Land and Environment Court of New South Wales CITATION : Nour v Parramatta City Council [2006] NSWLEC 805 APPLICANT Sinan Nour PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11371 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- Construction of 2 storey commercial building including child care centre, building compatibility, streetscape, road capacity, parking LEGISLATION CITED: Environmental Planning and Assessment Act Parramatta Local Environmental Plan 2001 DATES OF HEARING: 15/11/2006 EX TEMPORE JUDGMENT DATE : 11/15/2006 APPLICANT Ms G Furness, barrister SOLICITORS Mathews Folbigg LEGAL REPRESENTATIVES: RESPONDENT Mr P Marinowitz, solicitor SOLICITORS Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 15 November 2006 11371 of 2005 Sinan Nour v Parramatta City Council JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication. Background 1 This appeal was lodged against council's refusal of a development application for the demolition of an existing dwelling and construction of a 2/3-storey commercial building, including a 30 place child-care centre on the ground floor at 25 Talbot Road, Guildford. 2 A number of issues were initially identified, which can be summarised as: o consistency of the proposal with the heritage context of the surrounding area, o streetscape impacts, o impact on existing vegetation, o traffic impacts in terms of the capacity of the existing road network to accommodate additional traffic generation from the development, o adequacy and arrangement of on-site parking spaces, o public interest considerations. 3 In response to these issues, the parties agreed to the appointment of Ms A McCabe as the Court-appointed expert (CAE) for planning. Also, to the appointment of Mr C Hallam as the Court-appointed expert (CAE) for traffic matters. 4 Both of these CAEs undertook an initial assessment of the proposal, which resulted in some amendments being undertaken, in response to unsatisfactory aspects of the proposal identified by the experts. 5 Consequently, the outstanding issues remaining concern the adequacy of the car parking provisions and matters raised by objectors. These matters relate to the compatibility of the commercial type development within the heritage streetscape, the suitability of its bulk and scale and potential unsatisfactory impact of additional traffic being placed onto Talbot Road. The site 6 This site at 25 Talbot Road, Guildford is described as Lot A, DP 349926. It is located on the western side of Talbot Road with a frontage of 14.7 m and total area of 802.58 sq m. The site has a fall of approximately 2.3 m from the north-western corner to the south-eastern corner. 7 There is an existing dwelling on the site, which is of a similar era and style to neighbouring buildings within Talbot Road. However the subject site adjoins the council car parking area to the south and west, which is utilised by the Guildford Road commercial area. 8 To the north, the site adjoins the "Talbot Road Precinct", which is identified as a significant Group of 1920s cottages mostly built brick, some timber and all of similar quality and all roofed with Marseilles tiles. The proposal 9 This proposal involves the demolition of the existing cottage and improvements on the site, together with some tree/vegetation removal. It then involves the construction and strata subdivision of a 2-storey commercial building over basement parking, providing a 28 (as amended) place child care centre on the ground floor and 2 offices on the first floor. Planning controls Parramatta Local Environmental Plan 2001 (LEP 2001) 10 Under this LEP the site is zoned 3A Centre Business and the proposed development is permissible with consent. The relevant parts of the LEP include: Part 1 Section 3, Part 2 General Controls for Zoned Land and Clause 40 -Floor space ratios for development. 11 The site is within the vicinity of the "Talbot Road Precinct" (which contains heritage items located at Nos 11 to 23 and 12 to 24 Talbot Road). Relevant parts of the Plan include Clause 14 dealing with Heritage and Conservation. Parramatta Development Control Plan 2001 (DCP 2001) 12 Of particular relevance in this matter are the Part 4 -General Controls for Development and Part 5.8 Commercial Development. The evidence 13 As a result of Ms McCabe's initial assessment of the proposal, she indicated conditional support for the proposal but expressed the following concerns: o the 2/3 storey building does not provide an appropriate transition (from the council's car park) to the immediately adjoining heritage buildings or those in the streetscape, o the scale, setback and landscape setting of the building is atypical of the characteristics of the streetscape, o the design of the building pays insufficient regard to the residential amenity of No 23 Talbot Road, o the building should be redesigned to include the following parameters: o setback to Talbot Road - that reflects residential, o maximum 9m height from the natural ground level – at a 2 storey scale, o a FSR