Land and Environment Court New South Wales Medium Neutral Citation: Deeb v Parramatta City Council [2012] NSWLEC 1104 Hearing dates: 19-20 March 2012 Decision date: 27 April 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeals dismissed Catchwords: Residential flat building built contrary to development consent, without a construction certificate, impact on heritage item, adequacy of parking, whether a building certificate should be issued Legislation Cited: Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Land and Environment Court Act 1979; Parramatta Local Environmental Plan 1996 (Heritage and Conservation); Parramatta Local Environmental Plan 2001; Parramatta Local Environmental Plan 2011 State Environmental Planning Policy 65; Cases Cited: Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770; Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276 Texts Cited: Building Code of Australia; Residential Flat Design Code; Parramatta Development Control Plan 2004; Parramatta Heritage Development Control Plan 2001; Guide to Traffic Generating Developments Category: Principal judgment Parties: Alecsi Deeb (Applicant) Parramatta City Council (Respondent) Representation: Counsel Mr I Hemmings (Applicant) Mr A Galasso SC (Respondent) Solicitors Mr G Christmas Apex Law (Applicant) Ms M Mallos Maddocks (Respondent) File Number(s): 11222 of 2011 10192 of 2012 Judgment 1These are two appeals in relation to a residential flat development and heritage dwelling house at 55 Cross Street, Guildford. The development on the site has been constructed contrary to the development consent issued by Parramatta City Council and the applicant, who purchased the site from the person who undertook that work, has lodged a development application and application for a building certificate which seek to regularise the works as constructed. The parties agreed that the appeals be dealt with concurrently with evidence heard to apply to both. 2Matter No 11222 of 2011 is in relation to development application DA/235/2011 that proposed the demolition of part of the heritage dwelling, reconfiguration of on-site parking, additional landscaping works, fitout of two units to make them adaptable dwellings, remedial fire safety works to the flat buildings, installation of alternate balustrading to unit balconies and the use of 14 dwellings on the site for residential purposes. 3Matter No 10192 of 2012 is in relation to an application for a building certificate for the two dwellings and two residential flat buildings on the site. 4The council refused both applications and Deeb is appealing those determinations. Background and the proposal 5On 8 September 2006, Council approved by way of development consent 1200/2005, the demolition of outbuildings, tree removal, alterations and additions to the existing heritage listed dwelling, construction of a detached dwelling and two, 2 storey residential flat buildings containing a total of eight units. 6In September 2010 Council commenced Class 4 proceedings against the previous owner of the property, seeking an Order of this Court that the applicant undertakes works required to bring the development into compliance with the terms of condition of that development consent. On 3 May 2011 the Court issued an Order against the previous owner Ms Zreik and the applicant, Mr Deeb. The Orders made require: (1)Until further order, the Second respondent (the applicant) by himself, its servants, tenants or agents is restrained from using the property being Lot 2 DP 208503 and known as 55 Cross Street Guildford, except in accordance with the terms and conditions of the development consent DA/1200/2005. (2)Order 1 is suspended for a period of 12 months from the date of the orders so as to allow the Second Respondent within that period to undertake and to complete all outstanding works associated with the development consent DA/1200/2005 or such other consent as may be granted and which authorises development in substitution for works outstanding from DA/1200/2005 (3)On the satisfaction of Order 2, Order 1 is vacated. (4)The Second Respondent is to pay the Applicant's costs (as they relate to the Second Respondent) on and from 3 March 2011, as agreed or assessed. (5)All parties are granted liberty to restore the matter on 14 days notice. 7In accordance with the options anticipated in the above Orders Deep lodged development application DA/235/2011 with Council on 19 April 2011 seeking approval for the demolition of the unauthorised new addition to the heritage listed cottage, use and occupation of the unauthorised third-floor addition to be residential flat buildings for residential purposes, and use of the unauthorised second-storey addition to the detached dwelling. The plans also propose to provide for the on-site detention facilities in the front portion of the site that was approved as common open space rather than in below ground tanks and to increase the number of on-site parking spaces and driveway widths through a reduction in landscaped areas 8That application was refused on 15 grounds which are summarised as * The development is contrary to the objectives of the 2B Residential Zone; * A SEPP65 design verification statement and BASIX certificate was not submitted; * The design of common and private open space areas do meet SEPP65 and DCP requirements; * Inadequate provision for on-site car and bicycle parking, inadequate provision within units for storage requirements, inadequate floor-to-ceiling height; * Visual and acoustic privacy issues; * Negative impact on the setting/curtilage of the heritage listed cottage; * Approval of the application would set a negative precedent and undermine the public's confidence in the planning system; * Failure to demonstrate that an appropriate on-site detention system has been provided; * The proposal is not in the public interest. 9Also on 19 April 2011, the applicant lodged building certificate application No BC/34/2011 to the Council for the unauthorised building works at the subject premises, under section 149D of the Environmental Planning and Assessment Act (the Act). That application was refused on 2 August 2011 on six grounds, primarily that the development has not been constructed in accordance with the requirements of the Building Code of Australia (BCA) and relevant Australian Standards applicable to the development to which the application relates, the lack of certification and supporting documents, the failure to demonstrate the commitments listed in the BASIX certificates having been implemented during construction, the discrepancy in the plan accompanying the application which showed the addition to the heritage listed dwelling as having been removed, however, that building still remains on the site, and inconsistency in the annual fire safety certificate for the development. 10The Council issued Deeb with a Notice of Intention to Issue an Order under s 121B of the Act. Deeb's legal representative made representations to the council response to that notice and lodged further information in relation to the BCA issues however on 12 December 2011 the Council issued Deeb with an Order No 6 under s 121B of the Act. The Order provides or a 90 day compliance time period. 