Anthony Zaiter v Parramatta City Council

Case •

[2006] NSWLEC 205

•

04/27/2006

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Anthony Zaiter v Parramatta City Council [2006] NSWLEC 205
PARTIES: APPLICANT:
Anthony Zaiter
RESPONDENT:
Parramatta City Council
FILE NUMBER(S): 11163 of 2004
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Setback from Woodville Road
Amenity of private open space
Solar access; and
Resident submissions
LEGISLATION CITED: Parramatta Local Environmental Plan 2001, (PLEP)
Parramatta Development Control Plan 2001, (DCP2001)
Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED: Finpac 88 Investments v Ku-ring-gai Council [2005] NSWLEC 634 Lloyd and Robinson (1962) 107 CLR 142;
Saab v Parramatta City Council [2003] NSWLEC 366
DATES OF HEARING: 27/03/2006
 
DATE OF JUDGMENT: 
04/27/2006
LEGAL REPRESENTATIVES: APPLICANT:
Mr P Clay, barrister instructed by
Mr P Saab, solicitor
SOLICITORS:
Macquarie Lawyers

RESPONDENT:
Mr C T Drury, solicitor
SOLICITORS:
Phillips Fox


JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

27 April 2006

11163 of 2005 - Anthony Zaiter v Parramatta City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Parramatta City Council (the council) to refuse a development application to demolish four (4) existing dwelling houses and ancillary structures, to remove trees, to erect a four-storey mixed-use development comprising thirty (30) residential units; one retail unit; four (4) commercial units, over a two (2) levels of basement carparking and to strata subdivide the completed development at Lots 82-85 (inclusive), DP 128591, being Nos 190-196 Woodville Road, Merrylands.


2 I visited the land in company with the parties on the morning of the first day of the proceedings. Local residents gave evidence on site.


3 I have concluded that the application should succeed, as it is a development that is permissible under the previous planning controls that would be saved if proposed amendments are made to the planning regime, its position on the site is satisfactory and provides sufficient separation with the low-density residential zone to the west.

The land

4 The land is situated on the corner Woodville Road and Claremont Street. The land is rectangular in plan with a frontage to Woodville Road of 64.01m and a frontage to Claremont Street of 33.46m. The area of the land is 2,428m2.


5 The land has a fall from the southwest to the northeast of about 1,500mm and 800mm from the southeast boundary to the northeast boundary. Two significant trees are located at the rear of the land. There are also five (5) significant Eucalypt street trees within the Claremont Street verge.


6 The existing structures comprise four (4) fibro dwelling houses, between 30 and 50 years old and a number of small outbuildings including sheds and garages.


7 There is a mix of single-storey dwellings and some two-storey dwellings along Claremont Street, with a mixed-use development currently under construction across the other side of Woodville Road. The land is immediately to the south of the Granville Showground.


8 The Merrylands Town Centre and railway station are located about 1km to the northwest within walking distance of the land.

Relevant planning controls

Parramatta Local Environmental Plan 2001, (PLEP)

9 Under the provisions of the PLEP the land is within Zone No 10 - Mixed Use and the proposal is permissible with consent.

Draft Parramatta Local Environmental Plan 2001, (DLEP)

10 Mr Moody the Court-appointed town-planning expert, in reference to a draft LEP2001 in Issue 2 he sought confirmation of the council’s solicitors as to the status of the DLEP and on 18 January 2006 was informed:

      In relation to the draft LEP, please note that Council has been informed by the Department of Planning that it does not support the draft LEP.

11 Mr Moody concluded that the DLEP should not be given significant weight, presumably as it would not be ‘certain and imminent’.

Parramatta Development Control Plan 2001, as amended (DCP2001)

12 On 18 October 2004, the council had resolved to exhibit draft amendments to the DCP2001 relating to development within the Mixed-Use 10 zone along Woodville Road. The proposed changes to the DCP2001 were exhibited from 27 October 2004 to 25 November 2004 and were adopted on 13 December 2004 and would limit the floor space ratio, FSR to 0.7:1 and a maximum height to three storeys, and 10.5m, [Note: Exhibit 6]. There is a difference of opinion between the parties as to whether the original DCP2001 or the amended DCP2001 should apply to the present application.


