Hawshar v Parramatta City Council
[2004] NSWLEC 717
•11/25/2004
Land and Environment Court
of New South Wales
CITATION: Hawshar v Parramatta City Council [2004] NSWLEC 717 PARTIES: APPLICANT
RESPONDENT
Hawshar
Parramatta City CouncilFILE NUMBER(S): 10787 of 2004 CORAM: Brown C KEY ISSUES: Development Application :- demolition of two existing dwellings - erection of a mixed commercial /residential development - isolation of adjoining property - height - bulk - scale - overshadowing LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001CASES CITED: Mellissa Grech v Auburn Council (2004) NSWLEC 40;
Cornerstone Property Group Pty Ltd v Warringah Council (2004) NSWLEC 189;
Saab v Parramatta City Council (2003) NSWLEC 366DATES OF HEARING: 24/11/2004 EX TEMPORE
JUDGMENT DATE :11/25/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr D Briggs, solicitor
SOLICITORS
D G Briggs & AssociatesRESPONDENT
Mr P Marincowitz, solicitor
SOLICITORS
Phillips Fox
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
25 November 2004
JUDGMENT10787 of 2004 Hawshar v Parramatta City Council
1 This is an appeal against the deemed refusal by Parramatta City Council (the council) of Development Application 198/04 for the demolition of two existing dwellings and the erection of a mixed commercial/residential development at 335-337 Woodville Road, Guildford (the site). The hearing was conducted as an On Site Hearing.
2 The site consists of two separate lots of generally rectangular shape. The frontage to Woodville Road is 24.91 m and the site has a depth varying between 42.7 and 44.4 m giving a total area of 1081 sq m.
3 The proposal seeks to erect a building to house a commercial tenancy of 131 sq m on the ground floor with lobby and garbage areas, five residential apartments on the first two levels and four residential apartments on the third level.
4 Following case management and further conferencing between the parties the council raises two principal issues, in addition to other issues raised by local residents when the application was advertised.
5 The first issue relates to the isolation of the property at 339 Woodville Road and the second issue relates to the height, bulk and scale and the overshadowing impacts of the proposed building.
6 In considering the second issue the parties agreed to the appointment of Mr Michael Harrison as the Court appointed urban design expert. Additionally, leave was granted for Mr Brad Delapierre, a council town planner, to give evidence for the council and Mr Alan Caladine, also a town planner, to give evidence for the applicant.
7 The local residents raised further issues beyond the two issues nominated by the council. These relate generally to the impact on the character of the area, increased traffic and safety, noise and health implications of being close to the heavy traffic on Woodville Road. A number of the local residents provided their evidence on-site.
8 The site is zoned Mixed Use 10 under Parramatta Local Environmental Plan 2001 (the LEP). The proposed use is permissible within this zone. The zone is located on both sides of Woodville Road in the vicinity of the site. Adjoining properties to the east are zoned Residential 2B under the LEP. This zoning permits multi-unit housing including villas, townhouses and terraces. The LEP provides no numerical controls for mixed use development.
9 Development standards can be found in Parramatta Development Control Plan 2001 (the DCP). There was no dispute that the proposal satisfies the requirements for floor space ratio (the proposal being 1.24:1 compared to the 1.5: 1 specified in the DCP), site frontage, front setback, side setback and private open space, common open space, resident parking and commercial parking. The non-compliance with the height requirement formed the basis of the council’s second issue.
10 The first issue relates to the isolation of the adjoining property at 339 Woodville Road. It is located on the corner of Wynyard Street so there is no potential for amalgamation with any other lot. In isolation, this lot does not satisfy the minimum site frontage requirement in the DCP.
11 The registered owner of 339 Woodville Road is Mr Gazi Hamoui. At the hearing Mr Leslie Aboud, a solicitor representing Mr Khalad El-Sayed indicated to the Court that his client has a substantial equity interest in this property. While objections to the proposed development were received from Mr Hamoui, Mr Aboud advised the Court of his client’s objections along similar lines to that expressed by the council staff, that is, the isolation of this property was unacceptable because it prohibits or limits the redevelopment of this lot in isolation.
12 Planning principles addressing isolated lots are found in Mellissa Grech v Auburn Council (2004) NSWLEC 40 and Cornerstone Property Group Pty Limited v Warringah Council (2004) NSWLEC 189. These principles respond to the objects of the Environmental Planning and Assessment Act in cl 5(a)(ii) where the promotion and co-ordination of the orderly and economic use and development of land are encouraged. They area also responsive to s 5.10.3 of the DCP where the consolidation of lots to promote the efficient use of land is encouraged.
13 Two principal matters flow from these planning principles. Firstly, whether the applicant has made genuine and reasonable efforts to amalgamate with the isolated site and secondly, whether the isolated site is capable of being developed consistent with the relevant planning requirements.
14 On the first matter, details of the negotiations were provided to the Court as part of the applicant’s bundle of documents. While there were numerous negotiations that took place over a period of time the negotiations ultimately broke down following an offer by the applicant to purchase 339 Woodville Road for $650,000. A counter offer to sell for $700,000 was rejected by the applicant.
15 To support the applicant’s proposition that a reasonable and genuine offer had been made to purchase the property a valuation from a registered valuer was provided. This found that 339 Woodville Road has a value of $350,000 as a single residential dwelling and $450,000 as forming part of an amalgamated development site. I note that the council did not seek to cross-examine the valuer, Mr Adrian Watt, nor did it bring any evidence to contradict Mr Watts’ valuations.
