Ahal v City of Parramatta Council

Case •

[2021] NSWLEC 1555

•

22 September 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Ahal v City of Parramatta Council [2021] NSWLEC 1555
Hearing dates: 13 and 14 May 2021
Date of orders: 22 September 2021
Decision date: 22 September 2021
Jurisdiction:Class 1
Before: Espinosa C
Decision:

See orders at [61]

Catchwords:

DEVELOPMENT APPEAL – boarding house – character – cl 4.6 written request justifying contravention of height development standard – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, 8.7, 8.15

Parramatta Local Environmental Plan 2011, cl 4.3, 4.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29, 30A

State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy (Vegetation in non-rural areas) 2017, cl 5, 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Water Management Act 2000, s 90

Cases Cited:

Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

Parramatta Development Control Plan 2011

Category:Principal judgment
Parties: Chris Ahal (First Applicant)
Mark Ahal (Second Applicant)
City of Parramatta Council
Representation:

Counsel:
R O’Gorman-Hughes (Applicants)
T Poisel (Respondent)

Solicitors:
Hartley Solicitors (Applicants)
Sparke Helmore Lawyers (Respondent)
File Number(s): 2020/235806
Publication restriction: No

Judgment

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of a development application reference DA/220/2020 being an application for development consent to demolish all existing structures and construction of a four (4) storey boarding house containing a total of 16 boarding rooms including one (1) manager’s room and provision of basement car parking accommodating five (5) car spaces, including two (2) accessible parking spaces, four (4) motorcycle spaces and four (4) bicycle parking spaces (the Proposed Development) at 13 Collett Parade Parramatta legally described as Lot 33 DP 35120 (the Site).

  2. Since the filing of the Class 1 application, the Parramatta Local Planning Panel resolved on 15 September 2020 to refuse the Proposed Development and the reasons are contained in the Notice of Determination issued on 23 September 2020.

  3. On 16 February 2021 the Applicant sought and was granted leave to rely upon amended architectural plans being Revision J. The Joint Expert Report (JER) by the Planners address further amended plans Revision L and Revision N is the final version of architectural drawings annexed to Supplementary JER. The Applicant seeks to rely on the Revision L drawings and tendered them during the proceedings (Exhibit A) together with Schedule of Amendments (Exhibit B) without objection from the Respondent. Leave was granted and the parties agreed that the usual order as to costs pursuant to s 8.15(3) of the EPA Act should be made.

  4. The Site comprises an area of 566.6m2 with a road frontage to Collett Parade of 17.38m and has a fall of approximately 1.36m from Collett Parade to the rear of the Site. The Site is zoned R4 High Density Residential under the Parramatta Local Environmental Plan 2011 (PLEP) where a boarding house is permissible with consent. Consent is sought for the Proposed Development under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

  5. The Site is agreed between the parties to be an isolated site in the context of the minimum street frontage control for a boarding house and for a residential flat building is 24m whereas the street frontage of the Site is 17.38m. It is not contentious that the contentions pressed by the Respondent are the result of various non compliances effectively because the Site is an isolated site. The Respondent filed Amended Statement of Facts and Contentions (SOFAC) on 12 March 2021 and submits that although the SOFAC does not consider or respond to the amended plans the Proposed Development should be refused on the basis that the contentions in the SOFAC are not resolved. The Respondent articulated the three contentions outstanding and essentially the case is about compatibility of the Proposed Development with the existing and desired character of the local area and contravention of the maximum building height. The status of the three outstanding contentions is as follows:

  1. Contention 1 is pressed by the Respondent noting that the Proposed Development is generally compatible with the existing character of the local area but what is in contention is whether it is acceptable from an urban design perspective (Para [29] on page 7 Exhibit 2 - the Respondent’s expert town planner, Ms Mehrtens defers to the urban design expert witness). The Respondent explains in opening statement that the remaining issue in this contention is the mirror reversing of the development so as to not affect or impede the existing local character of the southern side of Collett Parade and in particular the row of townhouses and houses to the west of the subject site, right up to Pennant Street. (Transcript 13 May 2021, Page 20 at para [20])

  1. The Applicant says that the location of the driveway of the Proposed Development is in direct response to advice from the Respondent noting the potential new road on the adjacent land owned by the University of Western Sydney. (Transcript 13 May 2021, page 26 at [30])

