Land and Environment Court of New South Wales CITATION : Raouf and Rita Hanna v Parramatta City Council [2004] NSWLEC 175 PARTIES : Raouf and Rita Hanna v Parramatta City Council FILE NUMBER(S) : 11057 of 2003 CORAM: Brown C KEY ISSUES: Development Application :- Demolition of existing improvements - solar access - landscaping streetscape/character - rear setback - building separation - overlooking - carpark access - attics LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001 CASES CITED: DATES OF HEARING: 05-06/04/04 DATE OF JUDGMENT: 04/28/2004 APPLICANT Mr Bruce Goldsmith, agent LEGAL REPRESENTATIVES: RESPONDENT Mr J Johnson, barrister SOLICITORS Storey and Gough JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11057 of 2003 Brown C 28 April 2004 Raouf and Rita Hanna (previously Lamada Construction Pty Limited) Applicant v Parramatta City Council Respondent Judgment . Introduction 1 . This is an appeal against the refusal by Parramatta City Council (the council) of Development Application 03/1340 for the demolition of all existing structures and the erection of a multi unit housing development at 509 and 511 Wentworth Avenue, Toongabbie (the subject site). 2 . I record that a view of the subject site and surrounding area was undertaken on the morning of the first day of the hearing with representatives from both parties. 3 . During the proceedings, an application was made, and accepted by the Court to change the name of the applicant from Lamada Construction Pty Limited to Raouf and Rita Hanna, the registered owners of the subject site. 4 . For the reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions. The subject site and surrounding area 5 . The subject site is described as Lot 1 in DP 32329 and Lot 20 in DP 9907. It is rectangular in the shape with a frontage to Wentworth Avenue of 36.6 m, a depth of 61 m giving a total site area of 2230 m2. It is generally flat with no significant natural features. 6 . The subject site presently contains two single storey dwellings of fibro and weatherboard construction and ancillary structures located towards the rear. Approximately 12 trees are located at various points within the subject site. 7 . The surrounding area is made up of a mixture of single and two storey residential dwellings, residential apartment buildings and commercial developments. The property to the north-east contains a single storey fibro cottage and the property to the south-west contains a three storey residential apartment building with attics. The properties to the rear, with access from Cooyong Crescent, consist of single and two storey residential dwellings. The proposed development 8 . The proposed development seeks the demolition of all existing structures on the subject site and erection of 15 townhouses with attics, over a basement carpark. The townhouses are located in three separate blocks. Block A contains townhouses 1 to 6, Block B contains townhouses 7 to 9 and Block C contains townhouses 10 to 15 (see Attachment 1). The townhouses are 2 storeys in height with additional accommodation in an attic space. Each townhouse has an open floor plan arrangement with living room, dining room, kitchen and combined toilet/laundry on the ground floor. The first floor contains two bedrooms and a bathroom. The attic room contains a bedroom and ensuite. Private open space is provided in the form of courtyards at ground level. An area of communal open space is also the provided in the centre of the subject site. Relevant planning controls 9 . The subject site is zoned Residential 2B under the provisions of Parramatta Local Environmental Plan 2001 (the LEP). The proposed development is a permissible use within this zone. Clause 16(3) states that consent must not be granted unless the proposal " is consistent with the objectives of the zone within which the development is proposed to be carried out" . The zone objectives are contained within the zoning table for the Residential 2B Zone. The relevant objectives are (a) and (c). 10 . Parramatta Development Control Plan 2001 (the DCP) also applies to the subject site. The relevant provisions are cl 4.1 - Environmental Performance in relation to solar access and landscaping and soft soil planting, cl 4.3 - Amenity Issues in relation to visual privacy, cl 4.4 - Design Elements in relation to layout, streetscape, building form, attics, landscape and open space and cl 5.5 - Multi Unit Housing. The issues 11 . The council filed a Statement of Issues containing 22 separate issues. Those issues not pressed by the council can be conveniently grouped into the following areas: 1) whether the proposed development provides adequate solar access (Issues 6 and 7), 2) whether the proposed development provides adequate landscaping (Issues 3, 5 and 12), 3) whether the proposed development adequately addresses the streetscape and character of the area (Issues 1, 9, 15, 16 and 17), and 4) whether the proposed design adequately addresses the rear setback (Issue 3), building separation (Issue 4), overlooking (Issue 8), carpark access (Issue 11) and attics (Issue 14). 12 . Those issues not pressed by the council or addressed through conditions relate to floor space ratio (Issue 2), carparking layout and access (Issues 10, 11 and 13), adequacy of plans (Issue 18), drainage (Issue 19), tree retention (Issue 20) and balconies (Issue 21). The public interest (Issue 22) is addressed as part of the discussion on the active issues. 