Land and Environment Court of New South Wales CITATION : Emerald Logic Pty Ltd v Parramatta City Council [2004] NSWLEC 256 APPLICANT Emerald Logic Pty Ltd PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11330 and 11331 of 2003 CORAM: Tuor C. Development Application :- Mixed use residential and commercial development Role of LEP KEY ISSUES: Residential amenity traffic overshadowing privacy height traffic LEGISLATION CITED: Parramatta Local Environmental Plan 2001 State Environmental Planning Policy No 65 CASES CITED: DATES OF HEARING: 11/05/2004 EX TEMPORE 05/12/2004 JUDGMENT DATE : APPLICANT Mr J Bingham Solicitors Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr Gough Solicitors Storey Gough JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11330 and 11331 of 2003 Tuor C 12 May 2004 EMERALD LOGIC PTY LTD Applicant v PARRAMATA CITY COUNCIL Respondent Judgment Introduction 1 This is an appeal against the deemed refusal by Parramatta City Council (the council) of two development applications for a mixed use development at 301-315 Woodville Road, Guilford (Appeal No. 11330 of 2003) and 317-319 Woodville Road, Guilford (Appeal No. 11331 of 2003). The parties agreed that the appeals should be heard together and sought consent orders from the Court. Issues 2 The issues between the council and the applicant had been resolved. The Court heard from a number of residents and had the advantage of a site visit. The concerns of the residents can be summarised as: i. General concerns about the type of development proposed for this site and other sites along Woodville Road, particularly the suitability of these sites for medium density housing, traffic impacts and the bulk and scale of development. ii. Specific concerns of adjoining and nearby residents about the impacts of this development, particularly traffic, overshadowing, privacy and height. 3 In the relation to the general concerns, the proposal must be viewed within the planning framework that exists for the site and the adjoining area. The site and other sites along Woodville Road are zoned 10 Mixed Use under Parramatta Local Environmental Plan 2001 (LEP 2001). Mixed use development of type proposed is permissible with in this zone as are a number of other uses, including dwelling houses, multi unit housing, and residential flat buildings, as well as commercial premises. 4 The zoning does not mean that existing dwelling houses must be replaced or that sites cannot be developed for this purpose, however, the zoning is likely to result in single storey houses being replaced by medium density housing. This is illustrated by the maps and spreadsheet provided by the residents showing mixed use developments proposed along Woodville Road. 5 The zoning envisages that people will live and or work in close proximity to Woodville Road, which is classified by the RTA as a State Road. There are restrictions on Woodville Road that limit parking and access to the road. The existing context of Woodville Road reflects a mixture of residential and commercial premises. The key difference between the existing character and what is envisaged under the current zoning is a change in scale and density of development. Where there are currently single dwelling houses on large blocks of land, the zoning and Development Control Plan 2001 (DCP2001) allows for larger buildings with more people. Such development will change the character of Woodville Road. It is this change that is of concern to the residents. 6 The role of the Court is not to say whether the zoning is appropriate or to stop this change from occurring. Rather it is to be satisfied that the development proposed on these sites is consistent with the change and the desired future character envisaged by the planning controls and whether, within this framework, the impacts of proposed developments are reasonable. 7 Issues relating to whether residential use along major roads is appropriate in light of health concerns and amenity issues, future traffic along Woodville Road and the appropriateness of allowing three to four storey development are issues that are appropriately addressed in the review of the zoning that Council is currently undertaking and not as part of this appeal. 8 The specific impacts of this development have been adequately addressed in the council's planning report and the joint statement prepared by Mr P Le Bas, town planner for council, Mr S Barwick, town planner and Mr M Harrison, architect and urban designer for the Applicant. I will not deal with the matters raised in these reports except for the following issues that were of key concern to the residents. Traffic 9 The main concerns in relation to traffic were that access to both developments was off Constance Street. Constance Street has a partial road closure that restricts left-hand turns into the street off Woodville Road and permits only left hand turns into Woodville Road. Consequently, traffic for both the residential component and the retail/commercial must access the driveway off Excelsior Street and travel along the length of Constance Street. The residents were concerned about the increase in traffic numbers along residential streets and parking for trucks servicing the retail/commercial development. They considered that access should be off Woodville Road. They also stated that the Traffic and Parking Assessment Report prepared by Project Planning Associates did not deal with the retail/commercial component of the development and that the use of the proposed shops was unknown. 