that reflects the limitations on development of adjoining lands – 0.5/0.6:1, o minimum 2.5m setback from the northern boundary - a varied setback, o a rear setback consistent with adjoining residential – 30% of the length of the site or 15 % at a lesser scale, o landscaping along the northern, western and eastern boundaries, o retention boundary trees, o access points and ROW explored from council car park, o a land-use that involves lesser office space and a child-care facility with a more appropriate drop-off and pick up point and an at grade outdoor area, o a northern elevation that provides break up of a 2 storey scale when viewed from the adjoining residential area, o a contemporary design, o possible reduction in the amount car parking on-site given the location of adjoining car park. 14 Consequently, the applicant undertook a series of amendments in response to these concerns, which Ms McCabe has re-assessed in terms of the outstanding issues as follows: " Zone interface/streetscape issues : Clause 4.4.1 relates to streetscape. I note the objectives require new development to: o Compliment and conserve the visual character of the street and neighbourhood through appropriate building scale, form, detail and finish. o Reinforce or sensitively relate to existing streetscape features such as building setbacks, alignments, height, landscape/vegetation and fence design. o Optimise street address and passive surveillance by residents of the streetscape. 7.2 Clause 4.4.2 relates to building form. Key objectives include to: o Ensure bulk and scale of new development preserves and enhances neighbourhood amenity and character o Distribute building height and bulk on the site to reasonably optimise development capacity reflecting environmental constraints, and ensuring that there is no significant loss of amenity to adjacent sites, open space and public streets. o Ensure that building heights respond to scale of the street and surrounding buildings o Ensure that the maximum FSR permitted on any site does not inhibit any other objective, performance criteria, design solution or design control contained within this policy. Clause 4.4.3 relates to building design and appearance. Key objectives include: o Demonstrate how the appearance of buildings can contribute to and enhance neighbourhood and streetscape character. o Provide building facades that reinforces the established character and continuity of existing streetscape with particular regard to building pattern, material composition and articulation of individual facades. o Encourage contemporary design solutions based on design principles that recognise and make reference to the underlying elements that create the character of the area. 7.4 The character of the area is one of mixed use comprising single storey residential development of a regular setback and scale immediately adjacent to a two (2) storey commercial precinct supporting buildings on a nil setback. The two areas are separated by a Council carpark that does not support any building structure. 7.5 The subdivision pattern on both the eastern and western sides of Talbot Road is regular; with typical lot sizes of around 800m2 to 900m2 having a depth of around 54 metres. The width of the lots appears to vary slightly. 7.6 The immediately adjoining building to the north - No. 23 Talbot Road - comprises a single storey dwelling set back approximately 10.5 metres from the Talbot Road frontage. It is setback from the common boundary with No. 25 Talbot Road being its southern boundary by approximately 1.9 metres. The length of wall along the southern boundary is some 10.7 metres. 7.7 The gutter line of No. 23 Talbot Road is at RL 32.2 AHD and the ridge height is at RL 34.36. The gutter line of No. 21 Talbot Road is RL 32.64. 7.8 The existing dwelling at No. 25 Talbot Road is set back 10.7 metre. The top RL of the existing dwelling is not shown on survey but is of a similar scale to No. 23. 7.9 The building at 25 Talbot Road like all buildings on the western side of Talbot Road is located closer to the southern boundary than the northern boundary. 7.10 There is no survey information for buildings on the eastern side of Talbot Road. 7.11 There is a consistency of setback and scale on both the eastern and western side of Talbot Road. 7.12 The subject site is zoned 3A "Centre Business" where sites immediately opposite to the east and to the north are zone 2B "Residential". I note that the adjoining carpark lands to the west and south of the site are also zoned 3A "Centre Business". 7.13 I agree that the site does constitute a transition point between the two zones. Accordingly any building proposed on this site needs to provide an appropriate transition. 7.14 I note that the carpark to the south to some extent serves this purpose and that any development on the subject site should reflect the key elements of the residential zone and have regard to the heritage significance of the area. 7.15 I note that Project Venture Developments vs. Pittwater Council 2005 NSW LEC 191 identified the key elements of urban character as building height, setbacks and landscape. 