Environa Studio v Parramatta City Council

[2006] NSWLEC 152

Land and Environment Court

of New South Wales

CITATION:	Environa Studio v Parramatta City Council [2006] NSWLEC 152
PARTIES:	APPLICANT Environa Studio RESPONDENT Parramatta City Council
FILE NUMBER(S):	11390 of 2005
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of existing dwelling and erection of a townhouse development - inclusion of attics and balconies - bulk/scale - side setback
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001
DATES OF HEARING:	30/03/06
EX TEMPORE JUDGMENT DATE:	03/30/2006
LEGAL REPRESENTATIVES:	APPLICANT Ms J Reid, solicitor SOLICITORS Pike Pike and Fenwick RESPONDENT Mr P Marincowitz, solicitor SOLICITORS Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

30 March 2006

11390 of 2005 Environa Studio v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application DA/322/2005 by Parramatta City Council (the council) for the demolition of existing dwelling and erection of a townhouse development at 6 Carson St., Dundas (the site).

2 The appeal was heard as an On Site Hearing on 30 March 2006 and the judgement reflects the findings given on site.

The site and surrounding area

3 The site is Lot 23 in DP 775. It is rectangular in shape and with front and rear boundaries of 20.1 metres and side boundaries of 60.4 metres giving a total site area of 1211 square metres. It has a slope of approximately 11 metres from rear to front.

4 The general area consists of a mix of single dwellings and recent multiunit development.

The proposal

5 The proposal provides for a multi-unit housing development containing 6 x 3 bedroom townhouses above a basement car park. Each townhouse is two-storeys in height with an attic and small balcony in the roof space.

Relevant planning controls

6 The site is zoned Residential 2B under Parramatta Local Environmental Plan 2001 (LEP 2001). The proposed use is permissible within this zone. Clause 16 provides that consent must not be granted unless the development is consistent with the objectives of the zone.

7 Clause 39 provides that the height (not including the attic) shall not exceed two storeys. Clause 40 provides that the floor space ratio shall not exceed 0.6:1. There was no dispute that the proposed development satisfied these requirements.

8 Parramatta Development Control Plan 2001 (DCP 2001) applies. The relevant sections are Section 4.3 (Amenity Issues), Section 4.4 (Design Issues) and Section 5.5 (Specific Controls for Multi-Unit Housing).

The issues

9 The council filed a Statement of Issues containing nine separate issues. Solar access (Issue 3), loss of trees (Issue 5), driveway gradient (Issue 6) where not pressed by the council following the submission of further plans.

10 The remaining issues can be grouped into the following main areas:

1) whether the proposed attics should be deleted (Issue 1),
2) whether the proposed balconies should be deleted because of the added bulk and scale, (Issue 2),
3) whether the southern side setback is adequate, (Issue 4),
4) whether the proposed units have unacceptable internal acoustical consequences. (Issue 7).

11 The matters raised by objectors (Issue 9) are generally addressed as part of the consideration of the above issues although some issues are addressed later in the judgement.

The evidence

12 The parties agreed to the appointment of Ms Kerry Gordon, as the Court appointed town planning expert.

13 The owners of the property at 2A Carson Street provided evidence on site and inspection of the property was undertaken in the company of representatives from both parties. The relationship of the development with the property at 2B Carson Street was explained to the Court on-site.

14 Part 4.4.2 of DCP 2001 addresses building form and height and requires compliance with the requirements in Part 5. Controls for attics require that the attic room shall not increase the bulk and scale of the buildings, be no greater then 25 square metres and only be located on the front row of buildings.

While satisfying the area requirement, the proposed development provides an attic for each unit thereby not satisfying the locational requirements in DCP 2001.

15 Ms Gordon provides a summary of the controls in her report and finds that a variation to the locational requirements could be supported if the following criteria are met.

• do not increase the bulk and scale of the development,
• result in a development which is consistent with the bulk and scale of neighbouring development,
• do not reduced the amenity of neighbours and
• are not visually intrusive.
  