10 The traffic study does include an estimate of vehicle trips generated by both the residential and the commercial/retail component. The traffic study states that: The additional traffic demand of 30 peak hour vehicle trips on the road system servicing the area as a consequence of the proposed development is very minor and will not significantly increase the traffic volumes on the road systems servicing the site, nor increase the level of traffic activity on the road system to a point where it becomes environmentally unacceptable. 11 The report also addresses the option of providing access off Woodville Road. It states that this is unsuitable because: · It is understood that the RTA has refused permission for access to be provided via Woodville Road. · Access from Woodville Road to any new developments is discouraged by the Parramatta Development Control Plan. · An access in Woodville Road would still require residents wishing to depart towards the north to use local residential streets by travelling around the block. 12 The development includes a parking space for trucks likely to service the retail/commercial component. A condition of approval requires that a development application be lodged for the future use of the retail/commercial component and a further condition restricts their use for any purpose that requires servicing by articulated or large rigid trucks. 13 This does not mean that there will be no increase in traffic in Constance Street but that the road system can adequately deal with that increase and that the likely impact on residents is acceptable and consistent with that contemplated by the controls. Further there was no expert evidence that contradicted the Applicant's traffic report. Privacy 14 The privacy impacts of the development were raised by the adjoining owners, Mr and Mrs Farraha at 40 and 42 Constance St (a dual occupancy development) and Mr B Benton at 321 Woodville Road, as well as other residents in the vicinity. 15 Mr Benton's house is set back 4.5m south from the common boundary with a driveway leading to his garage. The development complies with the setback requirements in DCP 2001. It is set back from Mr Benton's property at ground level 3m to the building and 2.5m to the balcony of Unit 5. All the rooms of units with windows that face Mr Benton's property are bedrooms and a kitchen. The rest of the façade is a blank side wall of the retail tenancy. These uses, the setback, the fence and the proposed planting will limit any unacceptable privacy impact from this level. 16 The other floors are set back a minimum of 3m to a maximum of 6m. Again the windows along this side are predominantly to bedrooms and bathrooms. With a balcony on level 1, a living/dining area (set back 6m) and two balconies on level 2 and a roof terrace on level 3. Conditions supplement the drawings to provide privacy devices, including opaque glass, privacy screens and planter boxes. Privacy impacts to Mr Benton's property are therefore acceptable. 17 In relation to Mr and Mrs Farraha's property, the development is set back a minimum of 13.8m. While there are balconies and living areas which face this property the minimum setback is greater than that suggested under the Residential Flat Design Code of SEPP 65 and the standards in AMCORD to achieve an acceptable level of privacy. The separation distance combined with the proposed landscaping is sufficient to prevent adverse privacy impacts. On this basis I do not consider that privacy screens or other privacy devices are necessary. 18 The other properties are sufficient distance from the development for there to be no adverse privacy impacts. Solar Access 19 In relation to solar access, both Mr Benton and Mr and Mrs Farraha were concerned that the proposal would result in overshadowing of their properties. 4.1 of DCP 2001 states: Dwellings within the development site or adjoining properties must receive a minimum of three hours sunlight in habitable rooms and at least 50% of the private open space between 9 am and 3 pm on the 21st of June. 20 The shadow diagrams indicate that the outdoor and washing line area of 42 Constance Street will be overshadowed in midwinter from about 1.30pm. However, the proposed development will not result in an increase in overshadowing before 1.30pm and the DCP control is therefore met. 21 In relation to Mr Benton's property, the shadow diagrams indicate that there will be an increase in overshadowing, but that the area of open space will still receive sunlight for a minimum of three hours to at least 50% of the area. The habitable rooms that face the development will not receive sunlight and will not comply with the standard, however, these rooms are to bedrooms. The sunroom has two windows, one of which will be affected, the other window and the living areas are orientated towards the garden. These rooms would also be overshadowed by a development of lesser height, particularly if it were closer to the boundary. While this is a negative feature of the development, of itself, it is not sufficient reason to refuse the application. 