Bechara v Parramatta City Council

[2004] NSWLEC 737

Land and Environment Court

of New South Wales

CITATION:

Bechara v Parramatta City Council [2004] NSWLEC 737

PARTIES:

APPLICANT
Charbel Bechara

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10585 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Demolition of an existing building - construction of a new two-storey building

LEGISLATION CITED:

Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan

CASES CITED:

DATES OF HEARING:

23/11/2004

EX TEMPORE
JUDGMENT DATE :

11/23/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C Maley, solicitor
SOLICITORS
Maclarens

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

23 November 2004

10585 of 2004 Charbel Bechara v Parramatta City Council

JUDGMENT

1 This appeal is against council’s refusal of a development application for the demolition of an existing dwelling and construction of a new two-storey house at 16 Tennyson Street, Winston Hills. The subject site has an area of 557.4 sq m and contains an existing single storey dwelling house. There is a large camphor laurel tree in the backyard. The proposal involves the excavation for a basement garage, ground floor living area, first floor bedrooms, sitting room and bathrooms.

2 The main issues initially identified for the appeal concern the proposal’s compliance with the zone objectives, building bulk, streetscape impacts, compliance with the Winston Hills special character provisions, tree removal and objections concerning the loss of privacy, excessive bulk and scale of the building.

3 For the appeal the parties agreed to the appointment of Mr A Ludvik as the Court appointed expert for planning. Accordingly he has submitted a detailed assessment of the proposal based on the current planning controls. He concludes that this proposal merits conditional consent incorporating several conditions requiring minor design alterations to the upstairs windows in order to achieve reasonable privacy for neighbouring properties.

4 The proposal has also been subject to a number of assessments by council’s planning officers who also recommend conditional approval. This has resulted in council agreeing to consent orders for the proposal. Notwithstanding this a number of objections were made by the neighbours and they were given the opportunity to present their concerns at the site meeting. At the site meeting the parties agreed that the matter be completed by way of an on-site hearing.

Planning controls

5 For my consideration of the proposal I have firstly considered the planning framework. The site is within the Residential 2A zone under the Parramatta Local Environmental Plan 2001. This type of development is permissible with consent and cl 13(3) provides the consent is not to be granted unless council is of the opinion that development consent is consistent with the objectives of the zone in which it is to be carried out.

6 Associated with the LEP provisions is Parramatta Development Control Plan which contains detailed controls for development. Of particular relevance are the special precinct controls. They include the site within the Winston Hills Precinct where the identified character type is wide frontage ranch style houses.

7 The main challenge to the consent orders from the neighbours is that this proposed dwelling is too high and bulky in the context of the immediate neighbourhood. Also that it will create unsatisfactory privacy and amenity impacts. However Mr Ludvik has comprehensively addressed the relevant matters for consideration with respect to the zone objectives. Objective 1 relates to the enhancement of the amenity and characteristics of the established residential areas. In this regard he says that the proposal needs to be considered in terms of the general characteristics of the area and not only in terms of the characteristics of development on adjoining properties and consideration needs to be given to design future character where there is a likelihood of change.

8 Accordingly he says that the existing dwelling house on the land is small, having a gross floor area of some 110 sq m exclusive of car parking. Consequently it is reasonable to presume that there will be future demand to increase the extent of building and the inevitable consequence is likely to be a first floor addition or a new two-storey structure of the nature contemplated in this application. By reference then to the development standards for height and FSR contained in Parramatta LEP and other quantitative controls in the DCP he finds that the proposed house envelope is compliant.

9 He then considers the proposal on the basis that this area comprises an eclectic array of modestly scaled single storey houses constructed circa 1965 and larger contemporary houses containing two-storeys with parking under them. From this he concludes that in terms of the height the proposed building would not have any unacceptable impact on the character of the area, despite it being different to the height of adjoining dwellings.

10 Insofar as the proposed building will have a greater bulk than the buildings on surrounding property Mr Ludvik notes that the LEP provides a maximum FSR standard of 0.5:1. As this is a fairly common standard to which the proposal complies and furthermore does not, in his opinion create any undue and adverse amenity impacts he therefore considers that this proposal is consistent with objective 1A.

11 Objective 1B relates to encouraging redevelopment of low density housing forms where they do not compromise the amenity of surrounding residential areas or natural and cultural heritage of the area. In accordance with the reasons previously stated Mr Ludvik confirms that this matter should be considered on a reasonably broad based area rather than the immediate neighbouring properties of the development. On this basis he confirms objective 1B is satisfied.

12 Objective 1C then relates to ensuring that the building form is in character with the surrounding built environment. In this regard he assesses the proposal against the relevant DCP guidelines and forms the opinion that this objective is satisfied. From all of this, he concludes that the proposed building would not be antipathetic to the objectives of 1A, B, and C of the 2A Residential Zone.