13 . As a preliminary issue, Mr Goldsmith, the applicant's agent, objected to the evidence of the council's town planner Mr Stuart Mortlock as it had not been prepared in accordance with the Court's Expert Witness Practice Direction 2003. Expert Witness Practice Direction 2003 14 . Mr Goldsmith submitted that the evidence of Mr Mortlock was not admissible as it was not prepared in accordance with the Court's Expert Witness Practice Direction 2003. Paragraph 4 states that unless an expert witness report contains an acknowledgement by the expert witness that he or she has read the code and agrees to be bound by it, the report shall not be admitted into evidence and oral evidence shall not be received. Mr Johnson, the council's advocate, submitted that while Mr Mortlock had incorrectly referred to the superseded 1999 Practice Direction in his report he had still acknowledged his responsibility as an expert witness to the Court with a reference to this document. He also relied on the statement of Mr Mortlock, under oath, that he has since read the Court's Expert Witness Practice Direction 2003 and that the conclusions reached in his report are unchanged after reading this document. 15 . In allowing the expert report of Mr Mortlock to be admitted into evidence and for him to provide oral evidence, the Court took cognisance of fact that his report was prepared in accordance with the superseded 1999 Practice Direction and the similar obligations it places on expert witnesses to the contained within the Court's Expert Witness Practice Direction 2003. I acknowledge the submission of Mr Goldsmith would have far greater force and would have been accepted if Mr Mortlocks report did not contain a reference to the 1999 Practice Direction. Solar access 16 . Mr Mortlock provided evidence for the council and Mr James Lovell, also a town planner, provided evidence for the applicant. There was agreement between the experts that the proposal did not satisfy the requirements in cl 4.1.1 and 5.5 of the DCP in that "dwellings within the development site … must receive a minimum of 3 hours sunlight … in at least 50% of the private open between 9 am and 3 pm on the 21 June" . While accepting that the proposal did not satisfy the DCP requirements, Mr Mortlock and Mr Lovell also adopted different approaches to assessing the solar access. 17 . Mr Mortlock adopted a literal interpretation of the DCP. He included any shadows cast by the proposed internal fencing of the courtyards. A table was produced (and agreed to by Mr Lovell) that provided the areas cast by shadows on the courtyards at 9 am, midday and 3 pm, including the internal boundary fences. He states that the private open space areas of townhouses 2 to 6 and townhouses 10 to 14 are located to the south-east of the buildings and therefore receive full sunlight at 9 am, however by 10 am the shadow of the buildings begins to extend over the courtyard areas and by 3 pm these areas are in full shadow. He describes this impact as having a detrimental effect on the amenity and the usability of the townhouses. 18 . Mr Lovell adopts a more holistic approach to the assessment of solar access. He notes that the courtyards satisfy the minimum area and dimensions in the DCP. In assessing the adequacy of solar access, he includes other compensating factors to show why the overall level of solar access is acceptable. These include the size and dimension of the courtyards, the ability to access secondary courtyards from primary living rooms, the usability of secondary courtyards, the availability of communal open space and the limited opportunities for alternate designs. He rejects the proposition of Mr Mortlock that fencing should be included in the assessment of solar access. He provided a table that shows the areas of shadows cast on the courtyards at 9 am, midday and 3 pm, excluding the internal boundary fences. To support his position he provided hypothetical courtyard designs satisfying the DCP requirements. With perimeter fencing and with optimal orientation, the hypothetical courtyard designs could not satisfy the council's requirements for solar access. He also suggested that it was unreasonable to expect that future residents would not take advantage of available sunlight in the primary courtyards, either by sitting or standing, even if shadows were cast over the ground. 19 . In addressing the issue of solar access, and if the only source of solar access was to the primary courtyards, I would support the conclusions of Mr Mortlock. A comparison of the tables produced by Mr Mortlock and Mr Lovell predictably favour Mr Lovell, but only at 9 am. At midday and 3 pm the differences are not significant as the shadows cast over the courtyards result from the proposed buildings and not the boundary fencing. This leaves the question of whether the compensating factors, as outlined by Mr Lovell, overcome the deficiencies of the primary courtyards. 