22 There will also be an increase in overshadowing to 323 Woodville Road and 39 Cleone Street, however, this complies with a the DCP requirements. 23 The development will result in increased overshadowing but the impact of this overshadowing, is not adverse and is consistent with what is acceptable under the DCP. Height 24 4.4 of DCP 2001, provides general control for the height of development. These include objectives to: d) ensure that building heights respond to the scale of the street and surrounding buildings 25 The DCP also includes the requirement that the height of new buildings: Adopts the predominant height and scale of adjoining buildings and has a similar bulk and mass to the neighbours. 26 5.7 of DCP 2001, provides specific controls for Mixed Use 10 zones, including Woodville Road. These include that: The maximum height of the building fronting the main street is three storeys. However, an additional storey may be permitted to the front of sites where they do not adversely impact on the privacy and solar access of adjoining properties. 27 The submission of Mr Gough, for the council, is that both the General and the Specific controls should be considered. The opinion of the residents is that for the development to be consistent with the height of adjoining development it should be no more than two storeys and that even three storeys would be out of character with the area. They considered the fourth storey had adverse privacy and overshadowing impacts and should not be permitted. 28 The controls in 4.4 and 5.7 are contradictory. The height of development of up to four storeys envisaged for Woodville Road does not adopt the height and scale of adjoining properties, the majority of which are single storey. However, the desired future character of Woodville Road is explicitly stated as being up to three to four storeys. 29 To resolve this conflict in the controls, it is appropriate to consider how the height of the building relates to the future character of the mixed use zone and to the existing development within the surrounding 2(b) zone. 30 The proposal is four storeys along Woodville Road, stepping down to three storeys and separated from the houses to the east by about a 14 metre landscaped strip. While the height of the proposed buildings is not single storey, there is an appropriate transition and buffer zone between the higher building along Woodville Road and the dwellings in the 2(b) zone. The building will be visible from the surrounding residential area, but this transition in heights and separation will result in a development that does not have an overwhelming bulk and scale. 31 Existing development in the Mixed Use zone in the immediate vicinity of site is generally of a low scale. However, the area is in a state of transition and the development that is likely to occur, as evidenced from the proposals currently before council, will be similar to that proposed on the subject sites. 32 As to whether the building along Woodville Road should be four storeys, as stated above, I accept that while there will be privacy and overshadowing impacts these are not adverse. The overshadowing of Mr Benton's windows would occur if the building were three storeys along Woodville Road. 33 The height of the proposal is therefore consistent with the desired future character of the area contemplated by the planning controls. 34 In relation to the other issues raised by the residents, these are adequately dealt with in the planning reports or were dealt with during the hearing and by conditions. Conclusion 35 While I understand the concerns of the residents that their area will change, I accept the evidence before me that the proposal will have an acceptable impact and is consistent with the planning framework. I acknowledge that this framework is currently under review but at this point in time it is what the application must relevantly be considered against. For the reasons stated above, I accept the consent orders sought by the parties. Orders In relation to Appeal No: 11330 or 2003 the orders by consent are that: 1. The appeal is upheld. 2. Development Applications for the demolition of the existing buildings and the erection of the mixed development containing 22 residential units and to retail shops on the premises known as 301-315 Woodville Rd., Guildford in accordance with the following plans prepared by the case and partners architects be determined by the ground of development consent subject of the conditions are set out Annexure A. 3. The exhibits may be returned, except exhibits B, D, F, K, 5 and 13. In relation to Appeal No: 11331 or 2003 the orders by consent are that: 1. The appeal is upheld. 2. Development Applications for the demolition of the existing buildings and the erection of the mixed development containing 20 residential units and to retail shops on the premises known as 317-319 Woodville Rd., Guildford in accordance with the following plans prepared by the case and partners architects be determined by the ground of development consent subject of the conditions are set out Annexure A. 3. The exhibits may be returned, except exhibits C, E, F, K, 6 and 14. ____________________ Annelise Tuor 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.