11Deeb has appealed against the Council's refusal of both the development application and building certificate application The issues Development Application 12The issues in the case are whether the development is consistent with the objectives of the 2C Residential zone of Parramatta LEP 2001, particularly in relation to the impact on privacy of the adjoining dwellings, adequacy of car parking, amenity of residents due to low ceiling heights, usable private and common open space and provision of storage space. The Council makes reference to the design principles of State Environmental Planning Policy 65 (SEPP65) and the associated Residential Flat Design Code (the RFDC) and says that the floor-to-ceiling heights, building separation and storage area per apartment fail to achieve compliance with the relevant requirements of those documents. 13The Council contends that the applicant does not provide sufficient car or bicycle parking spaces to comply with the objective of the RFDC and the provisions of DCP 2005. 14In relation to be impact of the development on the existing heritage listed cottage "Wingello", the Council contends the impacts are inappropriate because of the greatly increased bulk and scale of the three storey residential flat buildings, the design of those buildings, the increased extent of concrete driveway and minimal opportunity for landscaping, the additional bedroom at the upper floor of the detached dwelling, the increase from two to three car parking spaces in front of the cottage and the barren appearance of the detention basement flanking the front driveway. 15The adequacy of the design of the on-site detention system is also in contention however, the council agree that it is a matter that could be the subject of conditions provided appropriate engineering certification is received. 16The Council contends that SEPP 65 applies to the development application however the applicant disputes this fact saying that the application is only for a single storey addition to an existing building and therefore the provisions do not apply 17As a valid BASIX certificate was not submitted to the council, it says the application must be refused as required by clause 50 in the Environmental Planning and Assessment Regulation 2000 (the Regulation) and that the certificates submitted with the building certificate are invalid. 18As no valid construction certificate or occupation certificate for use of the constructed buildings has been issued, and no satisfactory BCA report indicating that appropriate fire safety measures are provided has been lodged, the council says this is further reason for refusal however agrees that these contentions could be addressed through appropriate certification. 19Approval of the proposed development would, according to the council, set a negative precedent and not be in the public interest by reason of the matters in its contentions. Building Certificate 20The Council contends that the building certificate application should be refused as the BASIX certificate submitted with the application is insufficient. It also says that there is insufficient evidence to establish that the building has been well constructed and is structurally sound and that until such time as all of the necessary works to the building has been carried out and the required certification has been received by council, it cannot be said that the building complies with all the relevant criteria of the BCA. The site and its context 21The site is located on the western side of Cross Street near its intersection with Wingello Street, and is an irregularly shaped East/West orientated battle-axe allotment with a frontage of 15.24 m to Cross Street, a northern side boundary of 88.035 m, an irregular southern side boundary of 100.07 m and a western rear boundary of 36.55 m. The site has an area of 2458 square metres and falls to the street. It is in close proximity to the southwestern border of the Parramatta Local Government Area (LGA) with the land to the south of the heritage listed water supply pipeline within the Fairfield local government area. 22A recently modified, heritage listed cottage, detached single storey plus loft dwelling and 2 three storey residential flat buildings are located on the site. The development is completed and occupied and was constructed without a Construction Certificate having been issued. It is apparent that the development has been constructed in a manner that is different from the development consent that was issued by the Council. The residential flat buildings are three storeys in height, rather than two storeys, the butterfly roof has been replaced with a skillion roof, the primary balconies on the western side of the apartments are substantially smaller in size, the at-grade bitumen driveway has been replaced with an elevated concrete driveway, landscaped areas adjacent to the driveway have been removed and an aboveground stormwater detention system has been substituted for the below the ground stormwater detention system. 23The original approval provided for 8 units (2 x 3 bed and 6 x 2 bed) and two freestanding houses (both 3 bedroom) and the completed development contains 12 units in addition to the two freestanding dwelling houses (heritage dwelling approved to be three bedrooms, now 4 but to be altered to 3). Parking for 10 cars was required and the remainder of the site was to be landscaped. The plans before the Court have reduced the amount of landscaping to allow for an additional 5 parking spaces and the installation of a boom gate to restrict access to on-site parking spaces. 24The site is located within a residential precinct located to the south of the Guildford Town Centre and is approximately 520 m walking distance from the entrance to Guildford Railway Station. The five allotments on the northern side of the site contain four, single storey dwellings and one 3 storey residential flat building. 25The site directly to the south of the access handle was formerly part of the subject site and was subdivided from the primary lot in 1962. That lot now contains a two storey brick dwelling. A single storey villa development is located to the south of the rear portion of the site. A 40 place child care centre, in a converted heritage listed dwelling, is located diagonally opposite the site at 66 Cross Street. The planning controls 26The site was zoned Residential 2C under Parramatta Local Environmental Plan 2001 (LEP2001) at the time consent DA/1200/2005 was issued and at the time the subject development application was received by council and determined thereafter. Residential flat buildings are permissible with consent in the 2C zone and relevant provisions of LEP 2001 are clauses 16 (permissible within zone), 39 (height limits) and 40 (floor space ratio). 