Deakin Street Pty Ltd v Parramatta CC

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Deakin Street Pty Ltd v Parramatta CC [2006] NSWLEC 640

PARTIES:
APPLICANT
Deakin Street Pty Limited
RESPONDENT
Parramatta City Council

FILE NUMBER(S): 11598 of 2005

CORAM: Hoffman C

KEY ISSUES: Deemed Refusal :- deemed refusal for demolition of an existing house and the erection of 9 townhouses, traffic, solar access, disable access, landscaping, height, bulk, shadows, overlooking, location of Unit 1, private open space

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta City Council Local Environmental Plan 2001

DATES OF HEARING: 12/07/2006

DATE OF JUDGMENT:
10/09/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr G. Green, solicitor
of Pike Pike and Fenwick
RESPONDENT
Mr I. Woodward, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

9 October 2006

11598 of 2006 Deakin Street Pty Ltd ATF 327 Kissing Point Road Trust v Parramatta City Council
JUDGMENT

1 This is a Class 1 Appeal No. 11598 of 2005 between Deakin Street Pty Ltd ATF 327 Kissing Point Road Trust and Parramatta city council in regard to the deemed refusal of DA/960/2005 for demolition of an existing house and the erection of 9 townhouses at 327-329 Kissing Point Road, Ermington.

The Issues

2 The issues were amended on 12 May 2006 and came to the hearing as follows:

Particulars

Parramatta City Council Local Environmental Plan 2001

Height.

Particulars

considered a third storey

with

the

exception of unit 6

with the Council.

Energy Smart Buildings of

Particulars

potential

and sewer pipes, details of which

have not been provided for in the amended

design.

Visual and Acoustic Privacy

Particulars

with the exception of Unit 6 which no

longer has

an attic balcony,

Disabilities

Particulars

The proposal fails to provide adequate disabled access to the basement level and communal open space areas.
The application does not demonstrate that the unit is capable of being adaptable to meet the current standard AS-4299-1995
7. Whether the Applicant has satisfied Clause 4.3.5 - Vehicular Access, Parking and Circulation of DCP 2001 and Australian Standard AS2890.1 in relation to the particulars raised in Council's Statement of issues dated 14 March 2006 and matters raised by Mr Tim Ropers. the Court Appointed Expert.
8. Whether approval should be granted as the proposed development does not comply with Clause 4.4.1 - Streetscape, Clause 4.4.2 - Building Form and Clause 4.4.3 - Building Design and Appearance of DCP 2001.
9 Deleted.
10. Whether approval should be granted due to the visual bulk of the proposal when viewed from adjoining dwellings.
11. Deleted,
12. Deleted.
13. Deleted.
14. Whether approval should be granted as the proposed front setback is non-compliant with Clause 5.5 - Multi Unit Housing of DCP 2001.
15. Whether the Applicant will accept a deferred commencement condition to ensure adequate arrangements have been made for an easement to drain stormwater.
16. Whether approval should be granted as the proposed development would be an overdevelopment of the site.
17A. Whether approval should be granted as the plans do not comply with pre-hearing Practice Direction No. 17 in that:
17B. The Applicant has not provided the following amended plans to address the amended architectural plans:

(c) details of the adaptable unit.

Particulars

3 The hearing was attended by:

Mr I Woodward solicitor Storey & Gough
Mr T Curran objector 50 Jenkins St
Mr & Mrs Sun objectors 325 Kissing Point Road
Mr Totino objector on behalf of his mother Mrs T. Totino at 331-333 Kissing Point Road
Mr Cheong objector 56 Jenkins St

4 Whilst not required for cross-examination, there were reports in evidence from Mr. T Beardsmore architect and access consultant, Mr T. Rogers engineer and traffic consultant.

5 The applicant was represented by:

Mr G. Green, solicitor Pike Pike & Fenwick

6 Whilst not required for cross examination there were reports from Mr T. Wheeler access consultant, and City Plan Services report September 2005.

7 The parties had agreed that a joint planning expert Mr. N. Kennan should be appointed by the court and he was cross-examined on his reports.

