Cornerstone Design and Construction v Parramatta City Council

[2006] NSWLEC 559

Land and Environment Court

of New South Wales

CITATION:

Cornerstone Design and Construction v Parramatta City Council [2006] NSWLEC 559
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Cornerstone Design & Construction

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10173 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Multi unit housing, streetscape, character of area, road capacity/safety, drainage, services

LEGISLATION CITED:

Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 2001 (DCP 2001)
Parramatta Development Control Plan 2005 (DCP 2005)

DATES OF HEARING:

22/08/2006 and 07/09/2006

 
DATE OF JUDGMENT: 

09/08/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Hill, solicitor
of Susan Hill and Associates

RESPONDENT
Mr C. Gough, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

Date 7 September 2006

10173 of 2006 Cornerstone Design & Construction v Parramatta City Council

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for a multiunit development at 10 Dean Crescent, Ermington. For the appeal a number of issues were identified, which can be summarised as follows:

• whether the development is consistent with the zone objectives for the 2B Residential zone.
• streetscape impacts,
• amenity impacts on neighbouring properties.
• adequacy of open space and landscaping.
• access.
• public interest.

2 In response to these issues, the applicant undertook amendments to the proposal and the parties agreed to the appointment of Mr B Newbold as the Court appointed expert for urban design quality assessment. Accordingly, he provided an initial assessment together with a final report which became Exhibit 2.

The site.

3 The site is 4 – 5 Dean Crescent, Ermington and it is described as Lots 4 & 5 in DP 30758. The combined site is irregular in shape and has a frontage of 44.5m along an arc, adjacent to the curvilinear alignment of Dean Crescent. It has a total area of 1875 sq m.

4 At present there are 2 single storey brick dwelling houses with integrated garages and associated outbuildings on the land.

5 The general area consists primarily of established single storey dwellings. As a result of up zoning in December 2001, the area is starting to experience pockets of redevelopment with some townhouse developments being approved in the vicinity of the site.

The proposal.

6 This application seeks consent for the demolition of the 2 dwellings and tree removal. Initially it sought approval for a 2-storey multiunit development containing 9 units over basement car parking area, but this was reduced to 8 units, over the basement carpark.

7 The application is also for the strata subdivision of the proposal.

Planning controls.

Parramatta Local Environmental Plan 2001 . The site is zoned Residential 2B under this LEP and the proposal is permissible subject to consent from council.

Development in the 2B Residential Zone .
1. Zone objectives
(a) to enhance the amenity and characteristics of the established residential area, and
(b) to encourage redevelopment of low density housing forms, including dual occupancies and multi unit housing, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area, and
(c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, and
(d) to provide opportunities for people to carry out a reasonable range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood, and
(e) to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods, and
(f) to ensure the road network has the capacity to cater for increased development.


Parramatta Development Control Plan 2001 (DCP 2001). This DCP contains a number of detailed design controls relative to multiunit housing.

Of relevance, the streetscape controls in s 4.4.1 provide:


Objectives

New development is to:

• Complement and conserve the visual character of the street and neighbourhood through appropriate building scale, form, detail and finish.
• Reinforce or sensitively relate to existing streetscape features such as building setbacks, alignments, heights, landscaping/vegetation and fence design.
• Optimise street address and passive surveillance by residents of the streetscape.
Parramatta Development Control Plan 2005 (DCP 2005). This DCP does not apply in the assessment of the proposed development as the application was lodged prior 214 December 2005 and therefore clause 1.4 - Savings Provisions applies.

The evidence.

8 In addition to the evidence of Mr Newbold, other planning evidence was presented by Mr T Brynes (architect/urban design consultant). A number of written objections to the proposal were lodged with council and these were considered in conjunction with the oral evidence of residents at the site inspection.

9 Aside from the matters raised by the objectors, the threshold issue in this matter concerns streetscape impacts, because the other issues have been adequately addressed to councils satisfaction by way of the amendments and are no longer pressed.

10 These amendments were undertaken on the basis of Mr Newbolds initial assessment that the planning and design of the original development was unsatisfactory on the following two accounts:

• even though the proposed development satisfied the majority of applicable numeric controls in DCP 2001, the size and siting of the buildings together with their architectural and landscape design were not considered consistent with characteristics of the low density environmental setting in the Dean Crescent cul-de-sac.
• the application presented a number of technical shortcomings in terms of in adequate detailing and incomplete information.

11 The substantive amendments included a reduction in a number of units from 9 to 8. Also, the floor space was divided into 2 separate buildings, rather than one elongated frontage building, so as to better respond to the streetscape. Hipped roofs have been introduced to reflect other predominant roof elements in the street and to provide better transitions to the neighbouring dwellings.

12 Additional front setbacks have been provided so that more deep soil planting areas are available to provide landscaping more consistent with the existing residential character of the street.

13 The other detailing amendments included satisfactory resolution of access to the disabled unit, parking and garbage areas satisfying the relevant Australian Standards/ council policy and floor level detailing being provided.

