Land and Environment Court of New South Wales CITATION : Environa Studio v Parramatta CC [2006] NSWLEC 251 APPLICANT Environa Studio PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11357 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Demolition of dwelling houses, removal of trees, construction of multi-unit housing development, neighbour amenity, characte of neighbourhood, traffic and parking. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta Local Environmental Plan 2001 State Environmental Planning Policy No. 1 - Development Standards CASES CITED: Deller Homes v Sutherland 2004 NSWLEC 66 DATES OF HEARING: 08/05/2006 EX TEMPORE JUDGMENT DATE : 05/08/2006 APPLICANT Ms J. Reid, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr Pickup, solicitor instructed by Storey & Gough Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 8 May 2006 11357 of 2005 Environa Studio v Parramatta City Council This decision was given extemporaneously on site. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to Development Application No. 1427/2004 which is for the demolition of two existing dwelling houses, the removal of a number of trees and the construction of a multi-unit housing development containing six town houses with a basement carpark. The basement carpark contains 13 carparking spaces. The townhouses are contained effectively within two buildings above the basement carpark and are each essentially two storeys in height. The site has a north-east/south-west orientation and the development contains private courtyards for each of the town houses on the north eastern side of each of the dwellings. 2 The site comprises Nos. 64-66 Moffatts Drive, Dundas being lots 545 and 546 DP 36692. It is somewhat irregular in shape with the front boundary having a length of 30.5 m, the rear boundary measuring 37.6 m and the side boundaries having a length of 42.7 m with an area of 1448.4 sq m. It has a slope of approximately 4.5 m from the front to the rear where it adjoins an area of bushland, which is included in an open space zone. 3 The locality generally comprises predominately older style single dwellings with some recent dual occupancies. 4 The site is included in the Residential 2(b) zone under Parramatta Local Environmental Plan 2001 ("the LEP") in which zone the proposal is permissible with development consent. 5 Clause 16(3) of the LEP requires that consent must not be granted unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone applicable to the land the subject of the development application. There are three zone objectives relevant to this form of development in the 2(b) zone: (a) To enhance the amenity and the characteristics of the established residential area; and (b) To encourage re-development of low density housing forms including dual occupancies and multi-unit housing where such re-development does not compromise the amenity of the surrounding residential areas or the natural or cultural heritage of the area; and (c) To ensure building form including that of alterations and additions is in character with the surrounding built environment. 6 Relevantly applicable developments standards in the LEP are contained in cl. 39 and 40. Clause 39 relevantly sets a maximum height of 2 storeys and cl 40 relevantly sets a maximum floor space ratio of 0.6:1. It was not in dispute that the proposal complies with the floor space ratio having a floor space ratio of something less than 0.54:1. 7 It seems that the proposal in its present configuration exceeds the 2-storey height limit because the attics in the roof space have a mansard window which exceeds the 1.5 m dormer window width included in the definition of attic room. Because the attics in this building do not comply with the definition they are included as a storey and hence the building is 3-storeys. In this regard and in my opinion this is a minor technical non-compliance and for the purposes of the LEP I am satisfied that the proposal meets essence of the requirement but because there is a non-compliance and objection under State Environmental Planning Policy No. 1 - Development Standard ("SEPP 1") issues has been provided and I accept the conclusions reached in that objection and find that there is no determinative issue in relation to building height in this matter and as a consequence I am satisfied that both of the objectives of the two developments standards in the LEP are met by the proposal. 8 Also applicable to the application is Parramatta Development Control Plan ("the DCP") which contains a number of relevantly applicable standards including carparking, building height and setbacks. These standards were the subject of some concerns by the Council and I shall return to them shortly. The DCP also contains a number of other controls including landscape requirements and these are met by the proposal. 9 The Court was assisted in its deliberations by Mr S. McMahon a consultant town planner, the parties' joint expert who was appointed by the Court. 10 The application was notified and about five objections were received although there was no objection from the immediate neighbours to the subject property. Matters of concern raised in those objections include: non-compliance with the various council planning controls; there are no other town house developments in this locality; approval of this proposal would result in fundamental and unacceptable changes to the character of the area; and traffic congestion and overflow carparking in the street which is likely to adversely affect the character of the area. 11 Mr D. Smyth of No. 38 Tilly Street gave evidence at the hearing explaining in some detail his concerns and those of his partner. Those concerns comprise; overdevelopment of the site and non-compliance with council standards; there are no multi-unit townhouses in the neighbourhood and the proposal would thus be incongruent and have a major impact on streetscape; and the replacement of two houses with six houses would create an intrusion on all surrounding properties. He disagreed with the approach taken by the Court-appointed expert as to how the locality should appear in the future and that the proposed development would be too intensive by comparison with the character of the area as it presently is. 12 The original Statement of Issues contains 14 different issues which were all dealt with by Mr McMahon who concluded that there were a number of minor matters that could be resolved to improve the design but despite those matters and having taken into account the 14 issues raised by the council the proposal was appropriate and suitable for approval. 13 It was pressed upon the Court by the respondent that the non-compliances with the controls in the DCP and the failure to appropriately respond to the objectives of the 2(b) zone were fundamental and warrant refusal of the application. However, I have not been persuaded that that should be the outcome of the application. Instead I agree with the examination of the issues as conducted by Mr McMahon and for the reasons that he gives I do not find that the issues as pressed by the respondent attract any determinative weight. 14 In relation to the objectives of the zone and particularly in the light of cl 16(3) of the LEP there is a fundamental inconsistency within those objectives. On the one hand they seek to encourage re-development of low density housing forms and yet an the other they seeking to enhance the characteristics of the existing residential area and ensure that building form is in character with the surrounding built environment. However, the proper interpretation of those objectives must take into account the fact that development of the kind here proposed is permissible with development consent at the height and density here proposed. I thus give greater weight to that aspect of the zone objective that provides that this form of development is to be encouraged. In this context I note what the Senior Commissioner said in Deller Homes v Sutherland 2004 NSWLEC 66 at paragraph 10: On what planning principle does one assess a proposal's impact on the streetscape in a street that has been zoned for re-development? I have adopted the principle that in a street that council has identified for transformation the scale of the existing development is of secondary importance. The appropriate scale of development is largely dictated by the controls applying to the area's redevelopment. 15 In this context I acknowledge and accept what Mr McMahon said in relation to the character of this area when he said that the locality is showing early evidence of undergoing a planned transition and this together with what the zone permits leads me to the conclusion that this proposed development would be consistent with the objectives of the zone. 16 I have therefore decided that: 1. The appeal is upheld. 2. Development Application No. 1427/04 for the demolition of existing buildings and the construction of two/three storey multi-unit housing development at 64 – 66 Moffatts Drive, Dundas, is determined by the granting of development consent subject to the conditions in Annexure 'A' hereto. 3. Exhibits 1, 3, A and C are retained ___________________ T A Bly Commissioner of the Court ljr 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.