8 Leave to allow the applicant to introduce its own planner Mr Darroch was denied.

9 The objectors concerns were, in summary:

Mr Curran is the rear northwest neighbour with a detached house. The proposal has its communal open space at the rear adjoining back fences. He feared increasing from one neighbour at the rear to 9 units that could generate considerable activity in the communal space causing loss of visual and acoustic privacy.
Mr & Mrs Sun were concerned about the location of the driveway to the units adjacent the common boundary with potential for noise, lights, traffic and visitor parking in the street. They were also concerned about privacy to their south elevation that contained a kitchen window. The proposal oriented its units to the north facing them, privacy loss was a concern. They felt the building was too high and attic windows in the proposal would enable overlooking of their house and yard. Also they were concerned about changes to existing masonry and high lattice fences and hedge vegetation on the common boundary with the subject site.
Mr Totino said his mother had lived on her property for 34 years. She was concerned about the location of garbage bin lockers for each unit on the entry path along the southern common boundary, there was potential for smell and rodents. She will get the noise of persons walking down the entry path, and would have overlooking from elevated entry porches to each unit and windows above. Her experience with apartment dwellers was they used on-site garages for storage and parked on the street. She foresaw congestion of parking outside her house. She thought the south elevation of the proposal being 45m long is like a huge wall that would be ugly and block the sun from her property that is on the south of the site. She relies on the sun to stop damp in her house after rain, and the proposal will prevent that in winter. The proposed south boundary vegetation will add to this effect because it will stop the sun too. Increased storm water runoff will come downhill onto her land. From Fremont Street opposite the site the proposal will look huge and out of keeping with the character of the area. The front setback is insufficient to fit in with the streetscape.

10 The plans had been modified to take care of some of the matters in dispute and only three (3) items remained in dispute.

11 The only issue of accessibility still in contest at the hearing was the need or not for a stair climber to be installed as part of the initial construction in Unit 6, the adaptable unit in the proposal. Mr Beardsmore said that cl 3.3.2 of AS4299 required a continuous path of accessible travel from the disable persons car space to the unit.

12 The applicant said the design of Unit 6 was different to the other units in that the stair from the basement car space was wider and straight with large landings top and bottom to enable installation of a stair climber at a later date.

13 Unit 6 was also different to the other units on its upper floor. A similar stair configuration to the basement was used to enable the later fitting of a stair climber, and the hall, bedrooms and bathroom were larger to pass a wheelchair. Mr Beardsmore did not press for the installation of the stair climber to the upper floor.

14 It seems to me the Australian Standard is written for the situation where the disable persons car space is remote from the unit. In this case Unit 6 has its own garage in the basement beneath the dwelling and they are directly connected by their own private internal stair. In effect the garage is part of the unit, not remote. So a disable person is IN the unit when they drive into the garage. The intention of “adaptable units” is that the layout enables its conversion to use by disable persons without structural changes. That has been done. Due to the particular design of Unit 6, I do not see the need to install a stair climber at initial construction. If the eventual occupant has a disability that does not involve ambulatory abilities then a stair climber may never be needed.

15 In the meantime disable visitors would presumably alight at the kerb on the street and there is disable access to Unit 6 via the entry path way and also to the communal open space at the rear.

16 Mr Kennan had reviewed the amended plans and overall held to the opinion that the proposal was an overdevelopment and was excessively bulky in height and overlooking of neighbours. He said, however that his remaining concerns could be overcome by the deletion of the attic rooms and balconies from Units 3-5 and 7-9 and lowering of the roof pitch from 35o to 25o reduce the bulk and overlooking and shadows.

17 The applicant put that the balconies outside the attic windows were now all planter boxes and the setback to the window would prevent any overlooking. The proposal did not exceed the floor space ratio, and the side boundary setbacks especially to the north being 9.5m at the ground and first floors and 13m at the attic exceeded the council requirements.

18 Mr Kennan said the council controls allowed attics only facing the street or a public reserve, the planters occupied the whole of what was previously a balcony and served no purpose and would be hard to maintain through the high sill windows, plus the controls said attic windows were supposed to be like dormers a maximum of 1.5m wide and the proposal was 3m. The result would be contrary to objectives of the zone and the desired future character under the statute and the controls.

19 He said the revised position of Unit 1 being on the south side with living room facing east to the street was unacceptable due to the offsets in the front elevation that would shade the east facing windows midwinter and mean the 3 hours of sunshine needed by the Council controls would not be achieved. Also with its private open space facing the street there was little privacy and nowhere for a clothesline out of public view. Noise from traffic due to the hill slope would not make it a pleasant space; also it was beside the entry path to the other units. The control also asked for private open spaces not to be within the front setback, he said.

