Landpac Property Investment Pty Ltd v Holroyd City Council [2015] NSWLEC 1563

Land and Environment Court New South Wales

Medium Neutral Citation: Landpac Property Investment Pty Ltd v Holroyd City Council [2015] NSWLEC 1563 Hearing dates: 20 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The Applicant is granted leave to rely on Plan Basement 1 A202-E dated 19 August 2015 and Plan Basement 2 A 201-D dated 19 August 2015;

2. The appeal is upheld;

3. Development consent is granted to development application DA-2014-298 for demolition of existing structures and construction of a 6 storey residential flat building over 2 levels of basement parking at the property known as 1-3 Wayman Place, Merrylands subject to the conditions annexed and marked "A".

4. The exhibits, except Exhibits A and 5, are returned Catchwords: CONSENT ORDER: development application for mixed use development. Concerns of objectors. Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Holroyd Local Environmental Plan 2013 Category: Principal judgment Parties: Landpac Property Investment Pty Ltd (Applicant)

Holroyd City Council (Respondent) Representation: Solicitors: Mr A Whealy of Gadens Lawyers (Applicant)

Mr J Cole of HWL Ebsworth Lawyers (Respondent) File Number(s): 10227 of 2015

Judgment 1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Holroyd City Council (council) of a development application (DA2014/298) for the demolition of existing structures and construction of a six storey residential flat building comprising 19 units over two levels of basement parking at 1-3 Wayman Place, Merrylands (site). 2. The applicant has prepared amended plans for which leave was sought and granted. The key changes include: 1. the extension of Basement 1, Level 1 and Level 2 to the eastern boundary to facilitate an easement for vehicular access for the adjoining eastern property (5 Wayman Place) and future redevelopment of that land; 2. increased setback from the eastern boundary on levels 3-6 to improve solar access to the property to the south (29-31 Newman Street): 3. changes to the unit mix; 4. provision of fixed privacy screens to southern façade: 5. changes to the streetscape presentation through variation to the front setback of levels 5 and 6, façade articulation, materials and landscaping; and 6. internal changes. 1. The amended plans were renotified and submissions made in response to the original and amended application have been tendered into evidence. At the commencement of the hearing further minor amendments were made to the basement level plans. 2. As a result of amended plans (Exhibit A), conditions and the agreement of the experts, the issues in dispute between the parties have been resolved and they are seeking consent orders from the Court to uphold the appeal and grant consent to the amended application (Exhibit 5). 3. In accordance with the Court's Practice Note Class 1 Development Appeals (the Practice Note) the parties provided details of the notification to the objectors of the Consent Order hearing, an invitation to be heard at the hearing and the terms of the Consent Orders. 4. The Court heard objections to the proposal from the adjoining owner to the rear (12/29-31 Newman Street), who spoke on behalf of other residents. The principle concerns of the objector are that the site is too small to accommodate a six storey building and it would not fit in with the character of the area. The proposal would cause adverse impacts that result from significant non compliances with the planning controls under Holroyd Local Environmental Plan 2013 (LEP), Holroyd Development Control Plan 2013 (DCP) and the Residential Flat Design Code (RFDC), which is required to be considered under State Environmental Planning Policy No 65 Design Quality of Residential Flat Development (SEPP 65). 5. In particular, the objector raised concerns about the proximity of the building to her boundary, increased overshadowing of her unit by the proposal and any future re-development of 5 Wayman Place, including the accuracy of the shadow diagrams and the relevant overshadowing controls in the DCP and the RFDC. She also raised concerns about visual and aural privacy impacts of the proposal, removal of a tree, the adequacy of setbacks, particularly the nil setback on the eastern boundary, and changes to the outlook from her unit. She outlined concerns about the amenity of the development itself, including cross ventilation, clothes drying, external stairs and the basement layout. 6. A joint report has been prepared by Mr A Robinson, for the council, and Mr A Darroch, Mr R Dickson and Mr S King, for the applicant (Exhibit 4). The joint report addresses how the Contentions have been resolved and concludes that no contentions remain in dispute. Mr King also prepared an analysis of the overshadowing impacts of the proposal. 7. The experts also provided oral evidence to the Court that addressed the concerns raised by the objector. In particular, Mr King acknowledged that the overshadowing analysis included minor discrepancies in the depiction of 29-31 Newman Street but that these would not alter his assessment that the proposal would comply with the overshadowing control in the DCP that a minimum of 3 hours of direct sunlight between 9.00am and 4.00pm at the winter solstice (22 June) is to be provided to at least one main living area of existing dwellings. Mr King explained that the RFDC does not include overshadowing controls for adjoining development but the Rule of Thumb for solar access to new developments can be used as a guide. He noted that the proposal would be high density development and that the RFDC Rule of Thumb for 2 hours of solar access between 9am and 3 pm would be met. 8. Mr King explained that 29-31 Newman Street was setback 4m from its northern boundary, and was therefore "vulnerable" to overshadowing impacts. The proposal is setback from this boundary about 9.4m at levels 1-4 and thereby provides a greater proportion of the setback required to achieve the 12m separation distance recommended in the RFDC. Furthermore, the "break" between the proposal and any development of 5 Wayman Place would result in less overshadowing of 29-31 Newman Street than if the two sites were amalgamated and redeveloped as one building. 9. The experts considered that the separation distance between the proposal and 29-31 Newman Street would achieve acceptable privacy but accepted that the fixed louvres to the windows and the common access balcony were appropriate. 10. The experts agree that the setback of the proposal to the east and west achieves the objectives for building separation in the RFDC and complies with the requirements of the DCP, other than Levels 1 and 2 which have a zero setback to the eastern boundary. They consider this variation is appropriate as it provides a party wall for any future redevelopment of 5 Wayman Place. The combination of the zero side setback to the east and the provision of an easement for vehicular access address the contention in relation to the isolation of 5 Wayman Place. The experts agree that it will be able to be redeveloped separately in accordance with the planning controls. Council also accepts that the applicant has demonstrated that it has made reasonable efforts to purchase 5 Wayman Place and that the requirements of the DCP for landlocked sites have been addressed. Findings 1. The site is zoned R4 High Density Residential under Holroyd Local Environmental Plan 2013 (LEP). The LEP permits a maximum height of 20m and a maximum floor space ratio (FSR) of 1.5:1 for the site. The proposal complies with these controls and there are no material non compliances with the DCP of RFDC. The site is located in close proximity to Merrylands Commercial Centre and forms a transition between the higher FSRs and height limits on the opposite side of Wayman Place and to the north in Merrylands Road and the lower FSRs and heights in Newman Street and residential areas to the south. 2. The area is undergoing transition with considerable development that will change the existing character of the area. The proposed development is consistent with the form of development and the desired future character envisaged under these planning controls. The proposed development will have some impacts on the residential amenity currently enjoyed by the occupants of 29-31 Newman Street, however, these impacts are not unreasonable and are consistent with impacts that would result from the form of development envisaged under the planning controls. 3. I am satisfied that the Contentions raised by council have been adequately addressed and are resolved. The issues raised by the objector would not be reasons to refuse the development. The consent orders sought by the parties may therefore be granted.