27The objectives of the 2C zone are: (a) to encourage a variety of housing types, including residential flat buildings, where such development does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area, and (b) to provide opportunities for residential development close to major transport nodes, services and employment opportunities, and (c) to accommodate a range of housing needs by encouraging a mix of unit types, 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 the capacity to cater for increased development. 28In addition, Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (LEP1996) also applied at the time the original consent was issued, and the time when the subject application was received and determined by the Council. Relevant sections in that plan are clauses 2 (Objectives) and 3 (Land to which plan applies) and Schedule 2 (Heritage items of local significance). 29Parramatta Local Environmental Plan 2011 commenced on 7 October 2011 and zoned the site R4 High Density. The proposed residential flat building development is permitted under the new instrument. The relevant clauses of LEP 2011 are clauses 1.2 (Aims of Plan), 1.8A (Savings provision relating to development applications), 2.8 (Permitted with consent), 4.3 (Height of buildings), 4.4 (Floor space ratio), 4.5 (Calculation of floor space ratio and site area), 4.6 (Exceptions to development standards), 5.6 (Architectural roof features) and 5.10 (Heritage conservation). Mr Galasso, for the council, advises that the making of LEP 2011 did not make any significant changes to the planning controls relevant to the applications. 30Parramatta Development Control Plan 2004 (DCP2004) also applied to the site with relevant parts being part 4.3.1 (private and communal open space), 4.3.2 (visual and acoustic privacy), 4.3.4 (solar access and cross ventilation), 4.4.2 (safety and security,) 4.4.3 (housing diversity and choice) and 4.5.1 (parking and vehicular access). 31Parramatta Heritage Development Control Plan 2001 (DCP2001) was also in force at the time the original consent was granted with sections 3.2 (general principles) and 3.5 (new development) relevant to the applications. 32SEPP 65 and the RFDC are matters that should be considered in the determination of the application. The heritage items 33The original cottage on the site, known as Wingello, is identified as a heritage item in LEP 1996 and LEP 2011. Both plans require consent to alter a heritage item and consideration of the effect of any development on the heritage significance of the particular item. 34The heritage inventory sheet for Wingello describes the Statement of Significance of the cottage as: Larger house than those in locality associated with a notable person and subdivided as Whitakers estate in the 1880s. House built c. 1905 for Edgar Charles Friend, schoolmaster, of Guildford. Shown on the Water Board plan of February 1938. Part of the grounds of a house was subdivided later, when Wingello Street was put through. 35The assessment of significance, applying at the State Heritage Register Criteria, is on the basis that the item is historically significant and representative. 36The site is also in proximity to the heritage cottage at 66 Cross St. Applying the same criteria, that item is ranked as being historically and aesthetically significant, rare and representative. The Court notes that the conversion of that dwelling to a child care centre has been undertaken in association with the painting of the cottage in bright colours and the erection of freestanding shade structures at the front of the site. The evidence 37Expert evidence was heard from Applicant Respondent Area Mr J Coady Ms R Barretto Traffic and Parking Mr G Patch Mr B McDonald Heritage Mr A Byrnes Mr B Delapierre Town Planning Mr B McDonald Urban Design Ms Askew Mr Freixas BCA Mr Harriman Mr Sharman BCA/fire safety Parking and traffic engineering 38The experts addressed three issues, those being the accessibility of the on-site parking spaces, the suitability of parking spaces 13 and 14 for disabled parking and the adequacy of the on-site parking provision. Their considerations were based on an amended parking layout plan that provides 15 parking spaces and was prepared by Mr Cody prior to the joint conferencing that forms appendix A to Exhibit 12. No parking for bicycles is nominated on the plan and it does not involve any change to the extent of sealed parking and driveway areas, rather it alters the dimensions of some of the spaces. 39Applying the parking requirements under DCP 2004, the experts agree, because the site is further than 400 m walking distance to the railway station, a total of 25 car parking spaces are required plus 4 bicycle racks so there is a shortfall of 10 car spaces and 4 bike spaces. 40Mr Cody considers that the DCP parking rate is excessive and cites the Guide to Traffic Generating Developments, a publication of the former Roads and Traffic Authority and the 2006 Census, in particular the car ownership rates for persons living in units across the entire Parramatta LGA. Applying that information he says the most appropriate parking requirement for the "as-built" development is 21 spaces comprising 18 resident and 3 visitor spaces so that there is a shortfall of 6 spaces. That rate is similar to that contained within DCP2004 which has a lower parking requirement where residential flat buildings are within a 400 m walking distance to the station and, if that rate were to be applied to the development, a total of 21.15 spaces would be required. 41Mr Cody then relies on advice from the applicant in relation to the number of people currently residing in the developments and the car ownership rate and concludes that the current resident parking demand is 14 spaces. A survey of the surrounding streets was undertaken and reveals that the 15 on-site parking spaces were not filled to capacity during any of the survey period with a maximum of 13 vehicles and that of the 75 on-street parking spaces within the survey zone, a peak of 90.7% occurred on Saturday around 10 pm and 62.7% of a Monday around 5 pm. On the basis of this information, he concludes that the parking provision incorporated in the "as-built" development is adequate. 42It is important to note that the evidence also indicated that the applicant currently has an arrangement with a community-housing provider to provide rental accommodation and the tenancy of the building is under that arrangement. Also, Cross Street is an area undergoing transition from single dwelling houses to higher density housing in accordance with the provisions of LEP2011. 43Ms Barretto disagrees and says that the DCP rate should apply and, when approving the original development, the council allowed a deficit of 2 spaces on the mis-calculation of the distance from the railway station. She says that the demand for on-street parking in Cross Street is "medium" and that the approval of the child care centre, a mosque within the Fairfield LGA and the proximity of the site to the station, thereby attracting commuter parking, are all reasons that it is not appropriate to rely on the on-street parking to satisfy the demands of the development. 