  1. The second contention raises the question of whether the proposed boarding house is compatible with the Desired Future Character (DFC) (contention 2) contrary to cl 30A of SEPP ARH as a result of a number of local controls not being complied with. The town planners in this respect disagree as to what the controls say about the desired character and this is the key issue between the town planners. There are three elements to this contention. Firstly, the Respondent submits that the DFC is shaped by two things, firstly the DFC specified for the “Collett Park Precinct” by section 4.1.2 of the Parramatta Development Control Plan 2011 (PDCP) which provides for “New developments with landscaped settings that reinforce existing street trees” and “Building heights that respond to existing development”. The second thing the Respondent relies on to shape the DFC is the maximum building height of 11m under cl 4.3 of the PLEP (Contention 2 Particular (b)(i)).

  2. The second aspect of DFC particularised in contention 2 is the non compliance with the building envelope controls for boarding houses in section 5.1.4 of the PDCP (which cross reference section 3.1 of the PDCP) specifically requiring a deep soil equivalent to 30% of the Site area, comprising minimum components of 4m by 4m and requiring a landscaped area equivalent to 40% of the Site area, comprising minimum widths of 2m and minimum depths of 1m.

  3. Thirdly and lastly, the Respondent submits that the insufficient Site frontage is a fundamental aspect of the Proposed Development which is incompatible with the desired character and which compromises desired landscaping and results in a pronounced incompatibility with existing developments. I note that these numerical non compliances are repeated in Contention 3 particular (c) relating to namely deep soil, landscape and site width.

  4. In relation to contention 3, the Respondent submits that there are insufficient environmental planning grounds to justify the contravention of the maximum height of buildings development standard. The Proposed Development breaches the maximum height of 11m being a development standard provided for in cl 4.3 of the PLEP. The Applicant relies on the cl 4.6 written request prepared by Anthony Betros dated May 2021 (Exhibit E) and the issue is further address in the Joint Expert Report (Exhibit 2) on page 14 at para 68 and 70.

  1. Contentions 4 and 5 are resolved by the Revision N amended plans. Specifically, in relation to residential amenity the experts agree as to common open space thereby resolving Contention 4. The issue raised in the contention was the amenity to the common areas and the updated Proposed Development in the Revision N plans (Exhibit A) provide for the areas to be effectively swapped so that the communal area gets the sun orientation and that has resulted in the contention being resolved. Similarly, contention 5 regarding neighbour amenity is resolved by the Revision N amended plans.

  2. Contention 6 relates to the quality of documentation and on day 2 of the hearing the Respondent confirmed that this contention was no longer pressed. (Transcript 14 May 2021, page 87 at [45])

  3. The Applicant’s case (Transcript 13 May 2021 page 35) is that the Proposed Development is the type of development encouraged by the SEPP ARH, the non-compliance with landscaped area is a ground upon which the SEPP ARH provides that a development proposal must not be refused (cl 29(2)), that it fits the criteria for the control relating to an isolated site and that ultimately, the Proposed Development is significantly under the permissible floor space ratio at 1.08:1 (max being 1.3:1), and whilst it does exceed the height limit of 11m (with a proposed height of 13.38m), in the circumstances of this case given that it is surrounded by the university and in a street where all of the other buildings recently approved breach the height limit, that that’s an acceptable outcome. The Applicant submits that the Proposed Development is a sensible design for an isolated site.

  4. The proceedings commenced with an onsite inspection of the Site and the local area.

  5. The parties rely on joint expert reports prepared by Town Planners and Urban Designers as follows:

  1. Joint Expert Report prepared by Anthony Betros, Town Planner for the Applicant and Frances Mehrtens, Town Planner for the Respondent filed 6 May 2021 (Planning JER) (Exhibit 2).

  2. Supplementary Planning JER filed 12 May 2021 (Exhibit 3).

  3. Joint Expert Report prepared by Peter Smith, Urban Design for the Applicant and Brett Newbold, Urban Design, for the Respondent filed 11 May 2021 (Urban Design JER) (Exhibit 4).

