Land and Environment Court of New South Wales CITATION : Nicholas v Parramatta City Council [2009] NSWLEC 1345 APPLICANT Louis Nicholas PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10043 of 2009 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of existing structures and the construction of two three-storey commercial buildings - traffic - heritage - noise - council concerns addressed by conditions - resident objections Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Parramatta Local Environmental Plan 2001 Parramatta Local Environmental Plan 1996 (Heritage and Conservation) DATES OF HEARING: 10 September 2009 EX TEMPORE JUDGMENT DATE : 10 September 2009 APPLICANT Mr I Hemmings, barrister SOLICITORS Hunt & Hunt LEGAL REPRESENTATIVES: RESPONDENT Mr I Woodward, solicitor SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 10 September 2009 10043 of 2009 Louis Nicholas v Parramatta City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of development application DA 174/2007 by Parramatta City Council (the council) for the demolition of existing structures and the construction of a three-storey commercial building consisting of a motor showroom over two levels of basement car parking and a three-storey commercial building containing a mechanical workshop, auto retail store, café and two levels of commercial suites over one level of basement parking. This building contains a defined fourth-storey but is described as a mezzanine level for the auto retail store and café areas on the ground floor. The site 2 The site consists of an L-shaped allotment generally known as 17-21 Woodville Road and 2-4 Milton Street Granville. The site is an amalgam of three lots known as Lot 100 in DP 1013005, Lot 1 in DP 743270 and Lot 2 in DP 210565. The site has an area of approximately 2,237 m sq and is located on the eastern side of Woodville Road with frontages to Halsall Street, Milton Street and Woodville Road. 3 Existing improvements include a car sales yard with frontage to Woodville Road and Halsall Street and a two-storey mechanical repair workshop with frontage to Halsall Street and Milton Street. A laneway access from Railway Parade runs through the centre of the street block bounded by Halsall Street, Milton Street, Railway Parade and Woodville Road. The site shares a side boundary with 15 Woodville Road, which contains a single storey heritage listed cottage and 136 Railway Parade, which contains a two storey commercial building. Both adjoining allotments have a similar commercial zoning to the site. Relevant planning controls 4 The site is zoned Centre Business 3(a) under Parramatta Local Environmental Plan 2001 (LEP 2001) and the uses proposed in the application are permissible within this zone. The relevant clauses are cl 16 - Zone objectives and cl 40 - Floor space ratio (FSR). 5 Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (LEP 1996) applies to the properties at 9, 11 and 15 Woodville Road. These properties are listed as heritage items of local significance under LEP 1996. The relevant clauses are cl 11 - Protection of heritage items, heritage conservation areas and relics and cl 14 - Development affecting a heritage item or heritage conservation area. 6 Parramatta Development Control Plan 2005 (DCP 2005) applies. The relevant parts are pt 3.0 - Preliminary Building Envelope and pt 4.0 - General Principles of Development. 7 Parramatta Heritage Development Control Plan 2001 (DCP 2001) applies. The relevant parts are pt 3.2 - General Principles and pt 3.5 - New Buildings. The council's contentions 8 The council's Statement of Facts and Contentions identifies the following contentions: 1. building form and massing, 2. heritage impacts, 3. building façade and articulation, 4. height, 5. acoustic amenity, 6. traffic, 7. amenity impacts, including loss of privacy and noise and odours, 8. lack of energy efficiency, and 9. size and location of outdoor dining area and potential impact on pedestrian traffic. 9 The council's Statement of Facts and Contentions however states that all contentions can be addressed through conditions of consent. The resident's evidence 10 The satisfaction of the council's contentions through conditions of consent was not accepted by a number of local residents, particularly the occupants of 15 Woodville Road. Ms Mary Sidiropoulos, Mr Harry Sidiropoulos and Mr Perry Sidiropoulos provided evidence to the Court opposing the development on the contentions identified by the council. They provided oral evidence together with written submissions. 11 Mr Warren Fox also provided oral evidence opposing the development. A number of further submissions were tendered together with other submissions provided to the council during the advertising of the development. Findings 12 The proposed development has evolved over the course of the consideration by the Court and while issues were originally raised over heritage, acoustic and traffic matters; these issues were ultimately resolved to the satisfaction of the independent experts commissioned by the council. I note that the officers of the council also recommended the proposed development for approval. 13 The residents of 15 Woodville Road have clearly spent a considerable time reviewing the evidence of the experts and raising a large number of issues over their conclusions. I have no doubt that the concerns of the residents are genuinely felt but these concerns must be tested against appropriate standards for matters such as traffic generation and noise. These tests found the proposal to be acceptable. 14 Having an understanding of the residents concerns and having read the joint reports of the expert witnesses, I do not propose to address each of their concerns as I am satisfied that the conclusions of the experts are sound and appropriate and should be preferred above the concerns of the residents. Importantly, the experts have an obligation to the Court to provide impartial evidence. The fact that there was agreement between the experts of like disciplines supports the suitability of the development. I am satisfied that the experts have properly addressed the matters raised by the residents that are significant and relevant to the consideration of the application. 