13 The council’s solicitors notified the applicant in a letter dated 18 January 2006, that:

      In relation to the DCP, by resolution dated 13 December 2005 Council adopted amendments to the DCP including amendments to Parts 5.7.2 and 5.7.3 of the DCP. It was also resolved that the amendments were to apply to development application submitted on or after 27 October 2004. …The original application the subject of these proceedings was lodged on 29 July 2004, and consequently the DCP provisions prior to the amendment apply.

14 The original DCP2001 specified a maximum FSR for Mixed-Use development along Woodville Road as 1.5:1 and a maximum height was four storeys. The present application was lodged with the council under this original DCP2001. The parties agreed that the amended DCP2001 should be taken into account in order to better understand the likely future development of land nearby.


15 However, in a letter dated 18 January 2006, the council's solicitors indicated:

      …our submissions to the Court will include that the Court should have regard to the current planning instrument and that this development application must be assessed with reference to its facts and circumstances and its of consideration under s 79C of the Environmental Planning and Assessment Act 1979 .

16 Given that approach the relevant clauses of the amended DCP2001 are:


· Landscaping and soft soil (cl 4.1.7),


· Safety and security (cl 4.3.2),


· Access for people with disabilities (cl 4.3.3),


· Vehicular access parking and circulation (cl 4.3.5),


· Streetscape (cl 4.4.1),


· Building form (cl 4.4.2),


· Building design and appearance (cl 4.4.3),


· Landscape and open space (cl 4.4.6), and


· Specific controls for mixed-use development along Woodville Road (cl 5.7.3).

17 The objective under the amended DCP2001 for Woodville Road is, [Note: Exhibit 5, Tab 2, cl 5.7.3 and Exhibit 6]

      Woodville Road: All development within the mixed-use (10) zone along Woodville Road is required to be consistent with the desired future character as described below. The numerical controls have been identified in order to promote development that achieves the outcome as described in the desired future character described below.
      Desired future character: The Zone 10 Woodville Road corridor will be characterised by development that acknowledges the role of Woodville Road as an arterial gateway into the City of Parramatta. Future development will act as a buffer between the noise and traffic movement of Woodville Road and lower scale residential development to the rear. In providing this, however, new development will strike a balance between defining the corridor and achieving a transition to the residential areas to the rear. At this interface, levels of amenity and enjoyment of adjoining land and not to be significantly disrupted.
      The visual quality of the corridor will be improved by increased emphasis on landscaping that softens the harsh Woodville Road environment, contributes to the greening of the Woodville Road streetscape and adds to the amenity of the development proposed. A landscaped setting will be achieved by the provision of plantings within all setback areas.
      The corridor will provide for a mix of uses that are compatible with the residential nature of adjoining areas. New development that occurs here will acknowledge that adjoining land may not be redeveloped for some time and will be designed to minimise impacts on the amenity of such adjoining land/development. The width of facades will be limited to provide a balance in the presentation are built form and landscaping in the streetscape and avoid wide unbroken building facades.
      New development will incorporate high levels of internal solar access, acoustic amenity and privacy.
      Future development will provide was safe and comfortable environment for pedestrians. Vehicular access, loading and unloading areas are to be carefully designed, sited and managed to ensure higher levels of safety. Where possible, car-parking areas should be directly accessed via roads other than Woodville Road.

18 The proposed development is subject to the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development, (SEPP65).

The proposal and its history

19 The original development application No 942/2004 was lodged with the respondent council on 29 July 2004. During discussions between the parties, prior to the hearing, the proposal has been amended a number of times.


20 The four-storey mixed-use development proposal would now provide for:


· a basement with car parking on two levels and bicycle storage with vehicular access of Claremont Street;


· four commercial units and one retail premises on the ground floor;


· communal open space at ground level in the western part of the land;


· three residential floors with 30 units; and


· common open space and courtyard area at podium level at the first floor.