  4. Supplementary Urban Design JER filed 13 May 2021 (Exhibit 5).

  1. Following the conclusion of the proceedings the parties filed an agreed Proposed/Draft Conditions of Consent on 19 May 2021 (Exhibit 6) and I will refer to these consent conditions in my reasons.

Consideration of compatibility of the Proposed Development with the existing and desired future character of the local area cl 30A SEPP ARH (Contentions 1 and 2)

  1. I will now undertake the necessary consideration of whether the Proposed Development is compatible with the character of the local area as required by cl 30A of the SEPP ARH which is titled “Character of local area” and provides as follows:

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

  1. I will consider firstly compatibility of the Proposed Development with existing character and then secondly, the compatibility of the Proposed Development with the desired future character of the local area.

Does the Proposed Development need to be mirror reversed in order to be compatible with the existing character of the local area? (Contention 1)

  1. The Respondent contends that the Proposed Development should be refused because it is not compatible with the existing character of the local area due to the interface with the existing low density residential development to the west and northwest of Collett Parade.

  2. The local area catchment is agreed between the town planners and in opening the Respondent said that "it’s been agreed between the town planners that the local area catchment is what we walked today, to the extent along Collett Parade between James Ruse Drive and Pennant Street, but not the area we went to when we left Collett Parade to turn right onto Pennant Street to look at a couple of other residential flat buildings. That’s not part of a local area, as agreed between the experts.” (Transcript 13 May 2021 page 19 at par 15) and refer to Planning JER (Exhibit 2) page 2 para [9]).

  3. The Town Planning Experts agree that the Proposed Development is compatible with the existing character of the local area. (Transcript, 13 May 2021, page 20 at para [3]).

  4. The Respondent’s position with respect to contention 1 is that although the town planners agree that the Proposed Development is generally compatible with the existing character of the local area, from an urban design perspective, the urban design evidence is that the Proposed Development should be mirror reversed so as to “not affect or impede the existing local character of the southern side of Collett Parade and in particular the row of townhouses and houses to the west of the Site, right up to Pennant Street, that is that the driveway and then all the internal building should be flipped so as to keep the existing character of the south-western side of Collett Parade […] and it permits effectively a landscape screen wall along the western side so as to break up the bulk and scale of this building against the existing character to the west of that site.” (Transcript, 13 May 2021, page 20 at para [35] – [45]).

  5. I note that during the site inspection there was discussion of the location of the driveway being in response to feedback the Applicant received from council traffic engineers. (Transcript, 13 May 2021, page 20 at [30]).

  6. Mr Newbold’s urban design evidence can be summarised as follows:

  1. “By ‘east-west mirror reversing’ the building plan, a distinctly-green backdrop would be presented to those townhouses, and that green backdrop would display a visually-appropriate transition from the existing low-medium density development to higher-density forms of development which may be anticipated upon the neighbouring university property to the east.” (Urban Design JER (Exhibit 4) at 21(i))

  2. Mirror reversing the site plan offers benefits including a greener presentation for the north-western corner of the Site which adjoins the existing low density streetscape and he refers to the existing lower-density residential character being a relevant consideration relying on the height of building development standard objective in cl 4.3(1)(e) of the PLEP to reinforce and respect the existing character and scale of low density residential areas. (Supplementary Urban Design JER (Exhibit 5) at 10(a)-(b)). The Applicant refers to this as a curious argument and submits that the problem with that approach is that it is not a low density residential area because it is zoned R4, which is high density residential. (Transcript 13 May 2021 page 33 at [48])

  3. In oral evidence Mr Newbold confirmed that his opinion that the preferred location for the driveway is the eastern side is not changed after being asked about the planning proposal for the University of Western Sydney land adjacent to the Site. His reason is

“because my fundamental starting point has been compatibility with existing character of the local area and I maintain that the greatest sensitivity, the highest levels of attention to detail need to focus on the western frontage of the site, the western side of the site and its north-westerly presentation to Collett Parade, and in that regard I think that compatibility with existing character is certainly optimised by flipping the development site and providing a green setback which wraps the north-western corner of the building and extends, to some extent, unbroken down the full western frontage.” (Transcript 14 May 2021, page 118 at [46])

  1. The Applicant submits that there are at least three reasons why mirror reversal is not necessary as follows (Transcript 13 May 2021 page 26):

  1. The Proposed Development Site has a narrow street frontage therefore mirror reversing the location of the driveway will not make a significant difference;

  2. The opinion of the Urban Design expert for the Respondent is in conflict with the advice given by officers of the Respondent to the Applicant previously as to the location of the driveway; and

  3. The street is in transition and compatibility with the future character is far more important than compatibility with what is existing.