20 . In accepting Mr Lovell's evidence that it does, I have taken into consideration the Performance Criteria relating to Siting of the Building and Open Space. These criteria state that "winter sun access and summer shade are maximised" and "northerly and eastern aspect is maximised, southern and western facades are minimised". The objective is to provide solar access to the proposed townhouses and not necessarily limiting any opportunities to the primary courtyards, although this is undoubtedly a desirable design feature. The secondary courtyards are located on the opposite side of the townhouses to the primary courtyards and generally have a north-westerly orientation and as such have a greater opportunity to obtain greater solar access than the primary courtyards. The secondary courtyards also have direct access from the living rooms of the townhouses.. They vary in size with the smallest around 10 m2 and the largest around 22 m2. The secondary courtyards facing Wentworth Avenue are around 16 m2 in area. While they have a reduced amenity when compared to the other internal secondary courtyards because of their street frontage, they still provide an adequate level of solar access. Generally, the secondary courtyards provide an opportunity for winter sun in times when the primary courtyards will be in shade. There is no practical reason why these areas should be discounted or deleted in any assessment of solar access as they perform valuable role in winter. I also accept that additional open space, with good solar access, is also provided through the communal open space area of 140 m2 in the centre of the site. 21 I am also not convinced that an accurate assessment of the solar access to an area is obtained by totally excluding any shadows cast by fencing for the reasons explained by Mr Lovell. It is a matter of taking a practical approach and looking at the particular circumstances of each case. 22 . In considering the areas of open space available to future occupants that enjoy good solar access in winter and the Performance Criteria relating to Siting of the Building and Open Space in the DCP, I agree with Mr Lovell that the overall provision of solar access is acceptable. In coming to this conclusion I am also mindful of the orientation of the subject site and the council's requirements that stipulate the general form of development (see cl 5.5). The council argued strongly that the removal of Block B would provide greater opportunities for solar access and while this may be true, the Court's role is to assess the application before it. The councils argument would have more force if the proposed development did not comply with the DCP minimum courtyard areas and also the floor space ratio. Landscaping 23 . Clause 5.5 of the DCP requires "30% of the site is to be a soft soil zone". It further requires " a minimum of 50% of the soft soil requirement must be located in the rear of the site". The objective of these requirements is to provide a continuous vegetation corridor and a deep soil planting zone, predominantly at the rear of the site. 24 . There was no dispute that the proposed development satisfies the overall 30% requirement for soft soil. The difference between Mr Mortlock and Mr Lovell centred on the requirement that 50% is to be located in the rear of the site. Mr Mortlock takes the view that this relates to the area located between the rear building line and the rear boundary, excluding any steps and landings. He calculates this area as 280 m2. The DCP requires an area of 334.5 m2. Mr Mortlock maintains that the deficiency is a result of the rear setback being 8 m instead of 9.1 m, as required by cl 5.5 of the DCP. 25 . Mr Lovell states that the proposed development provides 339.2 m2 of soft area at the rear of the site and as such complies with the 50% requirement. He includes an area adjoining the rear setback along the north-west boundary that was not included by Mr Mortlock. 26 . On this issue, I accept that the proposed development satisfies the requirements in the DCP for soft soil zones. The DCP does not specifically require that the 50 percent requirement for soft soil be limited to the rear setback. It clearly refers to "the rear of the site" as distinct from the rear setback. If the area of proposed soft soil area at the rear of the site is tested against the objectives for landscaping and soft soil in cl 4.1.7, then the proposed development is acceptable. 27 . Clause 4.3.5 of the DCP requires that "basement carparking should be located under the building footprint". Mr Mortlock states and the central portion of the basement carpark extends approximately 9.5 m past the front building alignment of the central townhouses. This area is located under private courtyards of townhouses 3 to 9. Mr Lovell accepts the departure from the DCP requirements however states that it is not a significant departure as the proposed development complies with the soft soil area requirement and makes provision for a substantial number of larger canopy trees and elsewhere on the subject site. 28 . I agree with comments of Mr Lovell and find the departure from this requirement does not unnecessarily impact on the provision of landscaping and generally creates no impacts that would warrant a redesign or the refusal of the development application. Streetscape and character of the area 29 . The impact on the streetscape and character of the area is an issue raised by the objectives of the 2B Residential Zone and various clauses within the DCP, particularly cl 4.4 and cl 5.5. 