21 According to the amended statement of basic facts prepared by the council the proposal now would provide a varied front boundary setback to Woodville Road of around 1.4m to 3.3m, a northern boundary setback to Claremont Street of nil to 2.2m, a setback to the southern side boundary setback of 2m, and a rear boundary setback to the western boundary of 14.4m to 23.4m.


22 As agreed between the parties during the hearing the proposal now would have a floor space ratio, (FSR) of 1.32:1.


23 The proposal is not for integrated development.

Notification

24 The application was notified to nearby owners and occupants from 3 August 2005 to 24 August 2005 and the council received eight (8) resident submissions, objecting to the proposal.

The council’s decision

25 On 9 September 2004 council officers, under delegated authority of the council refused the application for the following reasons:


(i) The proposal does not comply with the requirements of SEPP 65 and Clause 50 of the

Environmental Planning and Assessment Regulations 2000.


(ii) The Statement of Environmental Effects submitted with the application has not been submitted in accordance with Schedule I of the

Environmental Planning and Assessment Regulation 2000. Consequently the consent authority is not able to ascertain the full extent of the environment impact of the development as required by Schedule 1 of the Environmental Planning and Assessment Regulation 2000.


(iii) The upper floor plans do not detail what the proposed setbacks are in relation to the property boundaries preventing a proper environmental assessment of the application.
(iv) There are significant landuse conflicts between the commercial and residential components of the development, which is contrary to Section 5.7.3 of

Parramatta Development Control Plan 2001.


(v) The vehicular ramp to the basement car park does not comply with the requirements of Australian Standard AS2890.1-2003.
(vi) The plans submitted do not demonstrate that the proposal provides the required number of carparking spaces as outlined in Section 4.3.5 of

Parramatta Development Control Plan 2001.


(vii) The provision of elements and fixtures including playground equipment, water features and pathways as proposed in the site's required soft soil zone, do not comply with the soft soil zone requirements outlined in the glossary of

Parramatta Development Control Plan 2001.


(viii) The plans submitted do not demonstrate that the proposal complies with the solar access controls outlined in

Parramatta Development Control Plan 2001.


(ix) The proposal does not provide the required private open space areas to each unit as outlined in

Parramatta Development Control Plan 2001.


(x) The proposed landscaping plan has not been completed in accordance with the requirements of

Parramatta Development Control Plan 2001.


(xi) The application fails to outline how the proposal addresses the noise and vibration impacts to the development generated by traffic along Woodville Road.
(xii) The application does not detail where domestic and commercial waste will be stored or how they will be managed.
(xiii) The proposal is contrary to 'Safer by Design' principles.
(xiv) Disabled access from street level as well as disabled toilet facilities have not been provided to the commercial tenancies on the site which is contrary to the requirements of Australian Standard AS1428.1.
(xv) The proposal is contrary to the public interest.

The hearing
26 The appeal was filed on 27 September 2004.
27 On 7 March 2005, the Court granted leave for the applicant to amend the development application by filing and serving an amended statement of environmental effects and a SEPP 65 Design Verification Statement. Leave was granted until 1 April 2005.
28 On 25 May 2005, the applicant submitted:
· Architectural plans and elevations prepared by Architex.
· A contour survey prepared by Gary Edwards and Associates Pty Ltd.
· A Statement of Environmental Effects and SEPP 65 Design Verification Statement prepared by Architex.
· On 6 June 2005, Council requested the submission of the following:
· A photomontage of the development.
· A 3D Block model of the development.
· A Traffic Report.
· An Acoustic Report
· Additional sets of the amended plans and elevations.

29 On 4 July 2005, the applicant submitted the following:


· Architectural plans and elevations prepared by Architex.


· A Noise Impact Assessment for Commercial/Residential Development prepared by Rodney Stevens of RSA Acoustics dated June 2005.


· A photomontage of the development.


· A Traffic and Parking Statement prepared by Craig Hazel of Traffic Solutions Pty Ltd dated 27 June 2005.

