19 One is for the opportunities for recreation that she says exists in the open space on the reserve – there being, as observed on the view (and obvious from the aerial photograph contained in Mr Byrnes' statement of evidence – Mr Byrnes being the Court appointed expert planner in these proceedings), a significantly large grassed area of open space slightly on the downstream side of the site in the reserve. That portion of grassed open space was observed by me and the parties during the course of the view although no commentary was made on it at the time. 20 The second proposition that Ms Faulkner puts is that access to the reserve will facilitate pedestrian access upstream through the reserve to the adjoining neighbouring streets and to Marsden Road and thus to public transport, the area being, it is conceded by the parties, poorly otherwise served by public transport. 21 The council's Development Control Plan (the DCP) relevantly deals with access to areas such as the Alan Cunningham Reserve in 4.3.4, Public Domain Interface , where the purpose is to expand and improve the public domain in Parramatta. 22 There is no doubt that, in this context, the Alan Cunningham Reserve forms part of the public domain. The example is given in the third paragraph of the issues of this section of the DCP of the provision of through site pedestrian links contributing to shared pedestrian and community space and as part of the design solutions of this section of the DCP supporting the principles of public domain design. The concluding remark on p 82 of the DCP notes that pedestrian through-site links connecting local destination nodes are encouraged and finally, that recreational amenity would be assisted by the provision of such a link. 23 I am satisfied that the submission made by Ms Hughes underpinning this issue, namely, that the primary beneficiaries will be the residents of the site, is the correct one. I am also satisfied, from the view and the nature of the Alan Cunningham Reserve shown on the view, that there is no significant likelihood of organised active recreation taking place on it nor could there be described as significant opportunities for passive recreation in its present form. There is no evidence before me of any intention of the council to improve the quality of amenity of use of any portion of the Alan Cunningham Reserve. 24 A similar position applies to the provision of an upstream through pedestrian access way. I was not invited to walk such an access but from what was observed on the site, and in the absence of any invitation from the council to do so, my prima facie impression was that it was unlikely that such an access way would be attractive at any time other than in fair weather and bright sunlight. 25 As a result of all the foregoing, I accept the proposition that the primary beneficiaries would be the residents of the site. I accept the proposition from the residents that, for varying reasons, they do not wish public access through the site and I am not satisfied that notwithstanding my obligations to treat the Development Control Plan as the focus of my consideration as required by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, there is anything arising from the DCP as it would apply to this site that displaces the presumption that the primary and, on my view, almost the exclusive beneficiaries of such an access way will be the residents of the site. 26 Therefore, I am satisfied that it would not be appropriate to require that there be public access through the site to the reserve. 27 The consequences of that, it would seem to me, are these: + First, the gate presently shown on the plans at the rear of the proposed access way should be permitted to remain; + Second, the plans require amendment to require a gate at the front of the access way; and + Third, as I discussed with the parties, as a question of security, I am satisfied that it would be appropriate to require a condition that there be appropriate vandal-proof lighting along that pathway whether it is, as is now the position, to be an internal pathway or not. 28 I do not propose to impose a condition forbidding the applicant to fence the pathway, that being a matter that would be dealt with otherwise under the council's exempt and complying Development Control Plan and the fate of what I might describe as the centre line of the pathway can only be resolved in light of the fate of the element of the pathway on the proposed development at 10 to 12 Carver Place. 29 However, as I raised with Mr Pickles, counsel for the applicant, during the course of the proceedings, it would seem to me to be a logical absurdity if the development at 10 to 12 Carver Place were to go ahead (and its present conditions of consent were to be in any way modified in light of this decision) and there were not mutual , instruments under s 88B of the Conveyancing Act 1919 from each site in favour of the other. 30 However, as the position presently stands, the proposed pathway on 10 to 12 Carver Place remains a public pathway and that is a matter that will require further consideration by the applicant and the council. As a consequence, I merely express the view that if the status of the pathway on 10 to 12 Carver Place should in any fashion change, the obvious merits of mutual s 88B instruments is plainly self-evident and would be an appropriate matter for discussion between the developers of each site. I do not consider it would be appropriate for me to impose any condition in this regard. 31 I turn to the question of garbage disposal. I am satisfied that, on the evidence given to me by Ms Faulkner, the nature of the garbage collections (with a modest amendment to condition 63(4)(b) requiring that the bins be removed from the footpath either by sunset or 45 minutes after collection by the council's contractor, whichever is the later), is an appropriate regime to adopt. I am satisfied that the number of bins that will be located on the footpath is acceptable and that the requirement that they be removed comparatively promptly will deal with residents concerns that the bins will be left there for very lengthy and extensive periods of time. 32 I turn, finally, to the question of the proposed attics in each of the two blocks of units. 