44The experts agree that the issues associated with the accessibility of on-site parking spaces are limited to parking spaces 3, 8, 10, 12, 13 and 14. Spaces 13 and 14 are nominated as disabled spaces. 45Mr Cody says all of the spaces are accessible and compliant with the relevant Australian Standards and prepared diagrams to demonstrate compliance with the appropriate swept paths for an 85-percentile vehicle. He says that the aisle widths exceed minimum requirements and the fact that the spaces are allocated to individual tenancies means that residents would be familiar with the manoeuvres required to enter/depart the spaces. Ms Barretto agrees that the spaces are accessible but says they are difficult to access and, with the installation of the bollards needed at the entrances to each of the unit buildings so as to meet BCA provisions, access would be further constrained. 46Spaces 13 and 14 are located adjacent to the site's northern boundary immediately to the west of the bin storage and to the east of space 12 and are the two designated disabled parking spaces. Spaces 12-14 have been added and the driveway widened to accommodate access to the spaces in areas that were previously to be landscaped. Ms Barretto says that these spaces do not include the shared area required for wheelchair hoists under AS2890.6 2009 and this area should not involve use of the driveway area, which is to provide for two-way movements, and could cause safety issues. Mr Cody, whilst acknowledging that the spaces do not comply with the 2009 Standard, says that they comply with the former standard that required the spaces to be 2.3 m wide and that drivers can get in and out of the spaces and vehicles and would orientate their vehicle to facilitate access if the person with a disability was the passenger. Heritage 47The experts agree that the unapproved additional bedroom at the upper floor of the new detached dwelling, while increasing the bulk of that building in proximity to the heritage cottage is of a lesser order of impact within its curtilage and therefore do not recommend any action. 48Mr McDonald says that the additional unapproved storey on each of the two residential flat buildings creates a much greater height and bulk, making them the dominant elements rising well above the hip roof form in the background of the heritage listed cottage when viewed from the street, the driveway and the areas in front of the site. By comparison the approved two storey northern residential flat buildings' roof line was only about half way up the peak of the cottage roof, making it a subservient element in the view from the driveway entry and other points at the front of the site. The southern two storey building would have been imperceptible behind the cottage roof in views from the street and down the driveway. He does not believe that the proposed tree plantings behind or in front of the cottage will ameliorate the visual impact of the three storey residential flat buildings and says that the three-storey scale with only 6.4 m separation between Block C and the rear courtyard fence of the cottage dominates the intervening space. 49Mr Patch says the residential flat buildings are appropriately simple buildings and have a form that is found in the area as at 51-53 Cross Street and the roofs are of a similar size to the roof elements of that building. He said that the presented facades (those that are being in the background of Wingello) are simple in composition and the effect of perspective and the relative position of a viewer in the public domain is such that a height of the building approximates that of the ridge of that cottage. 50Mr Patch has suggested that the relationship of the three storey residential flat buildings to the heritage cottage could be improved by painting the walls and solid balconies in a darker, more recessive colour. Mr McDonald agreed that this would help the light-coloured roof of the cottage to read more strongly from the street and the front of the site but believes it would be only be a marginal improvement because it will do nothing to affect the height and bulk of the residential flat buildings or the separation distance from the cottage. He says that the blocky, bland design of the two 3 storey residential flat buildings with their long, unattractive, skillion roof forms is totally unsympathetic in such close proximity to the heritage listed cottage and notes in particular the evidence of lack of consideration of the heritage cottage in the decision to put the highest point of the skillion roof closest to it. He says the design lacks any aesthetic distinction whatsoever and pays no respect to the architecture or form of the cottage. Mr Patch disagrees and says the buildings are appropriately simple in form and expression and allow the heritage item to remain legible. 51The experts both agreed that as the site was developed the extent of concrete driveway and minimal opportunity for landscaping is an issue and agree that the application of a stenciled surface in an appropriate mid-tone neutral colour will assist in reducing the barren appearance of the concrete driveway. They also agreed that the Lilly Pilly hedge proposed on the east and north side of the cottage will grow too high if not properly maintained and trimmed and recommend that it should be regularly pruned at a height not to exceed 1.5 m so that it does not obscure the view of the cottage. 52While Mr McDonald acknowledges that the landscape plan seeks to remedy some of the deficiencies of the existing development and some of these works have been put in place he says the proposed new landscaping will not be sufficient to screen or block the visual impact of the two 3 storey residential apartment buildings. He is also concerned on the evidence of the apparent lack of the maintenance of the landscaping recently installed, whether these selected trees and shrubs will prosper and be retained. 53Mr Patch says the maintenance of the landscaping as proposed is a matter for conditions, and that it would assist in modulation of the ground if the planting, particularly the Red Ironbark, were of more advanced specimens and could be established in the foreground of Wingello to assist in establishing an appropriate setting for the item. Once established, he says the scheme will greatly assist in decreasing the impression of the barrenness that the place currently exhibits. 54In relation to the additional parking space provided in front of the heritage listed cottage, Mr McDonald said that the two spaces approved originally would have a regrettable impact on the setting of the cottage but the intrusion was offset to some extent by the opportunity to have a planting bed on the eastern side screening them from the street, driveway and open spaces that the front of the site. The present provision of three cars leaves no room for planting on the eastern side and the planting proposed in this part of the recessed open space is inadequate to serve this purpose. He notes that the level of the open space is considerably lower than the approved development, as it is intended to serve as the detention basin and the combination of the level being lower and the car park and the detention basin function makes it doubtful that any effective screen planting will develop. 