30 On 19 July 2005, the amended application was presented to the Parramatta Design Review Panel (DRP) in accordance with the provisions of SEPP65. The DRP made the following comments and summary points for the consideration of the applicant, [Note: Exhibit 5, Tab 15, pp 2-5]:


· Context: This proposal raises the same issues as other recent proposals on Woodville Road including significant noise impacts and difficulties associated with providing mixed commercial and residential buildings in a relatively low density landscaped setting. Whilst the proposal demonstrates an adherence to the DCP at lodgement date it is felt that the adoption of the positive points of the current DCP will significantly improve the outcome, particularly relative to the setback from Woodville Road and the commercial uses on the site.

          The panel notes that even a partial adoption of the setback requirements and some reduction in the amount of commercial space would lead to a more appropriate form of development. Any setback from Woodville Road would need to be at least 6 metres (preferably 9 metres), to be effective and commercial activity need only be provided in the form of a local corner shop, if it is to be provided at all. Another option might be to provide commercial uses as an extension to the proposed residential units such as home offices or small studios.
          The panel considers that any residential accommodation that is only 2­3 metres from a major arterial road as proposed is unacceptable.

· Scale and built form: Although the height of the building is not considered to be a major problem the level of resolution to the overall built form is not acceptable. Two key built form issues arise from the design. The need for a podium to overcome BCA requirements for 3-storey walk-up and, the lack of any setbacks to Woodville Road.

          The concrete podium level does not work as open space. The ground level open space is isolated from the residential component of the building. The area behind the commercial component is unacceptable as circulation/service space and as the main pedestrian access from Claremont Street.
          The plan form provides some relief along Woodville Road by way of stepping in and out and with projecting and recessed balconies. However the facade lacks consistency. This is exacerbated by the corner treatment. See further comments in "Aesthetics" below.
          The lack of any significant setbacks to Woodville Road prevents the provision of suitable landscaping and in particular substantial tree planting to benefit both residential and commercial areas.
          The panel considers the adoption of positive aspects of the current DCP would ensure a better streetscape outcome, in particular with regard to Woodville Road and the property to the south of the development.
          A significant reduction in the floor area of the commercial component would enable better integration between ground level open space and residential areas. The deletion of the podium at first floor level would assist in providing more acceptable solution to the circulation and entry sequences.
          A greater setback along the southern boundary should also be provided to improve the amenity of the property to the south.
          Density: The proposed density may be achievable however in its current form the number of units and the scale of the commercial component is creating a poor outcome.
          Resource, energy and water efficiency: The orientation of the units to provide west facing living areas for maximum sunlight access and cross ventilation is considered appropriate given the configuration and orientation of the site and its location on Woodville Road. However, due to noise impacts from Woodville Road the development will need to rely substantially on air conditioning to avoid opening of windows.
          This again points to the importance of providing a substantial setback from Woodville Road. Substantial lighting will be required for the covered areas behind the commercial component for safety of residents. No details were provided with respect to any water or energy saving strategies.
          Landscape : Landscaping is provided at first floor podium level in the form of tiled private courtyards and a common area. The common area is essentially a passage providing access to the individual units from the lift and stairs. The common area is poorly planned lacks design clarity as sequences of spaces. It incorporates a number small level changes requiring excessive use of ramps and stairs. The private courtyards are also limited in size and will only accommodate small plants and shrubs.
          The separation of the ground floor and residential component is unacceptable and can be avoided with a more suitable design model.
          The location of the driveway results in the removal of a significant Brushbox Tree on Claremont Street. The driveway should be re-aligned to ensure the retention of the tree.
          Amenity: There are a number of amenity issues as discussed above including noise from Woodville Road. Poor connection to rear communal open space needs to be reconsidered. Poor pedestrian entry zones. The covered area behind the commercial component is unacceptable. It lacks amenity, is unsafe and relies on skylights for natural light.
          Individual unit designs are poor: For example units 1, 3 and 5 include generous terrace/balcony space outside the bedrooms and only limited balcony space outside the living room. Units 13 to 18 include kitchens in a primary location reducing the external wall opening and balcony sizes to the living areas by half.
          Safety and security: The ground level landscaping at the rear is isolated from the residential component and unless carefully designed and managed could become a very unsafe area for the residents. A shared entrance into the development for commercial users and residents would increase passive surveillance of the rear.