14 Consequently there was a joint conference between Mr Newbold and Mr Byrnes, wherein these experts agreed that the amended proposal, comprising the two separate building units i.e. building 1 - containing units 1-4 and building 2 containing units 5- 8, now reasonably satisfies the streetscape criteria. As the other outstanding issues have also been resolved to their satisfaction, these experts support the conditional approval of the development, on the basis that this is a representative form of development envisaged by the current Residential 2 (B) zoning controls.

15 However, strong objections were made against the proposal, by the neighbours as follows:

• Access and parking disamenity; the neighbours consider that the road carriage-way of Dean Crescent is relatively narrow, particularly when vehicles are parked on both sides of the street. Consequently visibility is reduced and traffic safety is compromised by the lack of on street parking in this cul-de-sac, particularly when family events occur. Also, the location of the access way to the basement carpark is considered unsatisfactory due to its position on the road arc, where sight visibility is reduced by the onstreet parking.

16 At the view, I had the opportunity of inspecting the street conditions and am advised by Council representatives that the environmental capacity of Dean Crescent has been assessed as adequate for the proposed development, in accordance with the level of service council considers reasonable in a Residential 2(B) area.

17 Insofar as there is an existing problem with drivers endeavouring to use Dean Crescent as a through road, I note Council has been informed of this problem but it is apparently not considered a high priority traffic problem. In any case, a "no through road sign" has been placed at the entry to Dean Crescent.

18 On the basis of council submissions, I accept that Dean Crescent provides reasonable environmental capacity for the subject development and it would not be reasonable to reject the proposal on these grounds, in the absence of expert evidence.

• Streetscape/character of area; a number of residents expressed concerns about the appearance of the development, on the basis that it will be incompatible with the existing low-density residential dwellings.

19 Insofar as I accept there will be some change to the character due to the type of development permitted in the Residential 2 (B) zone, it seems to me that the degree of change proposed here is acceptable, according to the Court appointed experts opinion, on which I rely.

20 In addition to this, I have considered the multiunit residential development, recently approved by Council and now under construction, situated on the corner of Dean Street and Fitzgerald Road. It appears to me that if this is the form of development envisaged and is to be taken as any sort of benchmark, then I am satisfied the subject proposal demonstrates better compatibility with the noticeable building elements in the street.

21 For the reasons mentioned previously, I rely on the Court appointed expert and Mr Byrnes opinions, that the amended proposal with its increased building setbacks allowing greater areas for deep soil planting, satisfies the desired future character and streetscape controls.

• Drainage; The main drainage issue concerned the placement and operation of the on-site detention, to be located on the south west corner of the property. This arrangement necessitated a relatively high 2m masonry enclosing wall, which range safety and visual impact concerns.

22 However the applicant undertook further amendments, to relocate the on-site detention tanks within the building, thereby eliminating the need for the high boundary fencing.

23 This revised drainage arrangement is considered acceptable to council and as the visual impact concern has now been removed, I also accept that the OSD proposals are satisfactory, subject to final detailed design.

24 A separate drainage matter raised by the residents concerns the adequacy of the existing stormwater drainage system. Apparently overland flows have been experienced by some of the lower properties at the end of cul-de-sac during certain storm events. However this concern is outside the scope of this appeal, because the Court is informed that the conditions consent require the development to collect and detain its stormwater, so it can be released at a predetermined rate, which does not exacerbate drainage problems.

25 Therefore, on the basis of the agreement between the parties, in my opinion there is no compelling evidence to warrant rejection of this proposal on the basis of its drainage contribution.

CONCLUSIONS.

26 Having considered the evidence, the submissions and undertaken a view I am satisfied to rely on the Court appointed experts opinion that this multiunit housing proposal merits conditional consent.

27 Insofar as the multiunit form of development appears more intensive than the existing low-density residential development, nevertheless this is the form of development envisaged and allowed by the current controls in the Residential (2B) zone. The amended proposal picks up and includes representative building features in the street and importantly provides reasonable setbacks to allow deep soil planting for landscaping, so as to capture the predominant garden setting features of street. For these reasons then, I consider development reasonably responds to the LEP and DCP objective and controls to allow consent to be granted.

Court Orders.

1 This appeal is upheld.
2 The SEPP 1 objection to the development standard for the number of storeys contained in cl 19(1)(a) of the Parramatta Local Environment Plan is allowed.
3 Development consent is granted to DA/1229/2004 for the demolition of 2 dwellings and construction of the multi unit residential development, comprising 8 units and basement carparking at 4-5 Dean Crescent, Ermington, subject to the conditions in Annexure A.
4 Approval is granted for the strata subdivision of the development in accordance with the approved plans.
5 The exhibits may be returned except for 2, 4, A, B, G and H.
_______________________
R Hussey
Commissioner of the Court
ljr

08/10/2009 - Orders have been amended pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 ("the slip rule") on 2 October 2009 - Paragraph(s) New order no 2 added, previous order no 2 becomes order 3, new order no 4 added, previous order no 3 becomes order no 5.