20 The applicant put that the change to Units 1 & 2 was at Mr Kennan’s suggestion so the development addressed the street, and he was now happy with that design, including Units 1 & 2 having attics. The other 8 units all had very private large north facing courtyards, and the living rooms all received more than 3 hours sunshine in winter. The one unit that did not achieve the same was not sufficient for refusal…some persons preferred less sun, the courtyard would get the required 3 hours of sun. The living room window would get at least 2½ hours sun midwinter.

21 The applicant put the development control plan stated “generally” courtyards should not be in the front setback. Mr Kennan agreed it did say that, so it is not mandatory.

22 There is proposed a 1.8m high masonry fence separating the Unit 1 courtyard from the entry path to the other units, and there is an existing rise from the public footpath up onto the site at Unit 1. The applicant said this gives some privacy that would be enhanced to an acceptable level by the embankment being planted in shrubs in front of and behind the palisade fence along the street-front. The curve of the 1.8m high masonry fence and entry path from the front boundary into the south side setback created a pocket of the courtyard that would be unseen from the street, and could house the clothesline.

23 Mr Kennan said the entry path to Unit 2 was alongside the boundary between the front garden and Unit 1’s courtyard. A 1.8m timber fence was proposed and this would not be acceptable in the front setback.

24 It seems to me that relocating the gate and pathway to Unit 2’s porch and a lower palisade fence with planting along the common fence between Unit 1 & 2 front gardens would retain sufficient privacy for Unit 1. Unit 2 has its private courtyard on the northern side, so the front garden would mainly be used for visitors to walk to the front door.

25 Mr Kennan said drawing no.05-0021-07D showed fill over the roots of a tree to be kept in Unit 1’s courtyard adjacent the front fence. The applicant observed the fence was to be palisade type specifically to avoid damage to the tree, and that showed on several drawings. Drawing –07D was wrong and the natural ground level was to be kept, as shown by spot levels on other drawings. Mr Kennan said that was good.

26 He agreed the Unit 1 courtyard was 50-60% larger than required by council controls and would get the 3 hours sun to the required minimum area, but not to the area for the clothesline.

27 I observe from the shadow diagrams that about half of the clothesline area has mid-winter sun from before 9am to about 11.30am and that is an acceptable time period for the area of the courtyard that is larger than the council requirement.

28 On the matters of concern to the neighbours, Mr Kennan noted the rear communal yard of the proposal was a good size that would encourage its use, but it had good perimeter garden beds that would keep people away from the side boundaries, and there were no facilities such as BBQ or play equipment or a pool that would indicate noisy uses of long duration. It would retain reasonable residential amenity for the neighbours to the rear of the site.

29 The applicant had excavated the south side entry path in the amended plans so that persons walking along it would be below fence line and not be able to see into Mrs Totino’s.

30 The entry path is to be 1m from the south boundary providing a deep soil planter bed along the entire boundary at existing ground level. The applicant agreed to reduce the plants in the planter bed to grow no more than 3.5m high and be deciduous. On the north side of the entry path each unit has a 4m wide entry courtyard that would have trees to soften the architectural form and give some screening from one bedroom and a stair window in each unit on the first floor. These trees could also be deciduous to maximise sun to Mrs Totino’s in winter. That would also provide reasonable privacy for the neighbour.

31 I note that the shadow diagrams do show shadow on Mrs Totino’s northern wall and parts of her house have shadows after 11am at midwinter. It seems to me that although she has a large allotment with large areas of her yard and parts of her house that will still get sun, there is an impact on her house due to the height of the proposal. Even though it complies with the height requirements, I believe the deletion of the attics and lowering of the roof to 25O pitch would reduce that impact to some extent as well as reducing visual bulk.

32 Mrs Totino’s street front rooms obtain sun until midday, that complies with the council requirements and the change to the vegetation on the subject site adjacent Mrs Totino’s and lowering of the roof will retain reasonable solar access to the north side. There are no major rooms of Totino’s with windows on the north side. There are old ferneries/greenhouse on her north side that shade that wall now.

33 Turning to Mr & Mrs Sun’s property, the parties agreed on site the peak of the rear roof of the existing house on the subject site was about the height and location of a person if they were at the proposed attic windows. If there are no balconies and the planters installed, a person might not see over it into the southern windows of the Sun’s, but if the balconies were in place there would be direct overlooking. Even without the balconies, there would be overlooking of their back yard where none existed now. The deletion of the attics seemed appropriate on that basis as well as the height, bulk and overshadowing reasons.