  1. I agree that the width of the Site is a relevant consideration in the context of the suggestion by Mr Newbold to mirror reverse the proposal and I accept that because of the width of the Site, it will not make significant difference if the Proposed Development were mirror reversed. In other words, I am not satisfied that the mirror reversal which in Mr Newbold’s words will effectively permit a landscape screen wall along the western side so as to break up the bulk and scale of this building against the existing character to the west of that site is necessary or required in order to achieve compatibility with the existing character of the local area. I give my reasons as follows.

  2. I accept the evidence of Mr Betros during the hearing (Transcript 14 May 2021, page 105 at [20]-[26]):

  1. Question asked by Mr Poisel “Would the landscaped backdrop if the building was flipped minimise that visual impact?”

  2. Answer by Mr Betros: “To me it would not warrant any change” and “I don’t think that it would significantly alter the visual relationship.”

  1. I note that Mr Newbold and Mr Smith reached agreement on wording for street tree planting amending the Landscape Plans Revision O and that this agreement is documented in draft Consent Condition 6 (Exhibit 6).

  2. Advice regarding the positioning of the driveway on the Site was provided to the Applicant at a pre DA meeting and is documented in Exhibit J. Further, the Applicant refers to the current proposal of the draft University of Western Sydney (UWS) planning proposal and the proposed indicative location of the new road to be located adjacent to the Site. The Applicant submits that:

“you would expect that there would be a road dividing the land which is subject to an 11 metre height limit or some other height limit and something far greater in height on the university site which might be 28 metres. […] If you’re going to have a road there, which marks the delineation between something that might be taller on our site, you don’t want the driveway right next to the road. That’s why we were told to move the driveway and we say it’s a better planning outcome in the long term, given that the public housing townhouses next door won’t be there forever.” (Transcript 13 May 2021 page 39 and 40 at [32])

  1. Mr Smith’s evidence is that because of the narrow frontage of the Site, the driveway is visible from all parts of the frontage (Supplementary Urban Design JER (Exhibit 5 at 10(c))) and that in the context of the planning proposal indicating the location of where the new road will be, namely along the Sites’ eastern boundary, Mr Smith’s evidence is that he would be concerned in locating the driveway of the Proposed Development on the eastern boundary. (Transcript 14 May 2021, page 119 at [22])

  2. Mr Smith does not resile from the agreement that satisfactory green curtilage has fundamental importance to compatibility and the existing and desired characters however he clarifies that although the mirror reversing of the Proposed Development would be a direct benefit to the western visual catchment, there would be a ‘disbenefit to the eastern visual catchment’ (Transcript 14 May 2021, page 119 at [16]) and explains at [20]-[33] as follows:

“on the eastern side the full eastern façade is currently exposed to view because there’s no development on the university site. So, you could argue that having landscape there is even more important than on the western side […] and if the planning proposal was to proceed in the way that it is indicated in the documents that have been submitted to council, and there was a road located along that boundary, then it would even ben more exposed.”

  1. Mr Smith maintains in cross examination that mirror reversing is unnecessary to achieve compatibility with the existing character of the local area. He refers to the narrow site, the shielding impact of the existing and agreed proposed street trees and the front setback landscaping on the proposed driveway (Transcript 14 May 2021, page 127 at [5]). Mr Smith also refers to the layout of and relationship to the “low rise development on the western side” and “given that we have a driveway sitting next to a driveway and garage door sitting next to a garage door, I am more ambivalent as to kind of the location of that driveway and don’t see the necessity for it to flip.” (Transcript 14 May 2021, page 128 at [35]). In response to the consideration of side boundary having a bedroom located at the rear of the adjacent low rise development, Mr Smith confirms that that bedroom is looking into the part of the Site that has landscaping and confirms that the presence and location of this habitable room is not sufficient to warrant the flipping. (Transcript 14 May 2021, page 131 at [5])

  2. Mr Smith gave evidence during the proceedings that the planning policy of the Land and Housing Corporation, the owner of the adjacent town house development to the west of the Site, is that the town house development would be replaced but that he did not know when it was going to be redeveloped.