55Mr Patch says that given the "side-on" arrangement of the parking spaces, whether there are two or three cars is immaterial and it would assist if the planting between the car spaces and the cottage is increased in height and so too for the western end of the detention area. 56Mr McDonald compares the approved plan in which the landscaped areas at the front of the cottage were the same level as the driveway and underground tanks served the detention function. He said this arrangement created the opportunity for the spaces, although intended for communal use, to be treated more like a front garden of the cottage however, this treatment is not possible now due to the change of levels, the low brick retaining wall and the necessity to have a rather austere landscape approach confined to the perimeter of the spaces in the event that they are inundated. Mr Patch says the effect of barrenness of these areas will be ameliorated once the planting is more mature, and that access to these areas would allow them to be more useful in terms of the occupants of the development. 57The experts recommend a condition of consent relating to the proposed removal of the unapproved rear addition to the heritage cottage, requiring drawings which indicate the detailed design of the cladding to the rear wall, a simple square or rectangular stop bead at the corner and a vertically proportioned timber, double hung window in the west elevation. The experts do not support the horizontally sliding window design shown in the west elevation drawing of the cottage. 58Mr McDonald, in considering the heritage significance of the cottage and in particular, the inventory sheet provided, acknowledge that much of its importance was due to be historical connection to Mr Friend, and also because it was a larger dwelling. However, he says that the building to the rear, whilst not affecting the link to that person does affect the cottage and the setting and because it was a cottage in a much larger garden that setting is destroyed, partially due to the initial subdivision of the allotment and the two storey building allowed behind it. For that reason, he says the setting should be maintained by the retention of the landscaped front garden that was envisaged in the original plan, and that even the decision to allow parking in front of the cottage what regrettable. 59In Mr Patch's opinion the significance of the building is about its history and the three storey building and sunken landscaped garden does not impact on the understanding of that building. He says it is more important to retain legibility of the cottage and recommends the importance of suppressing the background as much as possible, and that is the reason he has recommended the alternate colour scheme. Town planning 60The experts agree that the former and current planning instruments that apply to the site allow the construction of a 3 storey residential flat building and that the site provides opportunities for residential development close to major transport nodes, services and employment opportunities. They do not agree whether the development as now proposed meets the objectives of the 2C zone as detailed in LEP2001, in particular, whether it compromises the amenity of the surrounding residential area, provides an appropriate housing mix and allows people to carry out a reasonable range of activities from their homes without adversely affecting the amenity of the neighbourhood. 61Mr Delapierre is of the view that the proposed development is contrary to the objectives due to the significant impacts on the privacy of adjoining dwellings, the failure to provide sufficient on-site car parking to cater for the needs of residents and the lack of opportunities for deep soil landscaping on the side boundaries in the vicinity of the residential flat buildings. Mr McDonald agrees and says the privacy impacts are due to the non-compliant side setbacks and the additional upper floor of the two residential flat buildings. He reiterates his opinion that the development detrimentally affects the setting of the heritage listed cottage. Mr Byrnes says that the proposal is for a permissible housing type that does not compromise the amenity of the surrounding area. 62In relation to housing mix, the original development approved two freestanding three bedroom dwellings, two three bedroom units and six two bedroom units. The application now proposed two three bedroom dwellings and twelve three bedroom units. Mr Delapierre says this is contrary to the objectives of LEP2001 and SEPP65 and the provisions of DCP2005 which indicates residential flat buildings providing 10-20% 3 bedroom units, 60-75% 2 bedroom and 10-20% 1 bedroom as all are 3 bedrooms so no mix is provided. He says this is also inconsistent with the demography of the area as demonstrated in the 2006 Census which shows the proportion of lone person households to be between 29-36% and low income households between 37-47%. 63Mr Byrnes says the proposal provides accommodation to the rental market and affordable housing accommodation and a mix of apartments and single dwellings and does not compromise the zone objective. 64Mr McDonald says that the upper level of the unit buildings create an averse impact on the amenity and development potential of surrounding residential areas due to the increased bulk and height in relation to the non-compliant side setbacks and the consequent increase in overshadowing and overlooking within the site and with regard to adjacent properties in comparison with the approved two storey buildings. Mr Byrnes says the housing provided is entirely consistent with the objective, as opportunities exist on all levels for persons to carry out activities from their homes where it does not adversely affect the amenity of the neighbourhood. 65The experts agree that consent conditions could require the provision of effective access to both common open space areas and seating and tables provided within those spaces to facilitate its use without impacting on views of the heritage item from the street and that the level of embellishment that would ordinarily be desirable for a site of this size would include a gazebo and BBQ however, they agree in this case that it would not be appropriate to include those facilities having regard to the impact within the foreground of the heritage item. They disagree as to the usability of the common open space given its dual use as detention basins and the adequacy and location of the areas available and maintenance needs. 