34 At the front of the house the Sun’s were concerned about vehicle noise and lights of cars entering and leaving the basement garages. At the site I could see a masonry boundary fence in the front setback from the street boundary back beyond the front wall of the house, and the Sun’s said the fence is on their property. It is of a height and length that would provide good screening from lights and noise of cars entering and leaving. There are also existing hedge shrubs on the subject site beside the wall that add to the screening effect.

35 The applicant said that the plans showed a landscaped strip along the north boundary of the site and the brick wall and the hedge could be left intact during construction and supplemented when landscape is done. A suitable condition could be included.

36 Also the Sun’s liked the existing timber fence with lattice above and the existing hedge further to the west past the brick fence. The applicant said a condition to retain them could be attached also.

37 In regard to the use of the garages for storage and parking on the street, that is not a reason I could refuse a proposal, the garages comply with council’s requirements. Also the visitor parking on site complies with the council requirements.

38 The garbage lockers on the south side of the proposal were set into the individual entry paths of each unit. They were not big enough to house the two bins per unit (one 120 L and one 240 L) required, but they could be enlarged. It seems to me that in such a location the occupants of each unit would want to keep their bins in their locker, and in a hygienic state to avoid obstruction of their entry and no smells. The lids would keep vermin out. I have concluded Mrs Totino’s fears about the garbage bins are unlikely to be realised.

39 In regard to the streetscape issue, I was shown recently approved and under construction townhouses at Nos. 315, 321 and 319 Kissing Point Road. Some had higher walls that the proposal, dormers in the side roofs (but not the large width ones of the proposal), steep roofs, and some flat roofs. The side setbacks appeared to be much less than the proposal probably due to the lots not being as wide as the proposal’s.

40 Mr Kennan had pronounced himself in favour of the streetscape presentation of the proposal as it now appeared.

41 From downhill on Fremont St (the street opposite the site), the proposed building would be higher than the existing houses. However I cannot accept that the objectives of appearing in a similar scale to the existing houses is the intention of the council’s statute and controls when it has zoned the area for medium density residential versus the single detached houses existing, and after seeing the other developments the council itself has approved. As the applicant said, by comparison the proposal is a better solution on streetscape than they appear.

42 The applicant said it would accept deletion of the attics, but sought the retention of the roof pitches on Units 3-5 and 7-9. It was said the 25O roofs on those units would look unfortunate when Units 1 and 2 were accepted by Mr Kennan to retain their 35O pitch and attics.

43 I don’t agree with the applicant taking into account that the rear units step down the hill where one would not see the change in pitch, and with the benefits to the neighbours of the reduced pitch. The obvious alternative to that was not canvassed during the hearing viz. making Units 1 & 2, 25O pitch and deleting their attics. I do not propose to review that option.

44 Overall, with appropriate conditions, and a deferred commencement consent to obtain the amended drawings, I have concluded the proposal is suitable for consent.

45 Therefore the Orders of the court are:

1. The appeal is upheld.

2. Deferred commencement development consent is granted to a proposal for 9 townhouses above a basement garage for 20 cars including 3 visitor spaces at Nos.327-329 Kissing Point Road, Ermington, as shown on drawings listed in Annexure A, Schedule 2 Condition 1 hereto, all as amended by the conditions of deferred commencement, and as further amended by and built in accordance with the other conditions of consent in Annexure A.

3. The exhibits are returned to the parties except Exhibits A, B and 3, 4, 5, 6 and 7.

________________________

K G Hoffman

Commissioner of the Court

ljr

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Deakin Street Pty Ltd v Parramatta CC [2006] NSWLEC 640

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CITATION:	Deakin Street Pty Ltd v Parramatta CC [2006] NSWLEC 640
PARTIES:	APPLICANT Deakin Street Pty Limited RESPONDENT Parramatta City Council
FILE NUMBER(S):	11598 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Deemed Refusal :- deemed refusal for demolition of an existing house and the erection of 9 townhouses, traffic, solar access, disable access, landscaping, height, bulk, shadows, overlooking, location of Unit 1, private open space
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta City Council Local Environmental Plan 2001
DATES OF HEARING:	12/07/2006
DATE OF JUDGMENT:	10/09/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr G. Green, solicitor of Pike Pike and Fenwick RESPONDENT Mr I. Woodward, solicitor of Storey and Gough

[2006] NSWLEC 640

09/10/2006