7.16 The subject site and adjoining site support vegetation along their western boundaries. The subject proposal seeks removal of a number of trees. 7.17 The subject site contains a number of trees that contribute to the greening of the area. There are no trees along Talbot Road within the road reserve. Landscaping is not an element of the "streetscape" appearance of the dwellings. 7.18 The proposed development is now: o setback for approximately 2/3 of the frontage 5m from Talbot Road and the section closest to No. 23, 10m from Talbot Road o setback 1 m and 2.5m at first floor from the northern boundary common to No. 23 Talbot Road o located on a nil setback to the southern boundary o setback 11.7m from the rear at ground floor, 10.3m to the ramp and 16.53m at the first floor. 7.19 The building is setback for most of the first floor from Talbot Road by approximately 9.65 metres. A terrace from the first floor level is setback 5 metres from Talbot Road. 7.20 The parapet level of the building is RL 35.930 metres, some 1.57 metres higher than the ridge line of No. 23 Talbot Road and some 3.73 metres higher than the gutter line. 7.21 The height of the building when viewed from the rear yard of No. 23 Talbot Road - at approximately RL 35.930 / 35.215 will appear as a 7.42 metres high building - approximately a two (2) storey building. 7.22 Controls for commercial development are contained under the PLEP 2001 and at clause 5.8 of Parramatta DCP 2001. Key controls include: o FSR 2.1 (cl 40(1 A) PLEP 2001) o maximum height of 3 storeys o setbacks minimum of 900mm where development abuts residential property o nil setback to the street. 7.23 It is noted that the provisions of DCP 2001 continue to apply to the subject development as it was lodged prior to Parramatta DCP 2005 coming into effect - 14 December 2005. The savings provision at clause 1.4 has this effect. 7.24 The following controls apply to future development in the 3A zone under Parramatta DCP o 3 storey height o Nil street setback o The side setback is dependant on impact on amenity o The rear setback is dependent on impact on amenity 7.25 The sites to the north are zoned 2B Residential under Parramatta LEP 2001. Dwelling houses, dual occupancies, granny flats and multi-unit dwellings are permitted development. 7.26 A FSR of 0.5:1 applies to dwelling houses and 0.6:1 to dual occupancies (Clause 40 PLEP 2001). A maximum two (2) storey height is provided for at clause 39 of PLEP 2001. 7.27 The adjoining sites are items of environmental heritage. 7.28 The controls under the Parramatta DCP 2001 for single dwellings are: o maximum height two (2) storeys o minimum side setback of 900 mm - increased to provide for solar access o setback to the street - consistent with adjoining o rear setback 30% of the length of the site 7.29 Relevant controls for a dwelling under Parramatta DCP 2005 at clause 3.1 would apply to a future development. These controls include: o a maximum of two (2) storey with a maximum height of (9m) o front setback consistent with streetscape (5-9m) o a rear setback comprising 30% of the length of site o a side setback of 900mm 7.30 Relevant controls for a dual occupancy under Parramatta DCP 2005 are: o two (2) storey or one (1) storey where on land comprising heritage item o front setback consistent with the streetscape (5-9m) o rear setback 15% of length of site o a side setback of 1.5 m 7.31 The difference between the controls is notable. I have previously stated that strict numerical compliance with the applicable controls on the 3A zoned site will not provide an appropriate development that respects the: o constraints applying to the adjoining residential site, or o residential scale and form of the adjoining development and that in the streetscape. 7.32 The adjoining sites are appropriately constrained because of their heritage status. This suggests that additional development on these sites is more than likely to be located at the rear of the dwellings - perhaps as single storey structures - subservient to the existing dwellings. Some two (2) storey development may be contemplated - but as a more discreet element. 7.33 I would consider that given the heritage status of the adjoining and adjacent dwellings that the type of development potential on the site would be either a dwelling house or dual occupancy. 7.34 I have roughly calculated the FSR at 0.82:1 which is less than the 2:1 permitted (some scaling from plan). 7.35 The scale of the proposed development now reads as two (2) storeys and has been stepped down the site. The rear terrace is now within 1.15 metres of ground level. 7.36 A two (2) storey development is an acceptable form of development but with adequate setbacks to north, east and western boundaries and not elevated from ground level. 