          Social dimensions: The proposed mix of units and unit sizes is acceptable. See Amenity and landscaping issues regarding design of communal spaces.

31 Mr J A Moody, consultant town planner was the Court-appointed expert.


32 Mr Adam Cowell, prepared the statement of basic facts dated 29 October 2004, in respect of the original application.


33 On 15 September 2005, Ms Amanda Faulkner, Team Leader, Development Assessment, Parramatta City Council, also prepared a statement of basic facts on the amended development application.


34 Others who gave evidence on site, on behalf of the council were, [Note: Exhibit 1]:


· Mr B Gray, resident of No 31 Park Street, Merrylands;


· Mr M McMullen, resident of No 34 Constance Street, Guildford;


· Mr B R Benson, resident of No 321 Woodville Road, Merrylands;


· Mr B Zappavigna, resident of No 108 Farnell Street, Merrylands;


· Mr R Del Pizzo, resident of No 55 Cowper Street, Granville;


· Mrs E Harrison, resident of No 10 Lumeah Street, Merrylands;


· Mr S Eid, resident of No 13 Lumeah Street, Merrylands;


· Mrs V Rutledge, resident of No 8 Lumeah Street, Merrylands;


· Ms R Azzi, resident of No 1 Patten Street, Merrylands;


· Mr J Harrison, resident of No 10 Lumeah Street, Merrylands; and


· Ms K Oberman, resident of No 2 Lumeah Street, Merrylands.

35 Concerns raised by these residents included: inappropriate zoning; traffic noise and risk of cardio-vascular disease and even cancer from fumes for people living in the development; privacy concerns; overshadowing; tenants; building too high and too close; building abutting the park and should be lowered; setback from dwellings in Lumeah Street should be greater; stormwater and basement flooding.

The issues

36 On 23 November 2004 the council filed an amended statement of issues.


1. Permissibility of Development - SEPP 65 - The design verification statement that has been submitted is not in accordance with the provisions of

State Environmental Planning Policy No 65. The proposal has not been designed by a Registered Architect, and does not address the 10-design quality principles set out in SEPP 65. In these circumstances the Council and Court on appeal does not have power to grant consent.

          (Clause 50(1A) of the Environmental Planning and Assessment Regulation 2000 ; cl 29(1A) of SEPP 65)
          (Sch 1, Pt 1, cl 2(1) of Environmental Planning and Assessment Regulation 2000 )
          (Clauses 9-12, 14, 15, 17, 18 of SEPP 65; Objectives 1(c), 1(d) of Zone 10 of Parramatta LEP 2001; Objectives (a), (c) and (d) of cl 4.4.2, Objective points 1 & 3 of cl 4.4.3, and cl 5.7 'Building Form' criterion of Parramatta DCP 2001)
          (Draft Amendment to Parramatta DCP 2001 - Exhibited from 27 October 2004 to 24 November 2004; Draft LEP 2001 still to be exhibited)
          (AS 2890.1-2003; cl 4.3.5 of Parramatta Development Control 2001 )
          (AS1428.1; cl 4.3.3 of Parramatta Development Control 2001 )
          (Clause 7 of SEPP 65; cl 5.7.2 of DCP 2001)
          (Clause 4.1.7, Glossary and Appendix 4 of DCP 2001)
          (The first two dot point objectives of cl 4.3.2 of DCP 2001)
          (Clause 2 (Objectives) of SEPP 65; cl 4.4.6 of DCP 2001)
          (Clause 4.1.1 of DCP 2001 (Environmental Performance Criteria -'Siting of the Building and Open Space')
          (See issues 1 and 2 above)

16 Conditions - The Respondent submits that only that part of Issue 11 concerning the required soft soil areas could be dealt with by way of conditions of consent.

37 During the proceedings the contested issues that crystallised out were: private open space; setback from Woodville Road; solar access and the resident’s submissions.