16 In her assessment, these criteria are satisfied and she concludes that the attics are acceptable.

17 With the benefit of the site view and the amended plans, I agree with the conclusions of Ms Gordon. I accept that area is a potential bulk and scale problem with the use of attics in a roof space, however in this particular case the design is a largely recessive and does not add to the bulk and scale of the building in any material way. The attics are only likely to be noticeable in very limited locations, being setback from the eaves of the building. The "eye lid" type construction is not visually intrusive and would not be out of character with recent townhouse development in the area.

Balconies

18 Part 4.3.1 of DCP 2000 addresses visual and acoustic privacy. Part 5.5 of DCP 2001 provides performance criteria and controls for balconies. Relevantly, balconies must face the street and rear boundaries and must minimise overlooking of neighbouring properties and private open space. As the balconies face north to the side boundary, the proposal does not satisfy this requirement in DCP 2001.

19 Ms Gordon states that the location of the balconies are acceptable notwithstanding this non-compliance. In her opinion, the balconies will not allow for direct overviewing of the habitable rooms or private open space of the townhouses currently under construction at 10 Carson St given their orientation and separation.

20 I agree with the conclusions of Ms Gordon. There is a significant separation distance of 13.6 metres between the building and the townhouses at 10 Carson St. The 1.2 metre high solid balustrade height of the balconies and the setback from the edge of the building will limited the opportunities for overlooking, as will the relatively small area of the balcony and the use of the attic area. I also note that the main living rooms of the townhouses at 10 Carson Street are located on the opposite side of the building to the balconies.

Side setback

21 Part 5.5 of DCP 2001 provides for a 6 metre side setback whereas the southern setback is proposed at 5 metres.

22 The Court was advised that the principal objective of the setback is to provide landscaping to enable screening of the building and reduce the impact on the adjoining property. Ms Gordon expressed some concern at the ability of the designated planting area to accommodate a level of landscaping to satisfy the objective. This concern resulted in an amendment to the plan to provide a deep soil area ranging between 700 mm and 900 mm along the southern boundary. The suitability of this area and the use of appropriate species was the subject of further evidence from both parties. A joint report was prepared indicating that sufficient area was available for the appropriate screening planting although I acknowledge that the council would have preferred additional area.

23 On the basis that the principal objective can be satisfied, I accept that the variation to the setback can be supported.

Internal amenity

24 The council raised the potential unsatisfactory acoustical privacy issue of the positioning of the bed head adjacent to the bathroom of the adjoining unit. A condition requiring amendment to the unit layout to address this issue was provided by the council but opposed by the applicant.

25 As there is no compulsion to locate the bed in the matter diagrammatically shown on the application plans I see no need to impose the condition. I also presume that the common wall will be constructed to the appropriate standards and provide an acceptable level of noise attenuation.

26 Pursuant to cl 16(3) of LEP 2001, I find that the proposed development is consistent with the relevant zone objectives.

Other issues

27 The most significant issue raised by the owners of the properties at 2A and 2B Carson Street related to solar access. As these properties are located to the south of the proposed building there will be a potential loss of solar access although this was not an issue pursued by the council following the submission of further shadow diagrams.

28 On the basis of the shadow diagrams the impact on the adjoining properties satisfies the requirements in DCP 2001 and as such could not be a reason for the refusal of the application.

29 The issue of overlooking into the private open space and the northern window of the dwelling at 2A Carson Street was examined on site and with the relocation of a bedroom window in the most easterly unit I accept that there are no overlooking issues that would warrant further amendment or the refusal of the application.

Conditions

30 Of the councils draft conditions, the council sought to impose condition 18 that required the ceiling of the basement car park to be painted white to maximise visibility.

31 The applicant opposed this condition because there was no obvious benefit when lighting has to the provided to the appropriate standard and the maintenance of the ceiling would be an unnecessary burden on future owners.

32 As no substantive evidence was provided by the council on the benefits of the painted ceiling, I accept the applicant’s submission and delete the condition.

Orders

33 The Orders of the Court are:

1) The appeal is upheld.
2) The demolition of an existing dwelling and erection of a townhouse development at 6 Carson St., Dundas is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 2 and A.
_____________
G T Brown
Commissioner of the Court