  3. Having considered the evidence of Mr Newbold and Mr Smith I find that the proposed location of the driveway is reasonable in the circumstances of the material provided to the court regarding the draft planning proposal for the UWS and the possible location of the new road. It is also reasonable in the circumstances of the Site having a narrow frontage and the impact of the proposed landscaping which will mitigate the urban design concerns raised by Mr Newbold.

  4. Another relevant consideration is the relationship between the Proposed Development and any habitable rooms and windows of the adjoining western neighbour at 9-11 Collett Parade. I accept the evidence of Mr Betros in the cl 4.6 written request (Exhibit E) at page 9 in the context of the height variation where he states as follows:

“The proposed height variation does not generate any adverse visual bulk impacts as the primary orientation of the adjoining western neighbour at 9-11 Collett Parade is to the front (north) with only secondary side windows facing the site. The recessed nature of the uppermost level also assists in minimising any potential visual bulk impacts.”

  1. Similarly, Mr Smith gives evidence firstly that he does not think mirror reversing the Proposed Development is necessary. (Transcript 14 May 2021, page 128 at [35]). Secondly, Mr Smith’s evidence is that the presence of habitable rooms and the locations where they are, are not sufficient to warrant the “flipping” of the Proposed Development. (Transcript 14 May 2021, page 131 at [5]).

  2. Lastly, I accept that the relevant local area is in transition from low density residential to high density residential and accordingly compatibility with the DFC is more important than compatibility with the existing character. The expression “compatible” in the urban design context has been described as capable of existing together in harmony (Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 (Project Venture) at [22]) and the Respondent submits that in order to test whether a proposal is compatible with its context, the following two questions should be asked (Project Venture at [24]):

  1. Are the proposal’s physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.

  2. Is the proposal’s appearance in harmony with the buildings around it and the character of the street?

  1. The Applicant submits that it is difficult to see that compatibility with the locality should be defined by the one building in the street that is a clear anomaly namely, the town house development at 9-11 Collett Parade, and the Applicant submits that Project Venture is also authority for the proposition that “where planning controls envisage a change of character, in which case compatibility with the further character is more appropriate than with the existing.” (Project Venture at [23])

  2. I accept that the relevant local area is in transition from a low density residential area to a high density residential area resulting from the rezoning to R4 High Density Residential and having considered the evidence of Mr Newbold and Mr Smith I am satisfied that the Proposed Development is compatible with the existing character for the reasons given by Mr Smith, namely the nature of the Site being a narrow site, the impact of the street tree and front set back landscaping means that the mirror reversal would not make a significant difference and is therefore unnecessary. On balance, there is insufficient evidence to justify a proposal to mirror reverse the Proposed Development in order to not affect or impede the existing local character.

Is the Proposed Development compatible with the desired future character of the local area notwithstanding some local controls not being complied with? (contention 2)

  1. The Respondent contends that the proposed boarding house is not compatible with the desired future character of the local area as required by cl 30A of SEPP ARH due to its various non compliances with the local controls.

  2. As mentioned earlier, the town planners in this respect disagree about what the controls say about the desired character and it is the key issue in dispute between the town planners. (Transcript, page 21 at para [1]-[3])

  3. The Respondent submits that the desired character is shaped by the following controls:

  1. Firstly, the Collett Park Precinct desired future character statement in clause 4.1.2 of PDCP refers to “new developments with landscaped settings that reinforce existing street trees”.