13 Insofar as I accept the detailed assessment of the proposal’s numeric compliance, nevertheless I have also considered the neighbour’s submissions that greater weight should be given to the qualitative aspects of the DCP, particularly those that would require a lower form of building which is more compatible with the neighbouring single storey dwellings. Section 4.6 of the DCP refers to the special precinct controls applying to the site within the Winston Hills housing estate area where wide frontage ranch style lots are a particular feature. Section 4.4 deals with design elements and states that the aim of the built form controls is to ensure that the proposed development is of an appropriate scale to protect and enhance desirable aspects of the existing local character as reflecting the desired future character of the area.

14 Unfortunately there is no clear statement for this desired future character, although Appendix 7 indicates the council’s approach to the planning policies is to ensure that development is consistent with the existing area with the main elements being the subdivision pattern, brick and tile houses and the absence of front fences. The approach states that in respect of new houses:

“New houses must be brick construction with tiled roofs. In areas where single storey houses predominate new houses must retain the single storey scale of the streetscape and wall finishes should be similar to neighbouring houses.”

15 In my assessment of these controls it appears that some degree of change is recognised and that can be reasonably considered on a broader area basis as stated by Mr Ludvik, rather than just a comparison with the nearby adjoining dwellings. In this regard I accept Mr Ludvik’s opinion that a generally accepted planning principle in low density residential areas accepts a mix of one and two storey houses. I also accept Mr Ludvik’s conclusion that this proposed two-storey house incorporates the main elements as stated and is consistent with the housing styles in this general neighbourhood area, which in my opinion does not exhibit the traditional wide ranch type lots and dwellings where greater insistence may be required for maintenance of single storey dwellings to achieve consistency of style.

16 In support of this conclusion I have also noted the following council planning officer assessment regarding application of the DCP controls in respect of height and bulk and character of the area.

Tennyson Street consists of a mixture of single, split level and two-storey dwellings. In this regard the dwelling as proposed would not be inconsistent with the established height and scale of other dwellings in the area. The dwelling is of good design and satisfies the objectives and various controls relating to residential development within the Winston Hills special character area. The character of the area will be maintained by the achievement of setback, FSR and height control. The use of building materials will also ensure that the characteristics of the established built form are maintained.

17 As I have previously stated I accept the controls allow for some changes, particularly in this case where the existing single storey dwelling has a relatively small floor area of about 110 sq m representing an FSR of approximately 0.2:1 against the development standard allowing a maximum FSR of 0.5:1. However when additional floor space is proposed it should not introduce any unreasonable amenity impacts on neighbours. In this case I am satisfied that the further amendments to the upstairs bedroom windows by way of highlight windows and translucent glass results in reasonable privacy amenity. This takes into account the overlooking opportunities are from the upstairs bedroom window and the separation distances to the various outdoor activity areas on the adjoining properties which Mr Ludvik says comfortably exceed AMCORD recommendations.

18 Insofar as a number of other objections were made, I do not consider there was any compelling evidence presented which would result in the refusal of this proposal.

19 Regarding the removal of the camphor laurel tree, the Court is informed that under the council’s Tree Preservation Order the removal of this tree does not require consent. Mr Ludvik notes that this type of tree is often regarded as a weed and whilst it provides some visual and privacy amenity, nevertheless its negative aspects also have to be considered and on this basis, I accept it can be removed. However in doing so I note the applicant has agreed to provide extensive new landscaping including some advanced species which should contribute towards the enhancement of the area albeit after a period of establishment.

Conclusions

20 In summary then I am satisfied this proposal demonstrates reasonable compliance with and is consistent with the LEP objectives and provisions together with the DCP controls so as to allow the consent orders to be made. However I acknowledge that the presentation of the evidence identified some difficulties in reconciling the allowable numeric building envelopes with some interpretation of the qualitative controls but I am satisfied that the overall effect of the package of controls is to allow two-storey dwellings in this Residential 2A area, rather than to significantly restrict development to single storeys to match adjoining dwellings. In the ultimate I consider it reasonable to rely on the detailed assessment and conclusions of the Court appointed expert Mr Ludvik to grant the consent orders which is also consistent with the detailed assessment by council officers that I accept.

21 The Court orders by consent that:

1. The appeal is upheld.

2. Development application (DA 912/2002) for the demolition of the existing building and the erection of a two storey dwelling house at 16 Tennyson Street, Winston Hills, in accordance with the following plans:

3. Drawing No.	4. Dated
2002/6/1D	Jan 2003
2002/6/2DA	Jan 2003
2002/6/3D	Jan 2003
2002/6/4D	July 2004
2002/6/5D	July 2004
2002/6/6D	July 2004
2002/6/7D	July 2004
Landscape Plan LC1.2a	2 August 2004


be determined by the grant of development consent subject to conditions as set out in Annexure “A“.

3. The exhibits may be returned except Exhibits 1, 2, 7 and 8, which are retained on the Court’s files.

R Hussey
Commissioner of the Court
Nm/rjs