Land and Environment Court of New South Wales CITATION : Malouf v Parramatta City Council [2006] NSWLEC 377 APPLICANTS Naaman Graham Malouf and George Mark Malouf PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11374 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Demolition , alterations and additions, heritage item,amenity impacts, floor space ratio. Parramatta Development Control Plan 2001, Parramatta Local Environmental Plan 1996 (Heritage and Conservation), LEGISLATION CITED: Parramatta Heritage Development Control Plan 2001 State Environmental Planning Policy No. 65 Design Quality of Residential Developments. State Environment Planning Policy No. 1 Development Standards DATES OF HEARING: 21/04/2006 EX TEMPORE JUDGMENT DATE : 04/21/2006 APPLICANTS Mr A Galasso, barrister Instructed by: Mr P O'Brien, solicitor SOLICITORS LEGAL REPRESENTATIVES: Harris and Company RESPONDENT Mr C Gough, solicitor SOLICITORS Storey & Gough JUDGMENT: - 4 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 21 April 2006 11374 of 2004 Naaman Graham Malouf and George Mark Malouf v Parramatta City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to the properties at Nos 465, 469, 471 and 473 Church Street Parramatta, and involves the demolition of two single storey dwelling houses, alterations and additions to two dwelling houses, one being Norfolk House, a heritage item, plus the erection of a three storey residential flat building above a basement carpark with access off Albert Street. Strata subdivision of the whole development is proposed. 2 The relatively flat corner site has a total area of 2109 square metres with a frontage to Albert Street of 32.41 metres, and a frontage to Church Street of 56.87 metres. 3 The locality in which the site is situated is characterised by a mixture of residential land uses, including detached dwellings and larger three storey residential flat buildings. Opposite the site across Church Street is a heritage listed cemetery. Other land uses in the nearby locality include retail and education. 4 The site is zoned Residential 2C under Parramatta Local Environmental Plan 2001. ("the LEP"). In this zone, houses and residential flat buildings are permissible with development consent. Also applicable to the site are Parramatta Development Control Plan 2001, Parramatta Local Environmental Plan 1996 (Heritage and Conservation),("the Heritage LEP") Parramatta Heritage Development Control Plan 2001 and State Environmental Planning Policy number 65 Design Quality of Residential Developments ("SEPP 65"). In relation to SEPP 65, the required assessment has been provided. 5 The application was advertised on at least two occasions, and three submissions were received. Only one of those submissions comprised an objection to the proposal, that being from the National Trust, which simply contends that it was against the proposed works based on the allegation that the property owner had undertaken unlawful works on the heritage item. I understand that these works were carried out in accordance with a council consent following a fire in the building. 6 Expert evidence was provided by the Court appointed experts, Mr R Staas, heritage consultant, and Mr G Rhodes, consultant town planner. Whilst there were initially a large number of issues in the case, a number of these were resolved by modifications to the proposal. The remaining issues fell into two categories: matters of relatively minor design detail, some of which can and have been resolved by conditions of consent or changes to the plans; and matters of determinative significance associated with proposed Units Nos 1, 4 and 7 in the residential flat building. 7 The latter matters involve amenity impacts mainly on the rear private open space associated with Norfolk House, and the impacts that these three units in terms of their built form would have on the rear curtilage of Norfolk House. 8 Because the site is to be developed with two different forms of dwellings, there resulted in some disagreement as to whether the differing development standards for site area and floor space ratios in the LEP for dwelling houses and residential flat buildings should be separately calculated and applied. The difficulty here arises as a result of the development taking place on a consolidated allotment. 9 In the circumstances, it seems to me that given that this is a mixed form of development, it is not possible to strictly apply these site areas and floor space ratios. Hence I accept the approach taken by Mr Rhodes who considered the development as a whole. He accepted that having a floor space ratio of 0.76:1 compared to the permitted 0.81:1 floor space ratio for residential flat buildings, and despite the floor space ratio of 0.5:1 for dwelling houses that the overall density of the proposal was reasonable and appropriate in this locality. He did not accept that the floor space ratio was indicative of an overdevelopment of the site. 10 In case Mr Rhodes's approach was wrong, the applicant provided the Court with objections under State Environment Planning Policy No 1 Development Standards ("SEPP 1"). The relevant objective of the 2C zone requires a variety of housing types, including residential flat buildings where such development does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area. The relevant objective in the Heritage LEP requires that development should not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings. 11 Taking these objectives into account, together with the objectives of the standards referred to in the SEPP 1 objections and the conclusions reached by Mr Rhodes, I accept the conclusions reached in these objections and do not find the site area and floor space ratio requirements are such as to require the refusal of the application. Were it necessary, I would have upheld these objections. 12 Dealing with the heritage significance of Norfolk House, which he agreed is of State significance, Mr Staas said that he has little concern in regard to the location and design of the proposed new residential flat building and its overall impact on the cultural significance of the house as a heritage item. More particularly he said that there would not be a significant adverse impact on the setting of the item or its perception from the public domain. He also noted that some views of Norfolk House from Church Street would be improved by the removal of the existing adjoining dwelling and the proposed separation to the new residential flat building. This would have benefits for the house in its setting. 13 His original concerns in relation to the previous proposal were in relation to the then proposed changes to the building fabric. Such changes are now no longer proposed. He concluded that the proposed development for the combined site was generally sound and that the potential impact of the proposed new residential development building on the setting and significance of the heritage item would be limited and acceptable. He did not agree that there were any impacts that would indicate a need to refuse the application. 14 In his report and his oral evidence, Mr Rhodes acknowledged that there were privacy, overshadowing and building bulk consequences resulting from proposed Units 1, 4 and 7. In this context, I note that the offending windows in these units are now to be relocated to the east side significantly reducing overlooking opportunities. Mr Rhodes did not accept that these impacts were critical to the application taking an overview of the entire development. He particularly noted the objectives of the heritage LEP and the incentive provisions associated with conservation of heritage items contained therein that need to be given appropriate weight. As he said: It is my view that the benefits that accrue to Norfolk House under the now proposed arrangements far outweigh the amenity issues arising out of the relationship between Norfolk House and the proposed residential flat building. 15 Having considered all of the evidence that has been provided to me, I agree with the conclusions reached by Mr Rhodes and Mr Staas for the reasons that they have given. I have given particularly careful considering to their evidence in relation to the proximity of proposed Units 1, 4 and 7 to Norfolk House, and whilst I accept that there will be some adverse affectation on the rear curtilage of the heritage item, this will not be such as to be determinative of the application. Moreover the fact of the conservation of this building and the benefits to the curtilage and setting at the front will more than compensate. 16 The proposal now before the Court is a result of several different designs. Whilst the applicant is to be commended for its response to the concerns expressed by the experts, it gets no credit for making these changes. Instead it is the proposal before the Court that has been considered on its own merits, and having done this, I have decided that it warrants approval subject to the conditions proffered by the council and subject to a number of relatively minor changes agreed to by the applicant. These changes were discussed during the hearing and are known to the applicant and are reflected in part by exhibit L. I will retain Exhibits A, B, C, L, 6, 7 and 3. ___________________ T A Bly Commissioner of the Court Ljr/rjs/tab 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.