30 . Mr Mortlock states that the proposal will reduce the amenity and characteristics of the nearby established residential area, which is highlighted by generally low density housing forms on relatively flat or gently sloping land. He is also critical of the design by stating that the street presentation does not respond to the existing streetscape and is out of scale. The massing is also accentuated by the proposed built form, which does not provide a great deal of depth in terms of varied front building alignment When consideration is given to the broader building form, the proposal has a greater mass, increased building bulk and a footprint that is not in character with the surrounding built environment. 31 . Mr Mortlock also raises some internal design features, such as the building separation, the rear setback and attics at the rear of the site that adversely impact on the character of the area. For these reasons, Mr Mortlock concludes that the proposal is not in character with the surrounding built environment and is unacceptable. 32 . Mr Lovell takes the opposite view. He describes the surrounding area as undergoing a transition and renewal process. In his opinion, any assessment should consider the likely future development that will occur on surrounding land, as well as more contemporary development that already exists on the adjoining land to the south-west and south-east. The subject site represents the south-western extent of the land likely to accommodate multi unit housing and considering the physical backdrop created in that direction by the existing larger residential flat building, the proposal has an appropriate built form. 33 . Mr Lovell rejects the criticisms of Mr Mortlock on the building design and its presentation to the street. He states the proposed development complies with the 2 storey-control and the provisions for the attic level. He notes the street elevation includes a combination of recessed and protruding elements to provide visual depth. The perimeter of the site also allows a considerable number of canopy trees to be provided. He concludes by stating that the proposed development will make a positive contribution to the future development of the surrounding area and is generally consistent with the objectives of the zone. 34 . With the benefit of the view of the subject site and the surrounding area, I concur with the comments of Mr Lovell. The existing single storey dwellings in Wentworth Avenue do not, in my opinion, provide a suitable benchmark for assessing the character of the area. The council's planning controls clearly contemplate a form of development along Wentworth Avenue similar to that proposed in this application. Mr Lovell's description of the area undergoing a transition is a valid observation and a relevant consideration in determining the character of the area. 35 . The site to the north-west contains a 3 storeys with attic residential development. While this development is largely located within a different zone it will present as a larger and more imposing building than the proposed development. The proposal will sit comfortably in this context. 36 . The dwellings located at the rear of the subject site in Cooyong Crescent are zoned 2A Residential and provide for residential development in the form of dwellings and dual occupancies. These are a less dense form of residential development than proposed on the subject site however this is not itself a sufficient reason to suggest that the proposed development will be out of character with the dwellings in Cooyong Crescent. The different forms of development are envisaged by the LEP and how they relate is largely a function of design. Based on the good separation between the buildings and the screening effect of the proposed landscaping, I find that the relationship is acceptable. 37 . I also accept the evidence of Mr Lovell that the building design is acceptable in the streetscape and when considered against the likely future character of the area. The zone objectives seek " to enhance the amenity and characteristics of the established residential area" (Objective (a)) and "ensure that building form, including that of alterations and additions, is in character with the surrounding built environment" (Objective (c)). Pursuant to cl 16 (3) of the LEP, I find that the proposed development is consistent with these objectives. Building design Rear setback 38. Clause 5.5 of the DCP states, "the rear setback is a minimum of 15% of the site. This is a soft soil zone". The proposed development provides a rear setback of 8 m whereas the DCP requires a setback of 9.1 m. 39. Mr Mortlock identifies this area as being required for a soft soil zone and for recreational purposes. For reasons set out in the judgment, the rear setback area is satisfactory in terms of a soft soil zone. I also accept that the rear setback area is adequate for recreational purposes, having satisfied the minimum requirements for courtyards and also for building separation.. Building separation 40. Clause 5.5 of the DCP states, "the distance of separation between the rows of dwellings is a minimum of 12 m". The proposal provides a separation distance between Block A and Block B of 8 m and between Block B and Block C of 6.6 m. The separation distance between the Block A and Block C is 26 m. 41. Mr Mortlock states that reduced building separation will allow direct overlooking of the private courtyards of townhouses 7 to 9. While the proposal has sought to address this through the provision of privacy screens an acceptable amount of privacy has not been achieved. Mr Lovell states that the siting of the buildings concentrates the outlook from the individual dwellings towards the open, central portion of the site accommodating the communal open space. This area also provides the opportunity for mature tree planting. 