66Mr Delapierre says DCP2005 requires 140 sqm of common open space and the RFDC indicates that the area of communal open space should be between 25-30% of the site area so a minimum area of 615 sqm is required and only 250 sqm is provided and those areas are divided by the driveway, are at the frontage of the site, are of low amenity, have poor accessibility and are not suitable for recreational use, particularly after rain when they will be damp. He says the deficit in usable private open space to the upper level units makes the provision of useable common open space particularly important. Mr McDonald says the communal open space is poorly sited in relation to the location of the majority of residents to the rear of the site and, whilst acknowledging the same circumstances applied to the two storey approved development, says that the design was far more sensitive to and ensured the conservation of the heritage item. He agrees that the area available is inadequate particularly because of the 50% increase in the number of dwellings in the units and the 125% increase in number of bedrooms and says the area is poorly sited, too small and of poor quality. Mr Byrnes says the common open space is appropriately located as it provides an attractive entry statement to the site, has not changed from the location approved by the council, is appropriate for its purpose and function, does not need to provide for active recreational use and enjoys the amenity of full solar access and passive surveillance from the street and adjoining properties. He says that access should be provided via stairs or a ramp and that dual use of the area as open space and detention is entirely appropriate. 67The balconies to the upper level units as constructed are reduced in width from that approved due to the provision of the third bedroom in what were approved as two bedroom units. In addition, the units incorporated wrap-around balconies to the main bedroom at the front elevation and those have been reduced in area. The council contends that the balconies fail to comply with the design requirements of SEPP65 in respect to depth and that the primary balconies fail to achieve well-proportioned and adequate solar control. The experts agree that some of the private open space areas are provided directly off living areas and that the width of the balconies of the upper two levels of the units does not allow for the placement of a table and associated chairs to be comfortably achieved. Mr Delapierre says that the apartments, being all three bedroom, are not provided with an opportunity for residents to enjoy the benefits of outdoor living and that, because the common open space area is at the front of the site, alternate opportunities for outdoor living should be provided. He says that what is provided results in a poor amenity for residents and is contrary to the recommendations of the RFDC. 68Mr McDonald says the ground floor units rely on peripheral private open spaces that will be heavily overshadowed and overlooked and the first and second floors rely on balconies of their living areas as the primary private open spaces. He says these balconies are only 1.3 m wide and have areas ranging from 4.55-5.2 sqm whereas Council's current DCP2011 requires a minimum dimension of 2.5 m and area of 10 sqm and the RFDC requires a minimum depth of 2 m. Mr Byrnes says the balconies are well orientated and contribute to the amenity of the apartments, allow for some extension of the living space and being north-west facing, facilitate good solar penetration into the internal living spaces, contribute to the amenity of the apartments and are a satisfactory element of the design. 69The experts agree that the floor to ceiling heights within the residential flat buildings do not meet the 2.7 m control contained in DCP2005 and recommended in the RFDC. The as built heights are: Block C Ground floor 2590 mm First floor 2490 mm Second floor 2480 mm Block D Ground floor 2590 mm First floor 2520 mm Second floor 2520 mm 70Mr Delapierre says the as built floor to ceiling heights result in a less than desirable level of amenity due to the reduced opportunities for cross flow ventilation, access to natural light, sense of amenity and solar penetration and although all units have extensive windows along external elevations, the privacy measures adopted by residents to reduce opportunities for overlooking and the BCA fire protection measures that involve the placement of fire safe mesh on at least the northern elevation have reduced the opportunities for daylight penetration. He says this is also a factor of the 5.8 m separation between buildings which impacts on privacy. 71Mr McDonald agrees and says the low ceiling height means the spatial quality of habitable rooms is claustrophobic, window and balcony glazing openings are lower than whey would otherwise be and ceilings are too low for safe installation of ceiling fans. 72Mr Byrnes says the provisions of the BCA permit the existing floor to ceiling heights, that each apartment enjoys generous access to daylight and ventilation on three sides so concludes the existing floor to ceiling heights provide a satisfactory level of amenity. 73Mr McDonald and Mr Delapierre agree that the internal setback of 5.8 m between the two residential flat buildings is inappropriate and whilst acknowledging the original application provided for the same setback, that was for a 2 storey building and had been deemed acceptable due to the heritage constraints of the site and the proposed landscaping. He says that landscaping has been compromised by the provision of the additional parking spaces, which also reduces the opportunity to provide screen planting along the boundary, and says the RFDC recommends a 12 m setback for buildings up to 4 storeys in height and this is not provided. He is also concerned at the side setbacks, which range between 1612 mm and 2950 mm, saying these will unduly impact on the potential redevelopment of adjoining sites. Mr McDonald says the inadequate separation contributes to deficiencies in visual and aural privacy, a sense of crowding on the site due to the close proximity of the two 3 storey building volumes and the poor quality of the ground floor private open spaces between the buildings. Taking into account the three storey scale and height of the residential flat buildings the separation distance of only 6.4 m to the rear courtyard fence of the heritage listed cottage is unacceptable in terms of dominance of bulk over the cottage and overlooking. 74Mr Byrnes says the approved separation at 2 storeys in not significantly different from that of 3 storeys in relation to environmental impacts, that the primary living and entertaining spaces are all orientated to the north-west avoiding any direct orientation of primary living spaces toward Block C or Block D and that because the window openings facing each block are modest in size and slightly offset from one another, the building separation is acceptable. 75The experts agree that relevant planning controls contain numerical criteria for storage and that this is not met in the units, the ground floor units provided with linen cupboards of approximately 3.5 sqm and the upper floor units with no provision for storage. They agree that a condition of consent could be applied requiring the provision of a small garden shed to the ground floor units however disagree whether it is appropriate that the upper units do not have any nominated area. Mr Byrne says that the size of the units allow for storage within the apartments but Mr McDonald and Mr Delapierre say it is unacceptable not to provide for any storage and that this has already led to the storage of items on the limited balcony spaces. 