Binet v Parramatta City Council

[2006] NSWLEC 264

Land and Environment Court

of New South Wales

CITATION:	Binet v Parramatta City Council [2006] NSWLEC 264
PARTIES:	APPLICANT P. G. Binet Pty Limited RESPONDENT Parramatta City Council
FILE NUMBER(S):	10128 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- construction of a new dwelling - streetscape/character
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001
DATES OF HEARING:	16/05/06
EX TEMPORE JUDGMENT DATE:	05/16/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr S Kondilios, solicitor SOLICITORS Maddocks RESPONDENT Mr P Marinkowitch, solicitor SOLICITORS Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

16 May 2006

10128 of 2005 P. G. Binet Pty Limited v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of DA/937/2005 for the construction of a new dwelling at 12 Crown Street, Epping (the site).

2 The proceedings were listed for a Court hearing however the parties agreed to conduct the proceedings as an On Site Hearing. The judgement reflects the contents of the Statement of Basic Facts and the findings given on-site.

3 The site is Lot 301 in DP 1092471. It is vacant and has a frontage of 16.015 metres depth of 47.39 metres giving a total site area of 755.7 square metres. The surrounding area is predominantly residential and characterised by mix of single and two-storey detached dwellings of different ages and design. A villa development adjoins the site to the south.

4 The site is within a Residential 2(a) zone under Parramatta Local Environmental Plan 2001 (the LEP). The proposed use is permissible with consent within this zone.

5 Parramatta Development Control Plan 2001 (the DCP) also applies. The relevant controls relate to Safety and Security (Section 4.3.2), Vehicular Access, Parking and Circulation (Section 4.3.5), Streetscape (Section 4.4.1) Single Dwellings (Section 5.3) and Neighbourhood Character Areas (Appendix 8).

6 The council filed a Statement of Issues containing 6 separate issues. The issue of whether the proposed development will have unacceptable impact on the amenity of the residents from overshadowing in the front unit of the villa development to the south (Issue 6) was addressed satisfactorily addressed through an increased side setback. The remaining issues can be conveniently grouped into the following single issue of whether the proposed double garage is acceptable considering the proposed setback and the impact on the streetscape and character of the area (Issues 1 to 5).

7 Mr Craig Thomas, a town planner provided evidence for the council and Mr Ian Glendinning, a town planner provided evidence for the applicant. There were no resident evidence as no objections were received when the development application was advertised by the council.

8 Mr Thomas states that the proposed double garage will project significantly forward of the front building line and visually dominate the existing streetscape and adversely affect the established character of the neighbourhood. Additionally, the location of the entry of the dwelling, being approximately 15.8 metres from the front boundary and behind the double garage is not consistent or compatible with the prevailing setbacks of adjoining and nearby buildings. The location of the entry also significantly restricts opportunities for casual surveillance of the street and dwelling.

9 Mr Glendinning comes to the opposite conclusion. He states that the proposal represents a satisfactory design response to its location. It is sympathetic to the existing streetscape and consistent with what might be expected on the site. He rejects the suggestion that the proposed to dwelling breaches the setback requirements as the garage and front of the dwelling is setback 7.8 metres and is consistent with the prevailing setback in the street. He also maintains that adequate passive surveillance is still available from the entry of the dwelling.

10 For safety and security, the relevant DCP objective states, "ensure that the site and design of buildings and spaces contributes to the actual and perceived personal and property safety of residents, workers and visitors and decreases the opportunity for committing crime in the area" (Section 4.3.2).

11 In relation to parking, the relevant performance criteria of the DCP require "car access areas do not visually dominate either the development or the public domain surrounding the development". The design solution states "at grade garages and carports are located a minimum of 300 mm behind the front building line (refer to Figure 11- Front Building Line for clarification) ". (Section 4.3.5).

12 In relation to streetscape, the DCP objectives requires new development to "complement and conserve the visual character of the street and neighbourhood through appropriate building scale, form, in detail and finish", "reinforce or sensitively relate to existing streetscape features such as building setbacks, alignments, heights, landscaping and/or vegetation and fence design" and "optimise street address and passive surveillance by residents of the streetscape" (Section 4.4.1).

13 In relation to setbacks, the relevant performance criteria state, "building setback from the street boundary is consistent with prevailing setbacks of adjoining and nearby buildings". The design solution provides for "a minimum of 5 metres and a maximum of 9 metres". For garages, the DCP states "garages and parking structures do not dominate street frontages". (Section 5.3).

14 With the benefit of the site view and an inspection of the surrounding area I agree with the evidence of Mr Glendinning. In my view, the proposed development will sit comfortably within the attractive but varied streetscape of Crown Street and the adjoining area. The concern of Mr Thomas that the garage will dominate the existing streetscape and adversely affect the established character of the neighbourhood is, in my view, unfounded. Even though the proposed development has the double garage located at the street frontage, it has been designed to minimise any impact on the streetscape through its setback, presentation to the street, integration with the dwelling design and its entry parallel to the street where the garage doors are not directly visible from the street.

15 The garage clearly forms part of the dwelling and the setback complies with the objectives and performance criteria in Section 5.3. Any reliance on Figure 11 in Section 4.3.5 is misleading as it refers to a detached garage rather than a garage designed to form part of a dwelling house. The Court was also taken to a dwelling house under construction, near the subject site that was clearly inconsistent with this requirement. In this case, the garage extended closer to the street by at least 1 m than the wall of the dwelling.

16 I also accept that the proposed dwelling satisfies the requirements in relation to passive surveillance as the entry provides the opportunity of viewing parts of Crown Street. In my view, it is unreasonable to expect the whole of Crown Street to be visible from the entry of the dwelling to satisfy the requirements of Section 4.3.2.

17 Of the councils the draft conditions, the applicant opposed the condition restricting the materials of the dwelling. Based on the schedule of materials provided to the Court by the applicant, I accept that the condition can be replaced with a condition that requires the dwelling the constructed generally in accordance with the details in the schedule of materials.

18 For the foregoing reasons the orders the Court are:

1) The appeal is upheld.

2) DA/937/2005 for the construction of a new dwelling at 12 Crown Street, Epping is approved subject to conditions in Annexure A.

____________
G T Brown
Commissioner of the Court