Carver Place Developments v Parramatta CC
[2006] NSWLEC 563
•12/07/2006
Land and Environment Court
of New South Wales
CITATION: Carver Place Developments v Parramatta CC [2006] NSWLEC 563 PARTIES: APPLICANT
RESPONDENT
Carver Place Development Pty Limited
Parramatta City CouncilFILE NUMBER(S): 10165 of 2006 CORAM: Murrell C KEY ISSUES: Appeal :- Refusal of an application to modify a consent issued by Council in July 2005, access way, landscaping, height and bulk of the proposal, visual impact and parking, streetscape. DATES OF HEARING: 29/05/2006 and 12/07/2006 for Preliminary Judgment EX TEMPORE JUDGMENT DATE: 07/12/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr A. Pickles, barristerRESPONDENT
Mr P. Merancowitz, solicitor
of Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMurrell C
29 May 2006
JUDGMENT10165 of 2006 Carver Place Development Pty Limited v Parramatta City Council
1 This is an appeal under s 96 of the Environmental Planning and Assessment Act against Parramatta City Council’s refusal of an application to modify a consent issued by the council in July 2005. The subject property is known as Nos. 10 to 12 Carver Place, Dundas Valley.
2 The conditions in question relate to the access way from the street through to the reserve, the removal of a Deodar tree and the deletion of attics to the townhouses.
3 The council consented to a development application for the erection of 18 townhouses with the majority having an attic roof and accommodation in the form of a bedroom and en-suite. (There is a slight variation to that format). Two of the townhouses for example only show store areas, and then there are two townhouses that do not show any dormers at all. The council no longer presses the retention of the Deodar tree, and in fact council has advised this morning that the Deodar tree was previously approved for removal. The Court agrees that the Deodar should not be required to be retained in the overall development, and that a more appropriate species of a canopy tree could be accommodated to replace the Deodar.
4 The council also does not contest the need for a public access way through the property from Carver Street to the reserve and in the circumstances given, the evidence that I have heard this morning from the resident objectors, they are also not seeking a public access way, and therefore those conditions are agreed should be deleted.
5 The seminal matter in these proceedings is the height and bulk of the proposal which is partly contributed to by what the Court considers excessive slope of the roof and the provision of the attic rooms. The Court met onsite this morning with the parties to have an understanding of the context in which the proposal will sit, and also heard evidence from a number of objectors in the street.
6 On returning to Court I detailed the evidence on the record, but in summary Ms Montague of No. 5 Carver Street, is concerned about the height, and the provision of attics, and the development was lowered it would be more street friendly. Ms Kathleen McGregor of No. 4 Carver Street is concerned about the height and traffic, and in terms of traffic the generation of traffic the additional floor area that is provided in the attics. Mr Mark Wattam of No. 11 Northwood Place is concerned about the height of the proposal, the bulk and scale of the development and the visual impact and parking. Mr John Lewis of No. 1 Carver Place is concerned about the attics adding bulk and the traffic in terms of the use of the additional attic rooms as bedrooms. Mr Daniel Azzo of No. 9 Carver Place is concerned about the balconies on unit No. 9 and the overlooking, or potential overlooking, to his rear yard. He is also concerned about the height and setbacks of the proposal.
7 The Court has had considered the objectors’ concerns. In terms of the fit of the development in the overall streetscape. I is note that the proposal provides a setback of between 5 and 7 m from the street frontage, and the development, with the pitch of the roof at 35 degrees, I am of the opinion that it would not sit comfortably in the streetscape. The additional accommodation, which is reflected in the pitch of the roof also contributes to concerns and also is excessive in terms of floor space.
8 Having considered the evidence to the Court, having an appreciation of council’s planning controls although I note as a s 96 application the proposal does not have to comply with the council’s planning controls and provisions, nonetheless the Court must assess a s 96 application in terms of its fit and in terms of its context in the streetscape and also in terms of whether the s 96 application to retain the dormers would lead to what the Court would consider an overdevelopment of the site in its context.
9 This extempore judgment reflects the fact the Court during the proceedings expressed concerns and a way forward has been discussed in terms of the roof reducing the floor area privacy concerns for No. 9.
