Land and Environment Court of New South Wales CITATION : B H Constructions v Parramatta City Council [2007] NSWLEC 110 APPLICANT B H Constructions PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11181 of 2005 CORAM: Bly C KEY ISSUES: Development Consent :- Modification to development apllication, unlawful construction, streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979; s 96 Parramatta Local Environmental Plan 2001 CASES CITED: B & H Constructions v Parramatta City Council [2006] NSWLEC 204 DATES OF HEARING: 12-13/12/2006 and 24-25/01/2007 Orders issued on: 25/01/2007 DATE OF JUDGMENT: 8 March 2007 APPLICANT Mr I Hemmings, barrister Instructed by: Mr C Gough, solicitor Of: Storey & Gough LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, SC Instructed by: Mr T O'Connor, solicitor Of: Houston, Dearn O'Connor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 25 January 2007 11181 of 2005 B & H Constructions v Parramatta City Council JUDGMENT Introduction 1 This appeal relates to an application under s 96 of the Environmental Planning and Assessment Act 1979 ("the application") to modify Development Consent No. 923/2003 ("the consent") which is for a multiunit housing development at 718-722 Victoria Road, Ermington ("the site"). 2 The 3726 sq m site is situated on the corner of Fitzgerald Road and Victoria Road. Surrounding residential development includes a mixture of housing forms with adjoining development comprising detached houses. 3 The consent, which was issued on 31 December 2002, involves the demolition of three dwelling houses and the construction of a multi-unit housing development containing 22 dwellings above a basement car park. The building has now been constructed and there is no dispute that it is not in compliance with the consent even taking into account a number of inconsistencies within the plans associated with the consent. Proposed modifications 4 The proposed modifications to the consent for which approval is now sought include various elements of the existing building that do not comply with the consent and which are to be retained. Significantly there are also proposed a number of alterations to be made to the building that are not reflected in the consent, with such alterations being intended to make the building more responsive to the streetscape. There are numerous other design and detail changes proposed which are to rectify various matters of concern to the council. 5 There have been two previous s 96 applications for this development. The first in 2004 was refused by the council in February 2005. The second was lodged on 13 May 2005 and an appeal was subsequently filed on the basis of the deemed refusal of that application. That appeal B & H Constructions v Parramatta City Council [2006] NSWLEC 204 was heard by Commissioner Tuor and subsequently dismissed on 24 April 2006. 6 In her judgement Commissioner Tuor deals with the history and details of the various applications at length and the applicable statutory planning provisions and these matters do not need to be repeated. Advertising and council's decision 7 The application was advertised and some six submissions objecting to the proposed changes were received by the council. The main concerns raised in these objections include loss of privacy for neighbouring properties; the altered building, including changes to the landscaping, will have a stark three-storey appearance; the removal of the water feature and the use of planter boxes results in an unsatisfactory landscaping arrangement. Some of these matters were explained in detail by those residents who attended the site inspection when the hearing began on-site. 8 The application was refused by Notice of Determination dated 22 September 2006 for reasons including non-compliance with the applicable zone objectives; exceedence of the floor space ratio and height restrictions in the LEP; significant adverse changes to the visual appearance of the development; various non-compliances with the DCP; and the proposed development would not be in the public interest. The issues 9 The Statement of Issues dated 26 Oct 2006 contains 11 separate issues. Issues 1-5 in essence involve the streetscape presentation of the building to Fitzgerald and Victoria Roads. Issue 10 deals with plans but was not pressed. Issues 6, 7 and 8 involve private and communal open space; balcony sizes; and access for people with disabilities. Issue 9, which relates to the access driveway, was not pressed as a result of the expert engineering evidence and changes to the design. 10 Having considered the court-appointed urban design expert's evidence the council's main issue remained the streetscape presentation of the building to Fitzgerald and Victoria Roads. 11 In these circumstances it is unnecessary for me to consider the provisions of the planning controls in any detail other than to recognise that the site is zoned Residential 2(b) under Parramatta Local Environmental Plan 2001 whereby multi-unit housing is permissible with development consent. The evidence 12 On behalf of the respondent Council expert evidence was provided by: o Ms K Lafferty - town planner o Ms R Barretto - traffic engineer 13 On behalf of the applicant expert evidence was given by: o Mr S Harding-town planner o Mr L Marshall-traffic engineer 14 Mr B Newbold was appointed by the Court to provide urban design and town-planning evidence. Changes to the application 15 In response to the conclusions reached by Tuor C and more recent recommendations made by Mr Newbold a number of changes have been made to the proposal. These include significant changes to the facades of the buildings especially their presentation in the streetscape. 16 With a view to resolving the urban design issues, during the hearing on 13 December 2006, the parties agreed to a Schedule of Changes to Plans [Exhibit 8]. The Court agreed with these changes. Mr Newbold's comments 17 On 3 January 2007 Mr Newbold provided comments [Exhibit 6] on the changes to the plans prepared as a result of this schedule. He continues to have some concerns regarding the quality of documentation and the retention of some elements of the building, particularly the parapet/balcony to unit 8. He nevertheless concluded that the proposed amendments would be consistent with the changes in the schedule. Court's decision 18 Having reviewed the final plans in the light of the evidence of Mr Newbold I have decided that the proposed modifications to the existing building as depicted in the final plans [Exhibit 4] and subject to the agreed conditions [Exhibit L] will result in a development that will, in streetscape terms be satisfactory. Whilst I agree with Mr Newbold in relation to his remaining concern I do not accept that this concern is sufficient to warrant the refusal of the application in its present form. 19 In reaching this conclusion I have also considered the matters of concern to the neighbours and have not been persuaded that these concerns are such as to require any further changes to the development. 20 I have therefore decided to uphold the appeal and modify Development Consent No. 923/2003 for the multi-unit housing development at 718-722 Victoria Road, Ermington. ___________________ T A Bly 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.