7.37 I am of the view that: o the increase in setbacks to Talbot Road at ground and first floor level o the increased setback at first floor level from the northern boundary o the increase in setback from the rear at particularly first floor level. provides a better relationship to Talbot Road as existing and provides a development that generally reflects the likely alignments and scale of future residential development to the north. 7.38 While providing for a different typology of building it reflects the elements of urban character of the street in terms of building height, setback and landscape. 7.39 The building height is more consistent with that of a two (2) storey building. 7.40 The setback to Talbot Road has provided an opportunity for greater landscaping and retention of the existing Jacaranda Tree. 7.41 The setbacks provided are more consistent with those controls outlined for residential development. 7.42 I am satisfied that the development as further amended: o provides an appropriate transition o has sufficient regard to the adjoining zone o is sufficiently sensitive to the character of Talbot Road. 7.43 The building provides closer, though not strict compliance with the residential controls contained in Parramatta DCP 2005 - which is an appropriate benchmark to test the development. Trees/Landscaping issues 15 Ms McCabe concluded that the issue concerning tree retention and suitable landscaping replacement can be covered by appropriate conditions of consent. 16 In respect of the planning issues raised, Ms McCabe's overall conclusion is that the amended proposal merits conditional consent because the building provides an appropriate transition to the immediately adjoining residential and heritage buildings and the building height, setback and potential landscape better reflect the existing and future character of the area. 17 The other substantive issue concerns traffic and parking issues, which have been assessed by Mr Hallam. He reviewed the traffic generation assessment by the applicant's consultant on the basis of the 28 place child-care centre in terms of the local road context, including the effect of the nearby commercial centre and car park entrance. His evaluation is as follows: One measure of the amenity and safety of a residential street is its environmental capacity. Talbot Road is not quite a purely local residential street because it is on the edge of the commercial area. Its southern end has commercial uses, including a service station. North of the site, it is characterised by single detached dwellings. It intersects with Mountford Avenue in a cross junction, where Talbot Road traffic is subject to Stop sign controls. The RTA Guide to Traffic Generating Developments sets out guidelines for environmental capacity. These are shown in Table 2.1. TABLE 2.1 Environmental Capacity Performance Standards on Residential Streets Road class Road type Max. Speed Max.peak hour flow (kmlhr) (veh/hr) Local Access way 25 100 Street 40 200 environmental goal 40 300 maximum Collector Street 50 300 environmental goal 50 500 maximum If 50% of the traffic from the subject site arrived from or travelled to Talbot Road North, the additional traffic would be 14 veh/hr in the morning peak hour and 13 veh/hr in the afternoon peak hour. Added to the existing afternoon peak two-way flow of 129 veh/hr, the projected peak flow would be 142 veh/hr, a level less than the 200 veh/hr "environmental goal" for a local residential street. I conclude that the traffic impact on the environmental capacity of Talbot Road would be satisfactory. Turning to the junction of Talbot Road with the Council car park entrance, this junction was assessed using the INTANAL model, for the current PM peak hour flows and for the projected situation with the development traffic. The current level of service is A, the highest level. This would not change with the additional traffic. The degree of saturation and average delays are also not projected to change, remaining at very satisfactory levels. As seen in Figure 3, the traffic flows are really quite low in this area. I conclude that the external traffic impact of the additional traffic will be satisfactory, and hence that Issue 6 is not a valid reason to refuse development consent. 18 With regard then to the on-site parking arrangements and drop-off/pick-up arrangements for the child care centre, Mr Hallam raised some concerns arising out of the initial building proposal about safety and efficiency and the possibility of imposing parking restrictions along part of Talbot Road. He also expressed some concerns about undesirable aspects of the basement carpark layout, including the location of the car "stackers". 19 The applicant responded to these concerns in the amended plans by the incorporation of the tandem car stackers and other parking spaces in the position suggested by Mr Hallam. 