Chau v Parramatta City Council [2009] NSWLEC 1363

Land and Environment Court of New South Wales

CITATION : Chau v Parramatta City Council [2009] NSWLEC 1363

APPLICANT Yiu Ping Chau PARTIES : RESPONDENT Parramatta City Council

FILE NUMBER(S) : 10432 of 2009

CORAM: Pearson C

KEY ISSUES: :- dual occupancy development non-compliance with approved plans

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta Local Environmental Plan 2001 Parramatta Development Control Plan 2005

CASES CITED: Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299

DATES OF HEARING: 21 October 2009

DATE OF JUDGMENT: 10 November 2009

APPLICANT Mr AJJ Thompson, solicitor LEGAL REPRESENTATIVES: Richie & Castellan RESPONDENT Mr P Marincowitz, solicitor DLA Philips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pearson C

10 November 2009

10432 of 2009 Yiu Ping Chau v Parramatta City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the Council) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent number DA/127/2005 for the demolition of existing structures and the construction of a two story attached dual occupancy dwelling with Torrens title subdivision, at 80 Dunlop Street Epping, Lot 14 Sec 3 DP 10048 (the site). 2 The proposed modifications include: -Reduced setback to the western boundary -Increased setback to the eastern boundary -Deletion of eaves -Changes to internal layout for the ground and first floors -Extension to western unit first-floor street facing balcony -Reduction in the sizes of two ground floor windows for the western unit -Repositioning of two windows on the eastern elevation -The family room/kitchen windows to ground floor of eastern unit -Relocation of rainwater tanks into the sub floor area below each unit; and -Amended external finishes. Background 3 The site has an area of approximately 1073.1 sq m and is located on the low southern side of Dunlop Street. The site adjoins dwelling houses on the eastern and southern and western boundaries. The land slopes from the street to the south. 4 The Council approved DA/127/2005 on 10 July 2006 subject to conditions. On 27 December 2006 a construction certificate was issued by ACE Building Approvals and construction of the development commenced in early 2007. On 31 May 2007 the Principal Certifying Authority issued a Notice of Intention to give an Order to the builder in respect of development not being constructed in accordance with the approved development consent. On 3 August 2007 the applicant lodged an application with Council pursuant to s96(2) of the Act to modify the development consent (the modification application). The modification application was notified and a total of eight written submissions and a signed petition were received. An on site meeting was held on 16 February 2008. 5 The issues raised by residents in submissions and at the on site meeting concerned the following: Certification : whether any of the building works had been certified by the appointed principal certifying authority Setbacks : the decreased side boundary setbacks would impact on privacy and would overshadow adjoining properties Privacy : the increased sizes and repositioning of windows along the side elevation would impact on privacy of adjoining properties Height : the built height of the total occupancy gives the impression of a three-storey building due to the subfloor area, particularly from the rear of the dwelling Floor space ratio : the increase to the floor space ratio of the development had resulted in an increase in overall bulk and scale Stormwater : incomplete stormwater works Safety and security : the site is not safely and securely enclosed with a security fence Health and amenity : the site toilet facilities are not connected to a sewer; and that uncleanliness on the site is resulting in the attraction of vermin Internal configuration : the proposed modification application included different internal layouts to those approved in the original development application Incorrect plans and validity of modification application : the plans submitted in support of the application did not reflect the current building works on the site Unauthorised fill : the on site detention basin contains unauthorised fill, and there is the potential to cause a landslide to adjoining properties Consideration of the modification application : whether Council should consider the modification application prior to the developer rectifying all issues on the site. 6 The Council's Development Assessment Officer prepared a planning report for consideration by council, recommending approval of the application subject to conditions. Council resolved to refuse the application for the following reasons: -The development shown on the plans lodged with the modification application would not have been approved if lodged as an original DA due to numeric non-compliance and s79C considerations -The numeric non-compliances in the modification application fail to satisfy the objectives of the relevant controls -The Statement of Environmental Effects submitted is inadequate -The application does not comply with clause 3.1 of Parramatta Development Control Plan 2005 in that the minimum side setback is less than 1.5 m -The application does not comply with clause 40 of Parramatta Local Environmental Plan 2001 in that the floor space ratio exceeds 0.6:1 -The application results in unacceptable levels of overlooking and invasion of privacy on the western and southern elevations -The application results in an unacceptable level of overshadowing on the adjoining property on the western side -The addition of the subfloor areas stated to be for installation of rainwater tanks does not comply with LEP 2001 -The plans lodged with the application are not an accurate representation of the present non-complying construction -The proposal is unacceptable in bulk and scale -The plans lodged with the application include non-compliances and breaches of the conditions of consent which do not form part of the application including the illegal construction of a retaining wall without appropriate drainage on the southern boundary and metal fencing on the southern boundary -Approval would not be in the public interest. Planning controls 7 The site is zoned Residential 2A under Parramatta Local Environmental Plan 2001 (Parramatta LEP 2001). The objectives for the zone are: (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas, or the natural and cultural heritage of the area, and (c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and (d) to provide opportunities for people to carry out a reasonable range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood, and (e) to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 8 Clause 40 of Parramatta LEP 2001 provides that the maximum floor space ratio for a dual occupancy building is 0.6:1. 