Environa Studio v Parramatta City Council

[2006] NSWLEC 425

Land and Environment Court

of New South Wales

CITATION:	Environa Studio v Parramatta City Council [2006] NSWLEC 425
PARTIES:	APPLICANT Environa Studio RESPONDENT Parramatta City Council
FILE NUMBER(S):	11452 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Neighbour amenity Solar access Privacy Impact on a significant tree .
DATES OF HEARING:	27 April and 29 June 2006
EX TEMPORE JUDGMENT DATE:	06/29/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor Pike Pike & Fenwick RESPONDENT Mr T Pickup , solicitor Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

29 June 2006

11452 of 2005 Environa Studio v Parramatta City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 10 October 2005 by Parramatta City Council (the council) of a development application for the erection of 10 townhouses on the corner of Tilley Street and Moffatts Drive, Telopea (the site).

2 At an earlier hearing on-site on 27 April 2006, I indicated my concern about a number of aspects of the then proposed development. These included:

• the potential impact on a significant gum tree on the frontage of the site to Moffatts Drive;
• number of units proposed on the site; and
• the adequacy of privacy of the private open spaces of the five units proposed to front Tilley Street.

3 As a consequence, the matter was adjourned to permit the applicant to revise the plans with a lower proposed yield; to seek further information from an arborist with respect to the impact on the gum tree; and to consider the question of presentation to Tilley Street.

4 I have, today, received revised architectural and landscaping plans and have also received, for the first time, drainage plans.

5 As a consequence of consideration of those plans and the discussions that have taken place during the course of today's hearing, I am satisfied that, subject to some further revision and tidying up of the architectural and landscape plans, issues that are raised by the council and the residents do not warrant further amendment to or refusal of the application.

6 I outline, briefly, the matters that arise to be considered for my satisfaction with respect to the gum tree. I have a report by Mr Caster of Tree Wise Men setting out requirements for a non-impact area and protection of the critical root zone of the tree.

7 The applicant has agreed to the removal of the courtyard proposed in front of Unit 6 and to the dedication of the area within critical root zone with the exception of existing at grade paths (which will be retained from the existing driveways). The dedication of that critical root zone as part of the common property of the development will have it retained as a mulched area.

8 There will be no construction taking place in the critical root zone, as, subject to the council being satisfied as to the appropriateness of the drainage plans which were provided today, the on-site detention tanks and all other drainage structures appear not to be constructed within that critical root zone. I am therefore satisfied that the matters relating to the survival of that tree have been dealt with appropriately.

9 The second matter is the impact on the residents of the property at 89 Moffatts Drive.

10 In the earlier plans, there were significant impacts on the privacy and amenity of the residents of that property as consequence of there being a proposed deck area accessed by the closest dwelling proposed on the site being significantly close to and higher than the boundary of that neighbouring property. This arose as a consequence of the need to provide a roof to the driveway area to the basement car park.

11 The revised plans eliminate that private open space and use of this area is subject to a number of amendments that have been agreed to today between the council, the applicant and the residents of the property. There will be some further minor changes to the plans ensuring that the landscaped area above the driveway remains part of the common property of the development and is landscaped in a fashion to eliminate the possibility of use as private open space or as communal, useable open space thus impacting on the privacy and amenity of those residents. As a consequence, I am satisfied that aspect of the development is now satisfactory.

12 The third matter is the question of internal privacy within the development. This matter was raised by the council and has been addressed by a number of conditions requiring obscure glazing and the like to various windows to eliminate internal overlooking. I am satisfied that it does not warrant any further amendment to the plans. There is also an issue raised by the council concerning the separation between Units 4 and 5 of the row of dwellings fronting Tilley Street and Unit 6 which fronts Moffatts Drive.

13 I am satisfied that, whilst there is a degree of proximity between these units, this is not so unsatisfactory as to warrant change or refusal of the plans. Had there remained other significant matters of an unsatisfactory nature with respect to the development as now proposed (following this morning's amendments) that proximity might have marginally contributed to refusal but in itself does not warrant refusal or further amendment to the plans.

14 The final matters raised by the council are the questions of the adequacy of solar access to and adequacy of utility of the private open space of Units 1 to 5 fronting Tilley Street.

15 I am satisfied that, with the change to the fencing which has been agreed to as a result of the discussions today (which will now be fencing consistent with the provisions Part 4.4 of the Parramatta Development Control Plan 2001 – in that there will be a solid element to a height of 1.2 m and a more opaque element to 1.8 m with landscaping in front of the fence rather than within the courtyard area of the five units facing Tilley Street) there will now be an appropriate degree of privacy to those areas of private open space.

16 There will also be a sufficiently adequate degree of solar access to them and there will be a sufficient and acceptable presentation of that element of the development to Tilley Street.

17 There are two other matters which are raised by the residents which I should deal with in the course of these proceedings.

18 The first is the general proposition advanced by the residents (both as discussed during the course of today's hearing and in the earlier hearing) is that the proposal is a significant overdevelopment of the site and the intensity of development on the site is unacceptable.

19 As I observed during the course of the hearing, I am obliged to determine the matter in the context of the zoning of the site determined by the council and not on any other basis – to do so would be a significant error of law.

20 The zoning of the site contemplates medium density housing and, subject to the fact that the revision of the plans which has taken place between first hearing and today reducing the originally proposed density, I am satisfied that the density of what is now proposed is entirely consistent with the council’s present controls. As a consequence of that, it is inappropriate for me to deal with that issue any further.

21 The second matter that is raised by the residents is the question of traffic impact on the vicinity of the site and the ability of residents to use the footpath areas outside the site. As to the general prospect of traffic increases, that is, in itself, a necessary function of the council’s zoning of the site. I merely note that, in all other respects, the proposal as presently before me is entirely compliant with all parking and other requirements of the council for development of this scale and that the council itself raises no issues with respect to traffic or parking.

22 Whilst I understand the residents’ desire not to have increases in the number of vehicles in their streets that, too, is a necessary consequence of the council’s zoning for the site.

23 I considered whether or not it would be appropriate to require the applicant to provide, over the length of the road setback fronting the property, a hard stand footpath and decided not to raise that matter with the applicants nor to pursue it further in these proceedings as I am satisfied that such a footpath would be entirely inconsistent with the general character of the streetscape in the area – the streetscape being characterised by grassy verges and, at least in the vicinity of the significant gum tree, such a footpath might require excavation which would impact on the critical root zone of the tree.

24 I have, therefore, concluded that the appeal should be upheld – subject to agreed conditions being settled between the parties and with revised plans incorporating the matters discussed today. The parties agreed that the applicant would provide a strata subdivision plan in terms of the elements discussed this morning as part of the revised architectural plans and that the orders made should include granting of the subdivision application.

Tim Moore
Commissioner of the Court