  2. Secondly the desired character is shaped by the maximum building height contained in the PLEP which is 11m. (Particular b(ii) Contention 2 – cl 4.3 PLEP)

  3. Thirdly, the building envelope controls (PDCP clause 5.1.4) set out in Table 3.1.3.7 of PDCP (folio 230 Respondent’s Bundle of Documents, Exhibit 2) shape the desired character and there are two controls that the Proposed Development does not complied with, namely, minimum deep soil zone and minimum landscaped areas being controls that are relied on by the Respondent to say that this development does not meet the desired future character. The building envelopment control requires a deep soil area to be a minimum of 30% of the entire site and the calculation agreed between the experts is that the deep soils provided in the Proposed Development is 21.9% of the Site, or a little over 8% shortfall. The building envelope control requires a landscaped area to be a minimum area of 40% and it is agreed between the experts that the Proposed Development provides a landscaped area of 33% or a shortfall of 7%. (particular b(iv) 4th and 5th bullet points, contention 2)

  1. Addressing firstly the Collett Park Precinct desired character statement, I am satisfied that proposed Condition of consent number 6 referred to above adequately addresses the Collett Park Precinct clause 4.1.2 PDCP desired future character statement that the Proposed Development will be a new development with a landscaped setting that will reinforce existing street trees.

  2. Secondly, in relation to the 11m maximum building height development standard in cl 4.3 of the PLEP, I will deal with this in the consideration of the cl 4.6 written request seeking to justify the contravention of the maximum building height development standard below. In any event, in the context of my consideration of compatibility as required by cl 30A of the SEPP ARH, I note that the height of the Proposed Development is 13.38m and that there was evidence given as to the existing approved height of four storey buildings in the local area as follows (also shown in Fig 5 in Exhibit E, Cl 4.6 Variation Request):

  1. 13.65m    16-18 Collett Parade;

  2. 12.9m      12-14 Collett Parade; and

  3. 14.01m   8 – 10 Collett Parade.

  1. Thirdly, I consider the evidence regarding the specific building envelope controls of deep soil zones and landscape area. The parties agree that the deep soil zone and landscaped areas for the Proposed Development do not comply with the PDCP building envelope requirement. The agreed numerical non compliance with the PDCP building envelope is set out in the Supplementary Planning JER at [16]-[17] (Exhibit 3) as follows:

  1. 21.9% of the Site is deep soil zones (rather than 30% of the Site); and

  2. 33% of the Site is landscaped areas (rather than 40% of the Site).

  1. The town planning experts agree that the Proposed Development satisfied cl 29(2)(b) of the SEPP ARH as the front setback landscape treatment is compatible with underdeveloped and developed sites along Collett Parade, however, Ms Mehrtens draws a distinction between the streetscape for the purposes of landscaped areas under cl 29(2)(b) and character of the local area under cl 30A of the SEPP ARH saying that “landscape treatment is a discrete consideration and is not to be used interchangeable with character of the local area”. (Supplementary Planning JER at [15]). I note that Ms Mehrtens is the only expert across the town planning and urban design disciplines to express a concern as to compatibility of the Proposed Development with the desired future character.

  2. The Applicant refers the court to Drawing 19 in Exhibit A which I note is the same as Figure 6 in the cl 4.6 written request and I reproduce it below:

  1. The Applicant submits that the effect of cl 29 of the SEPP ARH is that an application for a boarding house on this site must not be refused:

  1. On the grounds of density or scale if the floor space ratio is less than 1.3:1; and

  2. On the grounds of landscaped area if the landscaped treatment of the front setback area is compatible with the streetscape in which the building is located.

  1. The jurisdictional requirement of cl 30A of the SEPP ARH is for the consent authority to take into consideration whether the design of the development is compatible with the character of the local area and that unless this compatibility of design is taken into consideration the consent authority must not grant consent.

  2. In accordance with cl 30A of the SEPP ARH, I have considered the Proposed Development as a whole and although I accept that there are numerical non-compliances with 2 building envelope controls, namely, deep soil zone and landscaped areas, I am satisfied that the design of the Proposed Development is nevertheless compatible with the desired future character. I have formed this state of satisfaction as to compatibility having considered all the evidence before me in particular, the nature of the Site being an isolated site, the fact that the local area is in a state of transition to an R4 High Density Residential Area and the useful comparison of the Proposed Development depicted in Drawing 19.

  3. Below I have considered the cl 4.6 written request to justify the contravention of the maximum building height development standard and I am satisfied that the contravention is justified in accordance with cl 4.6 for the reasons given below.

  4. I am satisfied that I have taken into consideration whether the design of the development is compatible with the character of the local area and I conclude that the Court is not prevented by cl 30A in granting development consent to the Proposed Development.