9 Parramatta Development Control Plan 2005 (Parramatta DCP 2005) applies. The aims of the Parramatta DCP 2005 are set out at section 1.6: The aims of this DCP are to: -Ensure that development contributes to the quality of the natural and built environments -Encourage development that contributes to the quality of the public domain -Ensure that development is economically, socially and environmentally sustainable -Ensure future development has consideration for the needs of all members of the community -Ensure development positively responds to the qualities of the site and its context -Ensure development positively responds to the character of the surrounding area. 10 The applicable preliminary building envelope is set out in section 3.1 of Parramatta DCP 2005 and relevantly requires a minimum 15 m frontage; a maximum of two storeys and the maximum building height of 9 m; a street setback consistent with the prevailing setback along the street within the range of 5 to 9 m; rear setback of minimum 30% of length of the site; and site setback minimum 1.5 m. 11 The relevant provisions in Part 4 of Parramatta DCP 2005 are 4.2.2 Fences; 4.2.3 Building Form and Massing; 4.3.2 Visual and Acoustic Privacy; and 4.3.4 Solar Access and Cross Ventilation. The Issues 12 The issues between the parties are as follows: Objectives of planning controls : the Council contends that the proposed development as modified does not satisfy the aims and objectives of the Parramatta LEP 2001 and the numerical non-compliances do not satisfy the objectives of Parramatta DCP 2005. The applicant contends that DA127/2005 presumably met the aims and objectives of Parramatta LEP 2001 and Parramatta DCP 2005 when originally granted, and the development as modified will not be substantially different from the development has approved. Inadequate information : the Council contends that the statement of environmental effects is inadequate and the architectural drawings of the proposed development as modified do not accurately reflect the non-complying built structure on the site. The applicant contends that the modified development will be substantially the same development as previously approved. Setbacks : the Council contends that the proposed development as modified does not comply with the minimum western site setback of 1.5 m and this results in overlooking and overshadowing. The applicant contends that two windows on the western side had been reduced from 1.5 m in height to 1.0 m with increased still heights; first-floor windows to the bathroom and WC will be glazed with obscure glass; and any overlooking to the west will be minimal. The applicant further contends that the amended side boundary setback does not reduce or further impact on the provision of sunlight access to the existing dwelling on the adjoining property which will still receive solar access between 9.00 to 3.00 pm at the winter solstice consistent with section 4.3.4 of Parramatta DCP 2005. Floor space ratio : the Council contends that the proposed development as modified exceeds the permitted floor space ratio of 0.6:1 for dual occupancy developments. The applicant contends that there is no additional floor space created by the proposed modification, and alternatively if there is any additional floor space created it has no additional impact on height, bulk or scale of the building. Overlooking and overshadowing : the Council contends that the location of the proposed development as modified will result in a unacceptable levels of overlooking adjoining properties and an unacceptable loss of visual privacy to properties to the west and south of the subject site contrary to section 4.3.2 of Parramatta DCP 2005, and will result in unacceptable overshadowing of the adjoining property on the western side contrary to section 4.3.4 of Parramatta DCP 2005. The applicant contends that any overlooking or overshadowing to the west will be minimal. Bulk and scale : the Council contends that the proposed development as modified is unacceptable in terms of bulk and scale contrary to section 4.2.3 of Parramatta DCP 2005. The applicant contends that the proposed modification does not increase the height, bulk or scale of the building. Fencing : the Council contends that the metal fencing on the southern boundary is unsatisfactory as it is not compatible with the subject building, contrary to section 4.2.2 of Parramatta DCP 2005. The applicant contends that the fencing complies with clauses 2.33 and 2.34 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 . Public interest : the Council contends that the proposed development as modified is not in the public interest as it seeks approval for unsatisfactory non-compliant building works and is otherwise not in the public interest. The applicant contends that any non-compliant building works may be approved by modification of the consent ( Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299), and that it is in the public interest to approve modifications as it will result in improvements to the building and the ability of the building to interact with the biodiversity of the site. Objectors : the Council contends that in so far as the issues raised by the objectors coincide with its contentions they are matters warranting refusal of the application.