Anthony Zaiter v Parramatta City Council [2006] NSWLEC 205

Land and Environment Court of New South Wales

CITATION : Anthony Zaiter v Parramatta City Council [2006] NSWLEC 205

APPLICANT: PARTIES : Anthony Zaiter RESPONDENT: Parramatta City Council

FILE NUMBER(S) : 11163 of 2004

CORAM: Watts C at 1

Development Application :- Setback from Woodville Road KEY ISSUES: Amenity of private open space Solar access; and Resident submissions

Parramatta Local Environmental Plan 2001, (PLEP) LEGISLATION CITED: Parramatta Development Control Plan 2001, (DCP2001) Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED: Finpac 88 Investments v Ku-ring-gai Council [2005] NSWLEC 634 Lloyd and Robinson (1962) 107 CLR 142; Saab v Parramatta City Council [2003] NSWLEC 366

DATES OF HEARING: 27/03/2006

DATE OF JUDGMENT: 04/27/2006

APPLICANT: Mr P Clay, barrister instructed by Mr P Saab, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Macquarie Lawyers RESPONDENT: Mr C T Drury, solicitor SOLICITORS: Phillips Fox

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

27 April 2006

11163 of 2005 - Anthony Zaiter v Parramatta City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Parramatta City Council (the council) to refuse a development application to demolish four (4) existing dwelling houses and ancillary structures, to remove trees, to erect a four-storey mixed-use development comprising thirty (30) residential units; one retail unit; four (4) commercial units, over a two (2) levels of basement carparking and to strata subdivide the completed development at Lots 82-85 (inclusive), DP 128591, being Nos 190-196 Woodville Road, Merrylands. 2 I visited the land in company with the parties on the morning of the first day of the proceedings. Local residents gave evidence on site. 3 I have concluded that the application should succeed, as it is a development that is permissible under the previous planning controls that would be saved if proposed amendments are made to the planning regime, its position on the site is satisfactory and provides sufficient separation with the low-density residential zone to the west. The land 4 The land is situated on the corner Woodville Road and Claremont Street. The land is rectangular in plan with a frontage to Woodville Road of 64.01m and a frontage to Claremont Street of 33.46m. The area of the land is 2,428m2. 5 The land has a fall from the southwest to the northeast of about 1,500mm and 800mm from the southeast boundary to the northeast boundary. Two significant trees are located at the rear of the land. There are also five (5) significant Eucalypt street trees within the Claremont Street verge. 6 The existing structures comprise four (4) fibro dwelling houses, between 30 and 50 years old and a number of small outbuildings including sheds and garages. 7 There is a mix of single-storey dwellings and some two-storey dwellings along Claremont Street, with a mixed-use development currently under construction across the other side of Woodville Road. The land is immediately to the south of the Granville Showground. 8 The Merrylands Town Centre and railway station are located about 1km to the northwest within walking distance of the land. Relevant planning controls Parramatta Local Environmental Plan 2001, (PLEP) 9 Under the provisions of the PLEP the land is within Zone No 10 - Mixed Use and the proposal is permissible with consent. Draft Parramatta Local Environmental Plan 2001, (DLEP) 10 Mr Moody the Court-appointed town-planning expert, in reference to a draft LEP2001 in Issue 2 he sought confirmation of the council's solicitors as to the status of the DLEP and on 18 January 2006 was informed: In relation to the draft LEP, please note that Council has been informed by the Department of Planning that it does not support the draft LEP. 11 Mr Moody concluded that the DLEP should not be given significant weight, presumably as it would not be 'certain and imminent'. Parramatta Development Control Plan 2001, as amended (DCP2001) 12 On 18 October 2004, the council had resolved to exhibit draft amendments to the DCP2001 relating to development within the Mixed-Use 10 zone along Woodville Road. The proposed changes to the DCP2001 were exhibited from 27 October 2004 to 25 November 2004 and were adopted on 13 December 2004 and would limit the floor space ratio, FSR to 0.7:1 and a maximum height to three storeys, and 10.5m, [Note: Exhibit 6]. There is a difference of opinion between the parties as to whether the original DCP2001 or the amended DCP2001 should apply to the present application. 13 The council's solicitors notified the applicant in a letter dated 18 January 2006, that: In relation to the DCP, by resolution dated 13 December 2005 Council adopted amendments to the DCP including amendments to Parts 5.7.2 and 5.7.3 of the DCP. It was also resolved that the amendments were to apply to development application submitted on or after 27 October 2004. …The original application the subject of these proceedings was lodged on 29 July 2004, and consequently the DCP provisions prior to the amendment apply. 14 The original DCP2001 specified a maximum FSR for Mixed-Use development along Woodville Road as 1.5:1 and a maximum height was four storeys. The present application was lodged with the council under this original DCP2001. The parties agreed that the amended DCP2001 should be taken into account in order to better understand the likely future development of land nearby. 15 However, in a letter dated 18 January 2006, the council's solicitors indicated: …our submissions to the Court will include that the Court should have regard to the current planning instrument and that this development application must be assessed with reference to its facts and circumstances and its of consideration under s 79C of the Environmental Planning and Assessment Act 1979 .