Chau v Parramatta City Council - [2009] NSWLEC 1363

Land and Environment Court

of New South Wales

CITATION: Chau v Parramatta City Council [2009] NSWLEC 1363

PARTIES:
APPLICANT
Yiu Ping Chau
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 10432 of 2009

CORAM: Pearson C

KEY ISSUES: :- dual occupancy development
non-compliance with approved plans

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 2005

CASES CITED: Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299

DATES OF HEARING: 21 October 2009

DATE OF JUDGMENT:
10 November 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr AJJ Thompson, solicitor
Richie & Castellan
RESPONDENT
Mr P Marincowitz, solicitor
DLA Philips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pearson C

10 November 2009

10432 of 2009 Yiu Ping Chau v Parramatta City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the Council) of an application pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent number DA/127/2005 for the demolition of existing structures and the construction of a two story attached dual occupancy dwelling with Torrens title subdivision, at 80 Dunlop Street Epping, Lot 14 Sec 3 DP 10048 (the site).

2 The proposed modifications include:

-Reduced setback to the western boundary

-Increased setback to the eastern boundary

-Deletion of eaves

-Changes to internal layout for the ground and first floors

-Extension to western unit first-floor street facing balcony

-Reduction in the sizes of two ground floor windows for the western unit

-Repositioning of two windows on the eastern elevation

-The family room/kitchen windows to ground floor of eastern unit

-Relocation of rainwater tanks into the sub floor area below each unit; and

-Amended external finishes.

Background

3 The site has an area of approximately 1073.1 sq m and is located on the low southern side of Dunlop Street. The site adjoins dwelling houses on the eastern and southern and western boundaries. The land slopes from the street to the south.

4 The Council approved DA/127/2005 on 10 July 2006 subject to conditions. On 27 December 2006 a construction certificate was issued by ACE Building Approvals and construction of the development commenced in early 2007. On 31 May 2007 the Principal Certifying Authority issued a Notice of Intention to give an Order to the builder in respect of development not being constructed in accordance with the approved development consent. On 3 August 2007 the applicant lodged an application with Council pursuant to s96(2) of the Act to modify the development consent (the modification application). The modification application was notified and a total of eight written submissions and a signed petition were received. An on site meeting was held on 16 February 2008.

5 The issues raised by residents in submissions and at the on site meeting concerned the following:

Certification

Setbacks

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: [2009] NSWLEC 1363
Decision Date: 10 November 2009

CaseChat Overview and Summary

This case concerns an appeal against the refusal by Parramatta City Council of an application to modify development consent for a two-storey attached dual occupancy dwelling at 80 Dunlop Street, Epping. The proposed modifications included changes to the internal layout, setbacks, window sizes, and the addition of rainwater tanks in the subfloor area. The key issues the court needed to decide were whether the proposed modifications complied with the aims and objectives of the relevant planning controls, if the information provided was adequate, and whether the proposed modifications complied with specific planning requirements such as setbacks, floor space ratio, and privacy concerns. The Land and Environment Court of New South Wales found that while some of the proposed modifications did not strictly comply with planning controls, the overall impact of the changes was not substantial enough to warrant refusal of the application. The court concluded that the modifications sufficiently addressed concerns about privacy, solar access, and bulk and scale. The court ordered the applicant to submit amended plans reflecting the agreed modifications and certain conditions before any approval would be granted.

Orders