The evidence and findings

38 Mr Clay, for the applicant, submitted that having regard to the relevant planning controls, the Court would find the proposal acceptable. He referred positively to the approach taken by the Court-appointed town-planning expert, Mr Moody, who was prepared to give some weight to the council-adopted draft DCP2001 in Exhibit 6 and submitted that it would have been open to the council to require compliance with the new development control plan however; the council choose to include ‘savings’ provisions in that instrument that required the present application to be considered under the old planning regime. He submitted that the Court however, should not ignore the later provisions. I accept that submission and favourably note the decision of Senior Commissioner, Dr J Roseth with Commissioner Brown in Finpac 88 Investments v Ku-ring-gai Council [2005] NSWLEC 634 at para 11 that the amended DCP2001 should be considered as “…it gives an indication of the future character of surrounding development on similarly zoned land.” Thus I accept that the likely future mixed-use development along Woodville Road would be limited in height to three storeys and setback around 9m from the road.


39 Mr Clay submitted the present development “…[d]oes not push the envelope and the 1.36:1 floor space ratio, (FSR), [is reasonable].” He submitted, “…[f]actoring in the amendments [to the architectural plans], we are creating a building that because of its positive features, can sit comfortably.”


40 Mr Drury, for the council, submitted that if the Court were to accept the evidence of Mr Moody, then “…one is also left with his serious reservations.” He submitted that there is no dispute that the land is zoned for the purpose, however, there is “…no right to a development consent.” [Note: Lloyd and Robinson (1962) 107 CLR 142].


41 Mr Moody stated, [Exhibit 8, pp43-5]:

      The current application appears to accord with the previous provisions of DCP 2001 applicable at the time of lodgement of the current development application. This view is supported by the comments of the design review panel at its meeting on 19 July 2005, in which the panel stated that the proposal demonstrates an adherence to the DCP at lodgement date.
      The current amended provisions of Parts 5.7.2 and 5.7.3 DCP 2001 clearly contemplate a smaller building form with a greater setback to Woodville Road. Nonetheless, it is my view that the current proposal achieves satisfactory compliance with the objectives of the desired future character of Woodville Road referred to in Part 5.7 of the current amended DCP 2001 provisions. Furthermore, I consider that the proposed development has architectural merit (subject to some recommended changes) and will make a positive contribution to the streetscape. On this point, I particularly note the fact that the subject site is on a corner with the main arterial road to the east and a wide local road and park to the north. Based on a number of authoritative planning publications these factors would justify a more defined build age with a larger building envelope.
      For the reasons outlined in the statement, I do not consider it necessary to require an increase setback to Woodville Road as required under the current amended DCP 2001 provisions. Furthermore, I consider that the provisions of retail/commercial spaces at ground level will provide an active retail ground floor frontage with the mixed-use character the development consistent with the current objectives for the mixed-use zoning of the subject site.
      In conclusion, I support the current amended proposal subject to resolution of the concerns expressed in the statement of evidence.

42 Against this background I have considered the remaining contested issues.

Setback from Woodville Road

43 Under the provisions of the amended DCP2001, the setback to Woodville Road is required to be 9m with 50% of the ground floor at nil setback for non-residential uses.


44 The SEPP65 Design Review Panel, (DRP) sought to increase the setback of the proposal to Woodville Road to at least 6m and preferably 9m and to reduce the non-residential uses to a corner shop with a nil setback.


45 Mr Clay submitted that the applicant had struck an “…appropriate balance, between front and back setbacks and [this setback would be] consistent with the controls.”


46 Mr Clay submitted, it is important in the design, to distinguish between the residential 2(b) zone to the west and the higher density residential zone along Woodville Road and to provide as much separation as possible. He submitted there would be change of scale but as proposed that would be not unreasonable given the proposed separation. Such a separation he submitted would be “…a positive feature and although not generous would be adequate for the location.”


47 Mr Moody pointed out that an increase in the setback to Woodville Road would be likely to result in a decrease of the rear setback to the residential properties to the west and adverse amenity impacts would flow to the residential properties to the west.


48 Mr Clay submitted that there would be a significant separation of around 20m between the residential properties to the west, in Lumeah Street, and the western elevation of the proposal. He submitted that such a separation would provide sufficient area of the site for deep soil landscaping. Such deep soil landscaping would provide screening vegetation to ameliorate impacts of bulk and scale.


