B & H Constructions v Parramatta City Council - [2006] NSWLEC 204

Land and Environment Court

of New South Wales

CITATION: B & H Constructions v Parramatta City Council [2006] NSWLEC 204

PARTIES:
APPLICANT
B & H Constructions
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 11181 of 2005

CORAM: Tuor C

KEY ISSUES: Development Consent :- s96 Application to modify consent for multi unit housing
works already constructed
whether substantially the same
whether attic a storey and impact on streetscape

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
State Environmental Planning Polcy No 1

CASES CITED: Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118 Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [1999] NSWLEC 251 ;
Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298;
1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

DATES OF HEARING: 02/02/2006 and 21/04/2006

DATE OF JUDGMENT:
04/24/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr J Strati, solicitor
Solicitors
Avendra Singh Strati & Kam

RESPONDENT
Mr A Galasso, barrister
Solicitors
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

24 April 2006

11181 of 2005 B & H Constructions v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Parramatta City Council (the council) of an application under s96 of the Environmental Planning and Assessment Act (EPA Act) to modify development consent 923/2002 at 718-722 Victoria Road, Ermington (the site).

2 Council approved the development application on 31 December 2002 to demolish the existing three dwellings and construct a multi unit housing development containing 22 dwellings above basement car parking.

3 The s96 application seeks to modify the consent to incorporate amended drawings. The main change, and the one in dispute between the parties, is the changes to the upper level (third floor storey).

4 The works proposed in the s96 application have been constructed, including the third storey. In accordance with the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240 a s96 application which relates to development that has been already carried out can be considered on its merits.

The site and its context

5 The site is on the northern side of Victoria Road at its intersection with Fitzgerald Road, Ermington. It is generally rectangular in shape with an area of 3726sqm, a frontage to Victoria Road of 61.09m and 57.07m to Fitzgerald Road. The site has a steep slope from the north to the south (Victoria Road). The multi unit housing development over basement car parking is constructed on the site but is un-occupied as no occupation certificate has been issued for the development.

6 Surrounding development includes a mix of housing styles and forms. Immediately to the north of the site are single storey weatherboard houses. Further to the north are detached one and two storey houses. Immediately to the west are single storey houses. Bartlett Park is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 204
Decision Date: 04/24/2006

CaseChat Overview and Summary

This case involves an appeal by B & H Constructions against the Parramatta City Council's decision to deem refusal of their application to modify development consent for a multi-unit housing development in Ermington. The primary issue was whether the changes to the upper level of the development would have an acceptable streetscape impact and if the development was substantially the same as the one originally approved. The Land and Environment Court of New South Wales heard the appeal on 2 February 2006 and 21 April 2006. The court found that the changes to the upper level resulted in the development appearing as a three-storey building rather than a two-storey building with attic rooms in the roof, which was inconsistent with the planning controls. The Court held that the additional storey resulted in a significant streetscape impact, and the bulk of the proposal was not consistent with the objectives of the zone. The Court also found that the other changes sought by the s96 application were generally acceptable either as proposed or with amendments; however, they could not be approved due to the significant impact of the changes to the upper level. The Court dismissed the appeal and refused the s96 application to modify the development consent.

Orders