20 In respect of the quantum and allocation of parking, Mr Hallam concludes that the parking issue is satisfactorily resolved following basis: " Quantum and Allocation of Parking 21 The Parramatta DCP requires 7 spaces for the child care centre (28 children) and 6 spaces for the commercial tenants (294 sq m.) With the child care centre, for a typical age distribution of children and using standard staffing requirements (0-2 years, one staff per 5 children, 2-3 years, one staff per 8 children and 3-5 years, one staff per 10 children), I would expect there to be 4 staff. With the close proximity of the site to Guildford Railway Station, I would expect about 50% of staff would drive, giving a staff parking need of 2 spaces. In theory, the closed-in end spaces in the horizontally stacked pairs could be labelled for staff, leaving the open end spaces available for parents. However these end spaces are a little awkward to access, requiring the driver driving down the ramp to turn towards the southern side of the building and then reverse back to the West, and hence enter the parking spaces in a forwards direction. 22 Looking at the quantum of parking for one moment, the requirement for 6 commercial tenant spaces is met. Some 5 spaces are proposed to be allocated to the child care centre. In addition there is the disabled space. Unless it was specifically required for a commercial tenant, I suggest that this space be included in the count for the child care centre, taking the total to 6 spaces, or one space short of the DCP requirement. 23 With the location of the child care centre in close proximity to the railway station, there would be scope for parents to leave their child at the site while on their way to work. If they would normally walk or use a bus, there would be no parking demand. If they would normally park near the station, this pattern could remain." Conclusions 24 Having considered the evidence, the submissions and undertaken a view I am satisfied that this amended proposal merits conditional consent. The amendments are significant because the bulk, scale and height of the proposal have been reduced to achieve a satisfactory transition from the nearby commercial buildings/car park to the adjoining dwellings. The increased building setback also allows more front landscaping which assists with the transition. The amended proposal then demonstrates comfortable compliance with the relevant numerical controls in this business zone. 25 I accept Ms McCabes evidence that the transition of the building is important because of the somewhat unusual situation of the subject property being located between the council car park and adjoining residential conservation area. As such, the subject property has a different zoning (Centre Business 3A) to the adjoining residential dwelling (Residential 2B) and the planning controls therefore allow commercial-type development rather than residential dwellings on the site. 26 On this basis, I give diminished weight to the residents objections that the proposal is not compatible with the neighbouring dwelling houses in streetscape covered by the conservation controls, considering that this form of commercial development is envisaged on the site. Therefore I am satisfied to rely on Ms McCabe's (CAE) opinion that the proposal adequately satisfies the relevant planning controls to merit consent. 27 With regard to the other substantive issue of traffic and parking, I rely on Mr Hallam's assessment that the incremental changes arising out of the development, considered in the context of the layout of Talbot Road, shows that it has adequate capacity to satisfy the 'environmental road capacity' criteria specified by the RTA. That is not say that some queueing or delays will not be experienced at times but this is not sufficient to warrant rejection of the amended proposal, based on Mr Hallam's evidence. In the ultimate, I rely on Mr Hallam's evidence that the parking and access arrangements are satisfactory for approval. 28 Notwithstanding this, I accept that additional inconvenience is experienced at times when larger delivery vehicles access the council car park from Talbot Road, to service the shops. However the existing traffic control signs restrict this movement and this problem is a matter of enforcement by the relevant authorities. 29 Another matter raised by the objectors concerns the arrangements for garbage collection so that any disamenity is minimised. In this regard I am satisfied that the revised basement garbage recycling area, together with conditions requiring garbage collection between 10 a.m. and 3 p.m. - Monday to Friday, addresses this to a reasonable extent. 30 For these reasons, the following orders are made. Court orders 1. The appeal is upheld. 2. Development consent is granted to DA 1270/2004, for the demolition of existing structures on the site, tree removal, construction of a two-storey office building of the basement parking and providing a 28 child care centre on the ground floor and 2 office units on the first floor, together with strata subdivision of the development, subject to the conditions in Annexure A. 3. The exhibits may be returned except for 1, 3, 6, 7, G and H. _____________________ R Hussey 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.