Maximum height development standard cl 4.3 PLEP – (contention 3)

  1. I will now undertake the review of the cl 4.6 written request prepared by Anthony Betros (Exhibit E) seeking to justify the contravention of the 11m maximum building height development standard provided for in cl 4.3 of the PLEP. The height of the Proposed Development is 13.38m. The Respondent submits that the Court would not reach the required opinions of satisfaction because the requirements of cl 4.6 are not met by cl 4.6 written request.

  2. I accept the Applicant’s submission that the principles concerning cl 4.6 are summarised in the decision of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13]-[18] and that there appears to be no dispute amongst the planners that the cl 4.6 written request satisfies every requirement of the clause, bar one, namely that there are sufficient environmental planning grounds to justify contravening the development standard.

  3. Clause 4.6(4) of PLEP requires the consent authority, in this case the Court, to be satisfied that the applicant’s written request adequately address the matters required to be demonstrated by cl 4.6(3) and that the Proposed Development is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

  4. It is helpful to set out the relevant test of cl 4.6(3) and cl 4.6(4) of the PLEP as follows:

4.6   Exceptions to development standards

…

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

  1. Contention 3 of the SOFAC is control driven but the difference between contention 2 and 3 is that contention 3 is heavily dependent upon the cl 4.6 variation request and the town planning evidence of the council’s expert to the effect that the cl 4.6 variation request doesn’t provide sufficient environmental planning grounds. (Transcript 13 May 2021, page 22 at para [30]).

  2. The evidence from Ms Merhtens is as follows:

“I am satisfied that there has been demonstrated that the proposal meets the objectives of the height and zone.” (Transcript 14 May 2021, page 69 at para [5])

  1. I have considered the development standard objectives, which I set out below, in the context of Ms Merhtens opinion and the cl 4.6 written request at pages 10 to 12 and I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and I am satisfied pursuant to cl 4.6(4)(b) that the Proposed Development is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

  2. The dispute between the parties during the hearing remained whether the cl 4.6 adequately demonstrates that there are sufficient environmental planning grounds (cl 4.6(3)(b) and 4.6(4)(a)). Ms Mehrtens agrees that the only issue she has with the cl 4.6 written request is that there are not sufficient environmental planning grounds to justify contravening the maximum building height development standard. (Transcript 14 May 2021, page 69 at [15]) Ms Merhtens relies on the table on page 14 in the Planning JER and her conclusion that there are not sufficient environmental planning grounds to justify contravening the development standard.

  3. During the hearing Ms Mehrtens accepts that in substance the contravention is the fourth storey that effectively permits the communal open space and the manager’s residence adjacent to that on the top floor. (Transcript 14 May 2021, page 70 at [5]). The environmental planning grounds relied on in the cl 4.6 written request to justify the contravention were explored with Ms Merhtens and she agreed that the following are environmental planning grounds:

  1. The height is associated with bonus floor space that the SEPP ARH permits, which promotes affordable rental housing however Ms Merhtens takes issue with ‘affordable housing’ (Transcript 14 May 2021, page 71) – see also page 78 at [50].

  2. The Site is sloping away from the street in topography (Transcript 14 May 2021, page 79 at [10]) and Ms Merhtens accepts that “it could be an environmental planning ground that the slope of the site would justify contravention but in this case, I don’t believe that the slope of the site is sufficient, particularly in relation to where the additional height is located, to justify contravening the development standard.” Transcript 14 May 2021, page 80 at [46]. Although the front level is recessed, Ms Merhtens’ initial concern is that it’s not completely concealed from view (Transcript 14 May 2021, page 81 at [20]). However, Ms Merhtens then clarifies that her prime concern is not the appearance of the building from the street in relation to being able to see the fourth storey element. (Transcript 14 May 2021, page 83 at [15] and page 84 at [22])

  3. The next environmental planning ground explored with Ms Merhtens is the compatibility of the height with the three recently built or approved buildings across the road (Transcript 14 May 2021, page 82 at [25] and her evidence is that “those developments are distinct from the current proposal as they are all on amalgamated sites, have a far greater lot frontage and lot size that allows them to achieve compliance in other ways and justify their height exceedance in the particular circumstances of their case.” (Transcript 14 May 2021, page 82 at [45])   

  4. In relation to the environmental planning ground of there being an absence of any impacts such as on views or solar access (Transcript 14 May 2021, page 84 at [30]) Ms Merhtens concedes that “it might be a sufficient planning ground in conjunction with other grounds.” (Transcript 14 May 2021, page 84 at [45])

  5. Finally, the Applicant put to Ms Merhtens a proposition that the environmental planning ground of the Site being surrounded by the university car park with her answer immediately following below:

Question: “While it may not on its own be sufficient, you accept that it would be capable of being sufficient – it would contribute, if there were sufficient other grounds satisfying the Court that there were sufficient grounds, to justify contravening the standard?”