10 The applicant has accepted that the plans must be amended to reduce the overall height by 1.1 m of both rows of townhouses. That is those that face Cunningham Reserve and those that face Carver Place. This would require a reduction in the space provided in the dormers, or the attic area of the development. The maximum pitch is to be 31 degrees and the attic rooms may require reconfiguration in terms of the bathrooms and other elements, and whether a bathroom for the third bedroom can be accommodated in the attic.
11 The applicant is also prepared to look at the basement parking, where it is hard up against the boundary with No. 9, to provide some additional landscapings and some deep soil areas for landscaping, and set the basement off the boundary in certain locations to achieve a softening of the built form when viewed from No. 9.
12 The applicant is also prepared to delete the balcony, the south-west balcony, to townhouse No. 9, such that it would not then overlook the adjoining property at No. 9, and this can be replaced with either a highlight window with a maximum sill height of 1.6, or alternatively a window inserted into the northern elevation of that wall.
13 The applicant is also prepared to look at the visitor parking to ensure that they are nominated on the plan for visitor spaces, and also in the reconfiguration to have regard to the car parking spaces that originally provided for the root system of the tree, No. 10, so that the stairs to the basement parking and their access points in the common areas can also be assessed.
14 The garbage area and the pathway to the street for the removal of the bins is also to be amended such that it does not run along the boundary with No. 9 for its entire distance. The applicant, as I stated, is also prepared to provide an amended landscape plan which would provide for the consequential amendments as a result of the redesign of the basement car parking, and street trees and softening for the development as it presents to No. 9.
15 The Court, having considered the evidence to the Court, considers that the appeal, subject to the above amendments, is capable of being approved. And in this regard on the receipt of amended plans, an amended landscape plan, and a plan to show the gradient for the garage basement together with an engineer’s report, the Court would be prepared to issue orders in chambers to reflect the above changes. As such the amended plans should be submitted to the council by 30 June, and also filed with the Court. The matter can then be determined by me in chambers, if it is in accordance with the requirements that I have outlined in this judgment. If not, the council and/or the applicant have leave to appear before me one morning at 9am if there is any dispute with respect to the amended plans.
16 Following my findings above amended plans were submitted, but did not show deletion of the balcony to the bedroom of Unit 9 and the window with a sill height of 1.6 m and the landscape plan did not show street trees.
17 Following the conclusion of the hearing the applicant advised in an e-mail as follows:
The Applicant wishes to bring to the attention of the Court, Condition 7 of the Final Conditions. The Applicant submits that if a private contractor is engaged, there will be double the amount of trucks collection waste, coming through Carver Place causing double the amount of noise and disruption to local residence. As an alternative the applicant suggests that Condition 8 be extended for the taking out of general waste and then Council’s waste collection collects the waste when the rest of the street has their waste collected once a week.
18 Council’s solicitor sought a response from Council’s planner and the following was provided.
I note that the subject s 96 application does not propose any modification of Condition 7 – does the applicant now wish to amend the subject application?
A commercial waste agreement will ensure the bins are collected in both a timely manner from the footpath, as well as to ensure the bins are placed on the footpath to ensure the most appropriate disposal of general waste from the site.Condition 7 has been imposed in response to concerns raised by residents of Carver Place that the number of bins required by the development which will be placed on the Carver Place footpath will not be collected from the footpath in a timely manner.
19 In fairness to the parties the matter was listed for mention before me. The applicant subsequently submitted amended architectural plans in accordance with my findings above.
20 The waste management issues (condition 7) was raised at the mention, however, I was not persuaded that the condition as proposed by the council should not be attached for the reason that an 18 unit development in the subject location of the cul-de-sac should be preferably designed to incorporate a garbage store room that can be easily accessed by a private contractor for all waste because of the proliferation of bins and receptacles lining the street frontage. Condition 7 only requires ‘general waste’ to be collected by a commercial waste and the council’s waste collection service is to collect from the recycled bins.
21 The Court notes the conditions are to be amended to provide for the planting of Blueberry Ashes on the verge and the landscape plan is to be amended accordingly.
22 I am now satisfied the formal Order of the Court can be issued to uphold the appeal and grant consent to the amended plans.
___________________
- J S Murrell
Commissioner of the Court
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