15 In finding that the proposal is acceptable, it must be remembered that the proposed development is permissible within the 3(a) zone. This zone has the following relevant objectives: (a) to encourage appropriate business activities that contribute to sustainable economic growth and employment opportunities in the area and provide commercial services to the City of Parramatta, and (b) to promote the vitality of commercial centres by permitting a range of retail commercial, professional and other appropriate land uses that support and promote the business centre, and. 16 The zone is a commercial zone and the objectives encourage and promote appropriate forms and types of commercial development. The three heritage items identified in LEP 1996 have a similar 3(a) zoning, but are used for solely for residential purposes. Clearly, the potential exists for conflict between the residential and commercial land uses notwithstanding their rights to both exist on their respective properties. It would seem that for the two different land uses to co-exist there must be a realistic understanding of the rights of each of the land uses to exist despite the almost directly opposing interests and desires of the occupiers of the respective properties. At a minimum, it would seem that the commercial operations should have regard to the existing residential development in terms of its form and operation with the view to minimise any impacts and conversely, any residential use cannot expect the same level of residential amenity as it would in a residentially zoned area. I am satisfied that the proposed development achieves the aim of minimising any impacts on the adjoining residential properties. 17 As part of minimising any impacts, compliance with the relevant planning controls has added importance. When compared to the relevant planning controls, the proposed development complies with the FSR requirements being less than the 2:1 requirement in cl 40 of LEP 2001. The height requirement in cl 3.2 provides for a maximum of three-storeys but with no overall height limit. There can be no doubt that the absence of an overall height limit was a conscious decision of the drafter of the controls for the 3(a) zone as other forms of development have both a storey and overall height control. The proposed development does not satisfy the three-storey height control because of the inclusion of an internal floor. It was categorised by the applicant as a mezzanine floor but it was accepted that it constituted a storey for the purposes of DCP 2005. The breach of the storey requirement was a matter raised by residents, however, I am not satisfied that it would be a reason for refusal given the lack of an overall height control, the satisfaction of the FSR requirements and the form of the building is largely as contemplated by the council's planning controls for the 3(a) zone. 18 On potential heritage impacts, I am satisfied that sufficient regard has been given to the physical relationship of the proposal and the adjoining heritage listed properties through the amended design. . 19 In my view, there are no requirements in LEP 2001, LEP 1996, DCP 2005 or DCP 2001 that would support the refusal of the application. Conditions 20 The conditions were generally agreed on however there was dispute of the different components of the application. Mr Woodward, for the council, submitted the application only sought generic approval of the uses and that a separate development application was required for occupation and use. Mr Woodward submitted that the conditions did not specify any hours of operation for this reason and that any hours of operation would need to be readvertised. Mr Hemmings, for the applicant, acknowledged that notations were shown on the plans that stated that a separate development application was required for occupation and use, however the comprehensive consideration of the issues raised by the residents had refined the application to the point where only matter requiring attention was the hours of operation. In any event, Mr Hemmings submitted that the use of the different components of the development is authorised through s 81A(1) of the Environmental Planning and Assessment Act. I did not understand Mr Woodward to disagree. 21 Mr Hemmings proposes new condition 18A, which states the hours of operation as: o Motor showroom - Monday to Friday 8am to 7pm, Saturday Sunday 9am to 5pm; o Mechanical workshop - Monday to Friday 7.30am to 6pm, Saturday 7.30 to 12 noon; o Café - Monday to Friday 8am to 6pm and Saturday 7.30am to 3pm. 22 This condition was put to a number of residents when giving their oral evidence, however, they preferred more limited hours although they did not give a specific preference for the operating hours. 23 I note that the potentially noisier workshop use has the most restricted hours and when combined with the conditions on use and noise, I am satisfied that the hours are acceptable. The motor show room and café operating hours are also acceptable. I note the applicant's agreement that the office uses are appropriately dealt with through a separate development application. A consequential change is also required to condition A to address this change. 24 I am satisfied that the hours proposed by condition 18A are reasonable given the 3(a) zoning of the site and the conditions on use and noise. Orders 25 The Orders of the Court are: 1. The appeal is upheld. 2. DA 174/2007 for the demolition of existing structures and the construction of a three-storey commercial building is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit A. _________________________ G T Brown 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.