49 I consider the recommendation of the DRP that the proposal should be setback on Woodville Road at least 6m is not essential and with a 20m setback from the western wall to the common boundary with the residential properties to the west, I consider an appropriate balance has been struck between the front and rear setbacks. The proposal would be a more urban rather than suburban design solution to Woodville Road providing only limited landscaping along Woodville Road with a vegetated buffer between the four-storey proposal and the low-density residential area in Lumeah Street to the rear. It is a different concept to that sought by the DRP but one that is equally valid under the controls. I would not refuse the application for reason of its location on the land.


50 I am also satisfied that were the land to the south developed for mixed-uses under the amended DCP2001 a suitable transition of building form would be achieved.

Amenity of east-facing private open space

51 Mr Drury submitted that the amenity, of the eastern ground floor private open space and of the eastern side balconies on the upper floors of the proposal, affected by Woodville Road traffic noise and fumes, would be poor. He submitted the views of nearby residents, who experience the impact of the traffic on Woodville Road daily, and who are the “…eyes and ears [of the Court]” support this submission. He submitted that “…[o]ne needs to deal with the land as one finds it.” Despite the proposed development being permissible in the zone, he submitted “…[t]his is not an innovative solution, it is ‘vin ordinaire’,” on an east/west-facing block of land.


52 I accept the submission of Mr Clay that despite Woodville Road being heavily trafficked with its attendant fumes and noise, the council has zoned the land on either side for high-density residential development, and one must assume that the council zoned the land in the full knowledge of the local conditions.


53 I also accept the submission of Mr Clay and the evidence of Mr Moody that “…should the Court accept the evidence of the applicant’s [acoustic] consultant there is no justification for an increased setback on acoustic grounds.” Mr Moody referred to the range of acoustic measures in the RSA Acoustics Noise Impact Assessment Report dated June 2005, [Note: Exhibit 5, Tab 14]. To meet the internal noise acoustic design goals double-glazing was specified for the east-facing bedrooms and thickened glass to the east-facing living/dining rooms. There would be likely a need to mechanically ventilate the Woodville Road facing rooms. These requirements would be a condition of consent.


54 The balconies facing onto Woodville Road would be exposed to noise and fumes however; as most of the proposal’s east-facing balconies off the bedrooms it is expected that this outdoor private open space would be used only intermittently.


55 The Woodville Road setback, even if heavily landscaped, would do little to attenuate traffic noise, and an acoustic barrier such as that proposed as part of the development would be more effective for that purpose.


56 I accept the evidence of Mr Moody that there have been many approvals along Woodville Road and the area is undergoing radical transformation, and that this proposal meets the objectives of the original DCP2001.


57 Given that the zoning of the land permits the type of development proposed and noise attenuation methods are proposed, I would not refuse the application for reason of its proximity to Woodville Road or the amenity of the east facing private open space.


58 The fact that the council has seen fit to downzone the land on either side of Woodville Road in its most recent planning instrument, in the future would go some way to reducing the number of dwellings located along the arterial road, however noise and fume management would still be required for the rooms of those dwellings facing onto the road.

Solar access

59 The council claimed that habitable rooms of the adjoining dwelling to the south in midwinter would not receive 3 hours of sunlight between 9am and 3pm. This issue was not strongly pressed in the proceedings and it transpired that the council was more concerned about sunlight access to the living areas of the proposal.


60 Mr Drury submitted in this respect that the Court could “…accept a second rate development or it could require the applicant to go away and do it again.” He submitted that the Court should consider the issue of the western orientation of the proposal and the lack of solar access between 9.00am and 3.00pm.


61 I have carefully examined the solar access of the proposal and agree that the west facing rooms would be unlikely to receive three hours sunlight between the hours of sunlight on the midwinter afternoon to 3.00pm, however; this is an outcome of the orientation of the land. Given the density of the proposed complying development it would be difficult, if almost impossible, to provide units that do not face east and west. After 3.00pm in midwinter the west facing units would receive sunlight into the western facing rooms so although sunlight between 9.00am and 3.00pm would be limited I would not refuse the application for this reason.