33 It was abundantly clear to me that the dominant concern of the residents about this development was the existence of the development in any fashion whatsoever. I heard a number of what could only be described as cris de coeur from the residents seeking to have me expunge the development from their locality in its entirety. I made it clear to them the limited scope of the matters that were being dealt with in these proceedings and that, no matter what the outcome of the proceedings two blocks of dwellings would be constructed on the site to the heights which had been approved by the council. 34 A matter which was of concern to me from my initial examination of the plans was whether from the section through Unit 10 there was in fact an exceedance of the height of the effective podium created by the underground car parking that would have caused the necessary reading of the building, in terms of the provisions of the Parramatta Local Environment Plan (the LEP), to be a three-storey building and therefore a building prohibited in the zone. 35 That has been countered in two fashions. 36 The first is the reading of the contours to which Mr Byrnes took me during the course of his evidence. 37 Whilst I am not satisfied that, given the contour intervals on the plan, there may not be, at least for Unit 10, a modest exceedance, the degree of modesty is such that it would be, in my view, de minimus. 38 In any event, it would appear only to apply to one unit, which would be capable of rectification by a modest further stepping down of the courtyard area so that it was accessed by two steps rather than one. 39 In addition, I have had tendered this morning provision of amendment No. 8 to the LEP , which increases the permitted podium exceedance from 1 m to 1200 mm, thus effectively removing any concern that I have in this regard. 40 In an exchange with Mr Pickles I raised the prospect that, there being agreement by the council (and, indeed, a notice of determination to give effect to agreement by the council that the attic rooms should be reinstated in the rear element of the proposal), as a consequence as part of my dealing with the appeal against a requirement that the attics be removed, I could reinstate them in the rear building and require a lowering of the roof pitch in the front building without the reinstatement of the attics. 41 Given the conclusion to which I have come with respect to the attics in the front building, I do not need to consider this further. 42 I am satisfied on the evidence of Ms Faulkner and Mr Byrnes that, given the approval of the roof pitch as presently proposed for each of the elements of the building, the dormers provide a degree of breaking of the bulk and scale of the building and render what might otherwise be regarded as a formidable roof structure one which is perhaps more acceptable in its context. 43 However, during the course of his evidence, Mr Byrnes made a suggestion concerning the opportunity to lower the pitch of the front portion of the proposal whilst still retaining attic spaces with dormer windows – he and Ms Faulkner both having agreed that the retention of dormer windows rather than either their removal or substitution with skylights was a desirable course to be pursued. 44 I have not been provided with any substantial evidence as to why attics would be acceptable in the rear block but unacceptable in the front given the shape and form of both buildings effectively being identical and given the agreed evidence of Mr Byrnes and Ms Faulkner that the dormer windows are a desirable part of the treatment of that roof scape. I therefore am left with no compelling technical reason why the attics should not be permitted in the front building. However, I am satisfied that a modest improvement in the presentation as postulated by Mr Byrnes would be desirable. 45 Mr Byrnes postulated that a reduction in the height of the ridgeline of the order of 1.2 m or more would be capable of achievement in terms of a sketch which he provided during the course of his evidence and which was tendered by the applicant. 46 The applicant has provided an alternative as Mr Byrnes suggested a greater degree of softening from the front by reducing the front half of the roof pitch 27 degrees. The applicant suggested that this could be achieved by lowering the rear half of the roof pitch to 27 degrees. The effect of the applicant's position would be to bring the dormer windows perhaps further forward than they are presently proposed and certainly significantly further forward than that which is proposed by Mr Byrnes. 47 I am satisfied that Mr Byrnes' position is the preferable one and that this ought be accomplished without any increase in length of the dormer windows or increase in th I am satisfied that Mr Byrnes' position is the preferable one and that this ought be accomplished without any increase in length of the dormer windows or increase in their relative height in the roofscape as a result. Therefore the plans will need to be amended to affect this. As a consequence of that there will be a necessity for revised conditions to be submitted and revised plans to be provided (to be settled between the parties) reflecting the elements of the decision that I have given this afternoon. 48 I therefore direct: 1. That the applicant file and serve amended plans reflecting this decision, settled with the council, by the close of business on 19 August 2005; 2. The respondent to file and serve settled amended conditions of consent by the close of business on 19 August 2005, such filing to be electronic and in accordance with Practice Direction 2 of 2005; 3. The matter is set down for call-over on 24 August 2005; 4. If the parties comply with directions (1) and (2) I will make orders in Chambers and vacate the call-over; and 5. Liberty to re-list before me at 9am on two days notice. 49 I should note two further matters. The formal orders will provide that there be no order for costs in the proceedings and, second, that the exhibits, other than exhibits A, B, C and F, will be returned. Tim Moore 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.