76Privacy issues are a concern to both Mr Delapierre and Mr McDonald because of the additional building height and proximity to boundaries however Mr Byrnes says the privacy impacts from the proposal are acceptable and consistent with the transition in built form underway in the area from single dwellings to multi unit residential developments of 3 storeys in height. 77Mr Delapierre says that due to the lack of amenity provided to occupants, the impact of the development on the surrounding built form and streets and the heritage listed cottage, it is not in the public interest to allow the application. To do so would set a negative precedent and undermine the public's confidence in the NSW planning system as it would be giving defacto approval to a development that has been built without a development consent and ignoring to a large extent, the usual requirements of both the LEP and applicable SEPPs and the development consent that sought to allow for the sensitive redevelopment of a heritage listed site whilst minimising its impacts on surrounding properties to provide the financial incentive to restore the item. Mr McDonald concurs wheras Mr Byrnes says the retention of the 14 apartments on the site is in the public interest as the accommodation provides housing in an area subject to high levels of housing stress and the refusal of the application would result in the displacement of current tenants. BCA 78Ms Askew and Mr Frexias have undertaken a comprehensive assessment of the building construction and have identified significant areas of non-compliance with the BCA. In addition they have reviewed certification lodged on behalf of the applicant and identified serious discrepancies and omissions in that documentation. To assist the Court they prepared a comprehensive list of works that need to be undertaken and certification to be lodged prior to any building certificate being issued. That 15 page document recommended further consideration of the non-compliant stairways by a fire engineer. Mr Harriman and Mr Sharman undertook that exercise along with investigation of other relevant fire safety matters and identified further areas of non-compliance. They also prepared a works schedule and list of conditions that should attach to any approval or building certificate if issued. Mr Harriman also identified a new issue, that being the roof construction, which had not been appropriately tied down. Mr Sharman indicated that there were no real concerns in relation to the safety of occupants of the buildings and that all of the issues must be addressed to ensure the development complies with the BCA and all relevant Australian Standards. Conclusion and findings 79There are two tasks before the Court, one is to assess the development application on the basis of its merits as if the building had not been built. The other is to determine whether a building certificate should be issued. 80It is apparent from the evidence provided that there is more work to do to fully understand the precise nature of works that are required to bring the building into compliance with the BCA. Further investigation of the structural suitability of the building and fire safety measures are required. The parties agree that, at this stage, it is not appropriate that a building certificate be issued and have requested that I deliver my findings in relation to the development application, and if that appeal is upheld and I am satisfied that the works could be done, give consent to those works so that the work can continue. A path for certification and carrying out those works could then be established with the Court retaining control until such time as it deemed appropriate to either provide the applicant with a list of works required to be carried out before the council issues a building certificate or, if satisfied the building is compliant with all relevant provisions of the BCA and development consent, direct the council to issue the building certificate. Should development consent be granted? 81Both parties agree that the development to be found on the site is "remarkable" in terms of its built form. It is clear that the Environmental Planning and Assessment Act 1979 (the Act) contemplates the determination of a development application involving works that have been carried out in breach of that Act. Section 124 provides for that to occur. This is made clear by Jago J in Sahade v The Owners - Strata plan No. 62022 & Ors [2006] NSWLEC 770 where her Honour states: 10 In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined. 82The path described in Sahade is the precise path the applicant has taken in these proceedings and I have regard to the fact that the council has also commenced proceedings under Class 4 of the Land and Environment Court Act 1979 (the LECAct) as detailed at [6] and it is also open to it to take further action in relation to the unauthorised works should it deem appropriate. In this case, it is important to consider the merits of the application and not consider the legal implications of that work having been undertaken. That is a matter for another day and is made clear by Bignold J in Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276 where his Honour at [115 to 117] states: 115. The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, (decided 20 years later) was next noted, with citation of an extended passage from the judgment of King CJ at 323-324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning): Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions. 116. In Ireland I noted (at par 87) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing (i) planning appeals, (ii) building appeals, (iii) demolition order appeals and (iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court, and its absence may go far in explaining the decision in Ellmoos). 117. I adhere to the views expressed in Ireland, noting that I did not understand the Council in the present proceedings to question those views. 83The contentions in relation to the development application require an assessment of whether the proposal as constructed is acceptable in terms of heritage impact, parking, and planning and urban design, in particular internal and external amenity. 84From the evidence provided, it is apparent that in its determination of the original application, the council granted concessions to the applicant in terms of parking and setbacks to reflect the heritage constraints of the property whilst allowing a built form that it considered did not have unreasonable impacts on the heritage item, Wingello. 