62 The council’s position with respect to solar access was that the proposal would have unacceptable overshadowing impacts on the adjoining property to the south at when considered under cl 4.1.1 of DCP2001 and the environmental performance criteria such as siting of the building and open space. I would not refuse the application for reason of overshadowing to the south, as this is a consequence of the zoning of the land for mixed-use development.

Resident submissions

Height

63 Mr Drury referred to the concerns expressed by nearby residents for the four-storey proposal. He submitted that clearly the height issue has been a concern of the council and the development control plan has now been amended to limit height to a three-storey maximum. He submitted that the council has responded to the concerns of the residents and has amended the development control plan.


64 Mr Drury referred to the concerns of local residents including those to the rear of the development proposal in Lumeah Street, and in particular that of Mrs Oberman at No 2 Lumeah Street; Mrs Rutledge at No 8 Lumeah Street and Mr Harrison at No 10 Lumeah Street concerning for loss of morning sun and overlooking. He referred to the evidence that these residents make use of rear area of their homes, particularly in the mornings.


65 I am satisfied that the extent of overshadowing likely to be caused by the proposal has been addressed by the applicant in setting back from the western boundary of the land around 14m to 20m. At 9.00am in midwinter the shade of the proposal is shown within the land, [Note: Exhibit B, Drawing No DA14B]. Thus there would be no further overshadowing of the Lumeah Street properties than caused by the fence on the common boundary with the subject.

Overbearing impact

66 Mr Drury submitted that as was pointed out on the site inspection, the Court could appreciate their concern for the overbearing impact of the proposed development.


67 The area between the proposal’s western facade and the western boundary is capable of significant landscaping that would provide a visual screen to limit the over bearing impact.


68 I would not refuse the application for reason of overshadowing or overbearing visual impact.

Traffic

69 Despite the resident objector’s concerns for increased traffic flows in the area as a result of the proposal the council did not raise this issue.


70 The applicant prepared a traffic analysis by Mr C Hazell dated 27 June 2005, that concluded, “…the proposed development is acceptable in terms of driveway location, sight distance, traffic generation, car space dimension, ramp grades and ramp widths.”


71 I would not refuse the application for this reason.

Setback to the south

72 Mr Clay submitted that when the Court made its finding in Saab v Parramatta City Council [2003] NSWLEC 366 to approve that development the Court did not require any setback to the south. He submitted that there was no objection from the owner of the property to the south, and the proposal is respectful of neighbours and the Court would accept the evidence of Mr Moody that the proposal is satisfactory.


73 Mr Moody did suggest that the height of the proposal be reduced by one floor at the southern end in order to provide a transition in height.


74 If no reduction in height is imposed by condition, I am satisfied that there would be a satisfactory transition between the height of the present proposal and that of any new development to the south under the amended DCP2001 controls of three storeys maximum height.


75 The diagrams in Exhibit B, Drawing No DA14B, suggest that overshadowing would of No 198 Woodville Road would not be greatly improved by lowering the height of the proposal as suggested by Mr Moody. Thus I would not require any reduction in the height of the proposal to the south.


76 For the above reasons, the appeal is upheld.

Conditions

77 The conditions are those in Exhibit 7.

Orders
78 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 942/2004 lodged with the respondent council on 29 July 2004, to demolish four (4) existing dwelling houses and ancillary structures, to remove trees, to erect a four-storey mixed use development comprising four (4) commercial/retail tenancies on the ground floor and eight (8) x one-bedroom, twenty-two (22) x two-bedroom and three (3) x three-bedroom units on the ground, first, second and third storeys, over a two (2) level basement carpark and to strata subdivide the completed development at Lots 82-85, DP 128591, being Nos 190-196 Woodville Road, Merrylands is approved subject to Conditions 1 to 97 in Annexure A.

3. The exhibits except for Exhibits A, B, C, D, E, F, 1, 2 and 7 are returned.

S J Watts
Commissioner of the Court
sw

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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Cases Citing This Decision

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Cases Cited

3

Statutory Material Cited

3

Finpac 88 Investments v Ku-ring-gai Council [2005] NSWLEC 634
Lloyd v Robinson [1962] HCA 36
Saab v Parrmatta City Council [2003] NSWLEC 366