16 On the evidence presented to the Court, I find that the applicant has made a genuine and reasonable attempt to amalgamate the site with 339 Woodville Road.
17 The second matter relates to the ability to develop the isolated site consistent with the relevant planning controls. In this regard, the applicant provided a theoretical design for 339 Woodville Road to show that a development could be reasonably constructed. This matter is somewhat complicated by the resolution of the council to amend the LEP and the DCP.
18 The amendments seek to amend the LEP by including some development standards within the LEP. The amendments to the LEP have yet to be advertised.
19 The major amendments to the DCP seek to increase the minimum frontage to 25 m from 18 m, reduce the floor space ratio from 1.5:1 to 0.7:1, provide three storeys or 10.5 m height controls and increase boundary setbacks. The amendments to the draft DCP were on exhibition at the time of the hearing.
20 In relation to the draft LEP, no weight should be given to its contents. There was no evidence to indicate that a certificate pursuant to s 65 of the Environmental Planning and Assessment Act1979 had been obtained for the changes to be advertised. In my view, it could not be seen as imminent or certain under any assessment.
21 The draft DCP, at best, could be seen as only marginally more certain. In my view, it would be unsound to give any weight to it’s contents while it is still being advertised.
22 Mr Delapierre raised a number of concerns with the theoretical design provided by the applicant for 339 Woodville Road. These concerns were not supported by Mr Harrison and Mr Caladine who concluded that the site could accommodate a mixed use development although concessions would likely need to be made to the relevant planning controls in any assessment. It would be fair to say, however, that it was generally agreed that the optimal design would be the incorporation of 339 Woodville Road with the site. I would concur with this view.
23 On this issue I agree with the conclusions of Mr Harrison and Mr Caladine. It must be remembered that the theoretical design provided by the applicant is just that and many other decisions are likely to be available. In my view, the theoretical design provides sufficient support for the proposition that a mixed use development could be constructed on 339 Woodville Road and would provide an appropriate urban design outcome for the corner site. Inherent in this conclusion is the need for a merit based assessment of any proposal rather than a rigid assessment based on the applicable planning controls.
24 For these reasons, the isolation of 339 Woodville Road is not a reason that would support the refusal of the application.
25 The height, bulk and scale and overshadowing issue is addressed through s 5.7.3 of DCP 2001. It states:
“The maximum height of the building fronting the main street is three storeys. However, an additional storey may be permitted to the front of the sites where they do not adversely impact on the privacy and solar access of adjoining property.”
26 The proposal provides for a four level development. Mr Harrison states that it is to be expected that there will be an interface between existing and new development in the new Mixed Use 10 zone. He concludes that the proposal addresses this interface reasonably well and there is no substantial reason to reduce the height.
27 The shadow analysis on 339 Woodville Road shows sunlight only being received in the rear yard in the early mornings and late afternoon in mid winter. In response, Mr Caladine states that even if the building was three storeys the adjoining property would be overshadowed by the proposed building.
28 In terms of overlooking, Mr Caladine notes that some overlooking is likely to occur, however, the separation distance is reasonable and conforms with the 12 m separation distance in the Residential Flat Design Code. Mr Harrison also considers overlooking not to be a significant problem. While balconies and windows are located on the northern side of the proposed building, in his opinion, it is likely that any re-development of the adjoining site would respond in a similar way by having living rooms on the opposite side, that is, the northern side of the adjoining site thereby minimising overlooking.
29 The relationship between different forms of development in zones undergoing a transition is addressed in Saab v Parramatta City Council (2003) NSWLEC 366 where the Senior Commissioner at par 13 states:
“ In cases where the re-zoning has so drastically altered the existing density the only achievable objective for new development is to be compatible with the future character.”
30 In my view, it follows that the impact of overshadowing needs to be considered in light of the current zoning and the future development of the land rather than if the adjoining property was within a residential zone. I am also mindful of the conclusion of Mr Caladine that the fourth level does not add significantly to any overshadowing impacts. I also note that the proposed development generally complies with the other requirements in the DCP, particularly the floor space ratio. For these reasons, the additional area on the upper level is acceptable.
31 The residents raised a number of issues beyond those raised by the council. The issues of increased traffic and safety are matters that were not subject to any expert evidence. However, the limited size of the proposed development could not be seen as contributing, in any meaningful way, to the high levels of traffic along Woodville Road. The cumulative impact of matters is best addressed as part of the local planning process and is generally beyond the scope of the Court’s consideration of individual development applications, as are the questions of health impacts from Woodville Road traffic.
32 Noise impact on future residents was not raised as an issue by the council and consequently the Court had no specific evidence on this matter. I presume this is adequately addressed through conditions.
33 The question of character was raised by a number of residents. It is a matter that is more appropriately considered as part of the re-zoning process. As part of the re-development process, there can be a tension between existing and proposed forms of development. However, greater emphasis should be given to the form of development envisaged by the existing planning controls as they represent the future character of an area.
34 In terms of conditions, there was general agreement, with the exception of the deferred commencement condition relating to drainage. As there was some doubt as to the appropriate means of dealing with the drainage, the conditions should remain as a deferred commencement condition.
35 For the following reasons the orders of the Court are:
1. The appeal is upheld.
2. DA198/04 for the demolition of two existing dwellings and the erection of a mixed commercial/residential development at 335-337 Woodville Road, Guildford is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits 2, 3, 6 and A.
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