42. The Performance Criteria states, "where there are multi rows of dwellings, building should be adequately separated to provide privacy and a buffer zone between the living areas of each row of dwellings". Other Performance Criteria seek to "provide the opportunity for mature tree planting" and "minimise overlooking … of private open spaces and windows of neighbouring properties". 43. Mr Mortlock focused his concerns on the private courtyards of townhouses 7 to 9 to support his underlying thesis that these townhouses should be deleted. As I understand, Mr Mortlock's concerns relate to the first floor bedrooms and not the ground level living areas. While the opportunity exists for overlooking into the courtyards of these townhouses, a similar opportunity exists for the courtyards in Block A and Block C from adjoining townhouses. This results, to a large extent, from the building layout specified in the DCP and the density of development. The use of the rooms, as bedrooms, will also a limit the opportunities for overlooking. Overall, I accept that the separation between Block B and Blocks A and C will not have an unacceptable impact on privacy. Overlooking 44. Overlooking was raised as an issue in relation to the first floor balconies of townhouses 7 to 9 and the existing building to the north-west. During the proceedings the applicant amended the plans to delete these balconies to address the concerns of the council. During the view, a resident of the adjoining building, Ms Toni Hill, expressed a concern that the proposed development, particularly those townhouses in Block C will overlook her balcony area. The source of overlooking was identified as being from the rear facing balconies and attic windows of the proposed development. With the benefit of the view and an understanding of the location of the proposed development, a minimum separation of some 15 m is provided between the two buildings. In my view, this is an adequate separation to retain a reasonable level of privacy between two buildings. Car park access 45. Clause 5.5 of the DCP states "direct access should be provided from the basement carpark areas to dwelling units for resident safety". The proposed development provides three separate stairwells from the basement carpark to the ground level of the development. These do not provide direct access to the dwelling units, only to the common areas, generally in the middle of the site. 46. In accepting that the proposed development does not satisfy the DCP requirements for carpark access, I accept that the departure is not of such severity as to warrant the amendment or refusal of the development application. I am not convinced that pedestrian safety is compromised by the proposed access arrangements as convenient and relatively direct access is still provided to each of the proposed townhouses. Attics 47. Clause 4.4.2 of the DCP states, "attic rooms are to be no greater than 25 m2 in total and (are permitted) are only on the front row of dwellings". The proposed development provides attic rooms with an area of 31 m2. Additionally, all townhouses have attics and not just those in the front row of dwellings. 48. Mr Mortlock identifies the purpose of the attic requirements as a means of not using the attic area as a separate dwelling unit, ensuring that the building bulk is distributed to the front of the site and minimal impact is attributed to adjoining properties from overshadowing, overlooking and loss of views. 49. Mr Lovell states that the size of the attics is fundamentally an outcome of the configuration of the ground and first floor levels. The attics are contained within a roof form limited to a single ridgeline and do not considerably or unreasonably contribute to the bulk of the building form. 50. If the proposed attics are tested against the objectives suggested by Mr Mortlock then I agree with the conclusions of Mr Lovell. There was no evidence to suggest how the attics could be used as a separate dwelling unit. It is an unlikely scenario as all access to the attics is through the remaining area of the townhouse. I am also not convinced that the attics create any undesirable amenity impacts in relation to overshadowing, overlooking and loss of views that would suggest that they should be deleted. While not being a significant factor in the Courts conclusion, I note that the requirement for attics to be located only in the front row of dwellings came into effect after the development application was lodged with the council. Orders 51. For the foregoing reasons, the Orders of the Court are: 1) The appeal is upheld. 2) Development Application 03/1340 for the demolition of all existing structures and the erection of a multi unit housing development at 509 and 511 Wentworth Avenue, Toongabbie, is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of Exhibits 8 and A. _____________ G T Brown Commissioner of the Court rjs 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.