Ms Merhtens: “Yes, that is open to the Court”. (Transcript 14 May 2021, page 85 at [44]

  1. I have also considered the evidence of Mr Betros during the hearing which is as follows:

“the combination of flooding, topography, the consistency and compatibility of the build form and surrounds, an absence of impacts, the benefits of the provision for affordable housing in association with additional height and the particular site circumstance of the large vacant site, being the university land to the east and south, all combine to require a scaled development. And I also think the isolation of the communal room and the manager on the upper level is also a benefit associated with the additional height need to then formally be approved and combined with environmental grounds which, in my opinion, are sufficient.” (Transcript 14 May 2021, page 86 at [18]-[26])

  1. Having considered the evidence of Ms Merhtens and Mr Betros and the cl 4.6 written request, I am satisfied, pursuant to cl 4.6(4)(a), that the cl 4.6 written request has adequately addressed the matter required to be demonstrated by subclause (3)(b), namely that there are sufficient environmental planning grounds to justify contravening the development standard. Accordingly I conclude that I am satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the PLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the PLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Jurisdictional prerequisites

  1. In addition to the cl 4.6 written request, there are a number of other jurisdictional prerequisites that are required to be satisfied. I have reviewed these and conclude that the jurisdictional prerequisites are satisfied as follows:

  1. Included in the Respondent’s Bundle of Documents (Exhibit 1) at Tab 4 is the WaterNSW terms of approval as required by s 90 of the Water Management Act 2000.

  2. I am satisfied that cl 7 of the Statement Environmental Planning Policy No 55 – Remediation of Land has been appropriately considered because the Statement of Environmental Effects, filed with the Class 1 Application (Exhibit C) at page 28 provides that “the site appears to have been in residential use since its original subdivision and there is no evidence of any potentially contaminating uses occurring. It can be concluded beyond reasonable doubt that there is no likelihood of contamination on this site. No further consideration is therefore required under clause 7(1)(b) and (c) of SEPP 55.”

  3. State Environmental Planning Policy (Vegetation in non-rural areas) 2017, cl 5 is an instrument that applies to the City of Parramatta and the R4 High Density Residential zone. Clause 7(1) is a prohibition on the clearing of vegetation in the non-rural area however this is satisfied by the issue of a consent and therefore there is no need for a separate permit.

  1. Having found that the Proposed Development is compatible with the character of the local area pursuant to cl 30A of the SEPP ARH and having formed the requisite opinions of satisfaction that compliance with the maximum building height development standard is unnecessary and unreasonable, that there are sufficient planning grounds to justify the contravention of the maximum building height and that the Proposed Development is in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out I conclude that consent should be granted subject to the agreed conditions of consent.

Orders

  1. The Court orders that:

  1. Leave is granted to the Applicant to rely on amended plans being architectural plans Rev N Drawing 00 to 19.

  2. The Applicant is to pay the Respondent’s costs thrown away as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

  3. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the Parramatta Local Environmental Plan 2011 has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the Parramatta Local Environmental Plan 2011 and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

  4. The appeal is upheld.

  5. Development application reference DA/220/2020 being an application for development consent to demolish all existing structures and construction of a four (4) storey boarding house containing a total of 16 boarding rooms including one (1) manager’s room and provision of basement car parking accommodating five (5) car spaces, including two (2) accessible parking spaces, four (4) motorcycle spaces and four (4) bicycle parking spaces at 13 Collett Parade Parramatta legally described as Lot 33 DP 35120 is approved subject to conditions of consent Annexure A

  6. Exhibit D is to be returned.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (344842, pdf)

Architectural Plans (12979860, pdf)

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Decision last updated: 22 September 2021

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Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118