85Having had the benefit of a site view and heard the evidence from the heritage experts, I prefer the evidence of Mr McDonald that the height, bulk and scale of the additional storey on each of the residential flat buildings has a negative impact on the setting of Wingello. In addition, the extent of the driveway and carparking areas, the loss of compensatory landscaping adjacent to the northern site boundary and in front of the three parking spaces to the east of that dwelling and the impacts of the above ground detention basin detract from the setting of that heritage item to an unreasonable extent. The suggestion of Mr Patch to change the colours or the upper floor, whilst having some merit, would not sufficiently mitigate the significant and detrimental impact of that additional storey. Similarly, I do not accept that the application of a stencilled pattern to the expansive driveway and car parking areas would satisfactorily address the adverse impacts of those areas. 86I do not accept the submission of Mr Hemmings that because the aesthetic significance of Wingello is not included on the heritage inventory sheet for the item that it's listing is not about the building's appearance and setting. I reject that and consider that the appearance is relevant in terms of the building having been larger than what was characteristic at the time of its construction and therefore, it is an important consideration. So too is its setting and the means of addressing the on-site detention for the site is not appropriate and should be underground or alternately, located behind the heritage item. 87I agree that the bedroom added to Wingello should be deleted and accept the opinion of the heritage experts that the additions to the upper level of the new dwelling could be retained. 88As stated in [84] the council had consented to a non-complaint and reduced setback to the residential flat buildings, both in terms of side boundaries and between those buildings. The addition of the third storey to those buildings is not considered appropriate in terms of the bulk and scale of that building and the proximity of the upper level balconies to the side and rear boundaries. I accept the fact that the council approved the first floor balconies on a similar alignment however, the increased height also increases the impact of overlooking and privacy impacts to adjoining properties. I accept the opinion of Mr Delapierre that the reduced balcony width is also inappropriate for the upper level units, particularly because of the reduction in size of the secondary balconies adjacent to the bedrooms of those units and the location and design of the common open space/detention basin. 89I agree with Mr Byrnes that the floor to ceiling heights of the units provides an acceptable level of amenity and that the floor area of the units is sufficient to accommodate the reasonable storage needs of occupants of the upper floor units and that a small shed should be provided within the courtyards of the lower units. I also agree that it is appropriate to provide a range of dwelling sizes and unit mix and this is not the case with the development proposed. 90Whilst Mr Cody has attempted to define the parking needs for the site and demonstrate that sufficient parking is provided, I do not accept the approach adopted, particularly having regard to census data that applies to the whole of the Parramatta LGA rather than the locality and the reliance on a survey conducted by the owner of the site with regard to car ownership and on-street parking. It is apparent that the site is within an area undergoing transition from low density housing to higher density residential and accordingly, it is appropriate that all developments provide for their individual parking needs on site as anticipated by the council's planning controls. Whilst I accept Mr Cody's evidence that the spaces proposed are accessible, I am not satisfied that there is any reason to vary those numerical controls for parking any more than the Council had done in its original determination of the application and find that a deficiency of 10 spaces is unacceptable. 91After consideration of the evidence, the LEP, the DCP, the oral submissions of the parties and the relevant matters in s 79 C of the EP&A Act, including the DCP which is a focal point of my consideration, it is apparent that the built form on the site is not acceptable in terms of impacts on the heritage item Wingello and when assessed on merit. For those reasons, the application should be refused. In view of these findings it is not necessary that I determine whether the provisions of SEPP65 apply to the application. Should the building certificate be issued? 92Determination of the application for the building certificate is also required. Section 149D of the Act details the Council's obligations to issue a building certificate as follows: (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993: (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council , or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. 93The Court's powers on appeal are wider and, under s 149F(3), it may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. 94 From my merit assessment of the development application, I find it likely that the council could decide to order the building to be demolished, altered, added to or rebuilt and accordingly, this is a consideration that I need to make in determining whether the certificate should be issued and whether I should order the council to issue a certificate which would prevent it making an order pursuant to s 149E(1)(a) of the Act. 95At the present time, there is no evidence available to the Court as to the structural integrity of the building. The evidence is that the applicant would be required to provide certification of certain elements of the building however, it is not know if this certification can be obtained, nor what are the impacts of obtaining that certification. It is also apparent that considerable works are required however, there is no evidence of what that work will look like when completed and whether it would have any other impacts or if further works would be required. 96Having found that the building does not warrant approval in its present form in my assessment of the development application, I cannot allow the grant of the building certificate as I am not in a position where I could issue an order that specified the terms and conditions that would allow a certificate to be issued pursuant to s 149F(3)(a). 97In Appeal 11222 of 2011 the Orders of the Court are: (1)The appeal is dismissed. (2)Development application DA/235/2011 that proposed the demolition of part of the heritage dwelling, reconfiguration of on-site parking, additional landscaping works, fitout of two units to make them adaptable dwellings, remedial fire safety works to the flat buildings, installation of alternate balustrading to unit balconies and the use of 14 dwellings on the site for residential purposes is refused consent. (3)The exhibits, other than exhibit F, are returned. 98In Appeal 10192 of 2012 the Orders of the Court are: (1)The appeal is dismissed. (2)The exhibits are returned. Sue Morris 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. Decision last updated: 30 April 2012