Land and Environment Court New South Wales Medium Neutral Citation: Bris v Parramatta City Council [2012] NSWLEC 1046 Hearing dates: 12 February 2012 Decision date: 13 February 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld. 2. Development Application No. DA/299/2011 for the consolidation, demolition of all improvements and construction of 2 x 2 storey buildings containing 9 dwellings over basement car parking with strata subdivision at 55-57 Belmore Street, Parramatta is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A and 6. Catchwords: DEVELOPMENT APPLICATION: demolition of all improvements and construction of 2 x 2 storey buildings containing 10 dwellings over basement car parking with strata subdivision - weight to be given to draft LEP - matters raised by objectors Legislation Cited: Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2011 Parramatta Local Environmental Plan 2001 Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 Category: Principal judgment Parties: Maria Bris (Applicant) Parramatta City Council (Respondent) Representation: Mr I Hemmings, barrister (Applicant) Mr C Drury, solicitor (Respondent) Conomos Legal (Applicant) Sparke Helmore (Respondent) File Number(s): 10867 of 2011 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of Development Application No. DA/299/2011 for the consolidation, demolition of all improvements and construction of 2 x 2 storey buildings containing 9 dwellings over basement car parking with strata subdivision at 55-57 Belmore Street, Parramatta (the site). 2Following the submission on amended plans, the council's Amended Statement of Facts and Contentions identified that the proposed development should be refused solely as it was prohibited under the recently gazetted local environmental plan and that the savings provisions should not be given determinative weight in the consideration of the development application. The previous contentions relating to height, floor space ratio, bulk and scale, streetscape, private and communal open space, social amenity and public interest were not pressed by the council. 3The council also contended that the proposed development should be refused having regard to the objectors concerns which were summarised as: * the inappropriate location given the narrow width of adjoining streets, * impact on the heritage listed dwellings in Belmore Street, * insufficient on-site parking, * out of character with the predominant building form in the area, * overlooking and loss of privacy, * loss of solar access, * unacceptable noise and loss of amenity, and * unacceptable bulk and scale. The site 4The site consists of Lot 11 and 12 in DP 35503. It is a rectangle a quarter site with a 29.9 m frontage to Belmore Street, a 53 m frontage to Corry Court and a site area of 1544 sq m. The site contains a dwelling house, open carport and above ground swimming pool on 55 Belmore Street and a split-level dwelling and detached garages on 57 Belmore Street. 5The surrounding area is residential in character with a mix of both detached dwelling houses and recently constructed townhouse developments. Public open space comprising several sporting fields and a car park are located in the immediate area. Relevant planning controls 6The site is currently zoned R2 Low Density under Parramatta Local Environmental Plan 2011 (LEP 2011). The proposed development is defined as "multi-dwelling housing" under LEP 2011 and is a prohibited use within this zone. However, the savings provisions in cl 1.8A of LEP 2011 are relevant and state: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable. 7The savings provisions apply as Development Application No. DA/299/2011 was lodged with the council on 10 May 2011, determined by refusal by the council with the Notice of Determination dated 16 September 2011 and the appeal filed on 21 September 2011. As LEP 2011 was gazetted on 7 October 2011, the savings provisions in cl 1.8A require the development application to be " determined as if this Plan had not commenced" or in other words, as if LEP 2011 was still a draft LEP . On this basis, I have referred to LEP 2011 as the draft LEP even though it has been gazetted. 8Prior to the gazettal of LEP 2011, the site was zoned 2(b) Residential under Parramatta Local Environmental Plan 2001 (LEP 2001). The proposed development was permissible with consent within this zone, as multi-unit housing. The objectives for the 2(b) Residential zone are set out below although there was agreement that only objectives (a) and (b) are relevant, in this case: (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage redevelopment of low density housing forms, including dual occupancies and multi unit housing, 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, and (f) to ensure the road network has a capacity to cater for increased development. 9The proposed development was also subject to the provisions of Parramatta Development Control Plan 2005 (DCP 2005) and it was agreed that the proposed development satisfies all the relevant requirements in DCP 2005. What weight should be given to the draft LEP? 10Mr Drury, for the council, and Mr Hemmings, for the applicant, agreed on the relevant authorities for considering the weight that should be given to the draft LEP, although they ultimately come to different conclusions. They agree that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted ( Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower , Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 11They agreed that the draft LEP is imminent and certain given that it has been gazetted but differ on whether the proposed development will preserve the character anticipated by Zone R2 Low Density Residential and whether the proposed development will substantially undermine the objectives of the zone. The objectives of the zone are set out below although Mr Drury and Mr Hemmings agree that only the first objective is relevant: Zone R2 Low Density Residential 1 Objectives of zone · To provide for the housing needs of the community within a low density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. · To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 12Mr Drury and Mr Hemmings also rely on the findings in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, where Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 13The findings in Blackmore Design and Terrace Tower provide that notwithstanding that the proposed development is prohibited under the draft LEP, it is a permissible development because of the savings clause. Even if the draft LEP is imminent and certain, it does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development undermines the relevant aims and objectives, in a substantial way. In this case, Mr Drury submits that the proposed development undermines the relevant objective of the R2 Low Density Residential zone in a substantial way whereas and Mr Hemmings submits the opposite. 14In considering the approach in Blackmore Design and Terrace Tower, I am satisfied that development consent should be granted for a number of reasons. First, there was no disagreement that the proposed development is permissible by way of the savings clause in LEP 2011. Second, there was no disagreement that the proposed development satisfies all the relevant requirements in DCP 2005 and that there are no merit concerns with the proposed development. Third, and having regard to the relevant objective, I do not accept that the proposed development substantially undermines the objective of the R2 zone of providing housing within a low density residential environment. Low density residential environment is not defined in LEP 2011 however any consideration of the proposed development against the objective cannot reasonably be undertaken without a consideration of the existing built form in the area. I agree with Mr Hemmings that given that the proposed development enjoys the benefits of the savings provisions, the test of whether the proposed development undermines the relevant objective of the R2 Low Density Residential zone, in a substantial way, is essentially a test of whether the proposed development sits comfortably in its local environment or setting, particularly given the wide range of building forms within the R2 Low Density Residential zone. 15The southern boundary of the site forms part of the boundary between the R2 zone and the higher density R3 zone. Because of the down zoning of the site from LEP 2001 to LEP 2011, there are unsurprisingly, and a number of multi unit housing developments already constructed within the R2 zone on the northern side of Belmore Street. There are also a number of multi unit housing developments in Gladstone Street, to the south of the site, and to the east on the opposite side of adjoining playing fields within the R3 zone. A duplex development is located directly to the south of the site, in Corry Court, within the R3 zone. There are also many single residential dwellings located within both the R2 and R3 zones. These single residential dwellings are varied and range from older single storey style cottages to large two-storey contemporary designs. 16In this context, I am satisfied that the proposed development is acceptable. I note that the amended plans sought to address the relationship with adjoining development by a reduction in the height of the roof adjoining the duplex development in Corry Court. When viewed from Corry Court, and the adjoining playing fields, there is a compatible visual relationship between the proposed development and the adjoining duplex development. When viewed from the narrower Belmore Street frontage, the proposed development presents a well articulated elevation that is compatible with the existing streetscape and less bulky than the existing multi unit dwellings in this street. While having a larger appearance than the existing single dwellings in this street, I do not accept that it is unacceptable in this context. Resident concerns 17The concerns expressed by the resident objectors were not specifically supported by the council through the provision of expert evidence although their concerns were considered by the council in their assessment of the application in the staff report to the council on 12 September 2011. The amended plans sought to address the matters raised by council staff, and as these matters are no longer pressed by the council, I accept that their previous concerns have been addressed. 18With the benefit of the site inspection and the staff report, the following comments are appropriate In response to the concerns raised by the residents: * the width of Belmont Street and Corry Court is sufficient to allow vehicles to safely pass, * the council's Heritage Advisor states that while there are several heritage listed buildings in the vicinity of the site, any adverse impacts on these buildings is likely to be negligible on the basis of the distance between the site and the heritage items * on-site parking satisfies the requirements in DCP 2005, * the question of whether the proposed development is out of character or has unacceptable bulk and scale is addressed earlier in the judgment, * overlooking and loss of privacy was seen as a potential issue from roof terraces however the amended plans provide for the removal of the roof top terraces that impact on adjoining residential properties. The location windows and courtyards was seen to be acceptable, * unacceptable loss of solar access was unlikely given the shadow diagrams submitted with the development application, although there will be additional shadowing but not sufficient to warrant the refusal or amendment of the application, * unacceptable noise and loss of amenity was unlikely given the design of the proposed development and the adequate separation distance between the entry to be basement car park and the adjacent dwelling house. Orders 19The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. DA/299/2011 for the consolidation, demolition of all improvements and construction of 2 x 2 storey buildings containing 9 dwellings over basement car parking with strata subdivision at 55-57 Belmore Street, Parramatta is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A and 6. ____________ G T Brown Acting Senior Commissioner 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. Decision last updated: 03 March 2012