Houteas S v Parramatta City Council

[2006] NSWLEC 749

Land and Environment Court

of New South Wales

CITATION:	Houteas S v Parramatta City Council [2006] NSWLEC 749
PARTIES:	APPLICANT: Mr Spiro Houteas RESPONDENT: Parramatta City Council
FILE NUMBER(S):	10607 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Bulk and scale of development on Woodville Road, Vehicular safety and privacy
LEGISLATION CITED:	Parramatta Local Environmental Plan 2001, (PLEP) Parramatta Development Control Plan 2001, (PDCP) Environmental Planning and Assessment Act 1979, ss79C and 97
DATES OF HEARING:	29/11/2006
EX TEMPORE JUDGMENT DATE:	11/29/2006
LEGAL REPRESENTATIVES:	APPLICANT: Dr S M Berveling, barrister instructed by Mr L McMahon, solicitor SOLICITORS: MatthewsFolbigg RESPONDENT: Mr P Marincowitz, solicitor SOLICITORS: DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

29 November 2006

10607 of 2006 - Spiro Houteas v Parramatta City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Parramatta City Council (the council) to refuse a development application to demolish the existing buildings on the land and to erect a three (3) storey mixed-use development, including ground floor motor showroom and fourteen (14) residential units with basement carparking at Nos 290A-294 Woodville Road, Guildford, being Lot 71, DP 128916; Lot 6, Sec 3, DP 990 and Lot 5, Sec 3, DP 990.

2 I visited the land in company with the parties on the morning of the hearing and I heard from local residents.

3 I have concluded that the application may be approved after consideration of it under the heads of s 79C of the Environmental Planning and Assessment Act 1979.

The land

4 The land is situated on the corner of Woodville Road and McArthur Street and has a 37.3m frontage to Woodville Road, a frontage of 45.7m to McArthur Street and an area of 1,709.2m2.

5 Two (2) of the subject lots are vacant and the remaining lot at No 294 Woodville Road has erected upon it a single-storey residence. The land is flat. Woodville Road is noisy, polluted and heavily trafficked arterial road.

6 Low-scale commercial/retail activities and single dwellings characterise the locality.

Relevant planning controls

Parramatta Local Environmental Plan 2001, (PLEP)

7 Under the provisions of the PLEP the land is zoned Centre Business 3a and the proposal is permissible with consent. The council maintains that the proposed development would be consistent with the objectives of the zoning.

Parramatta Development Control Plan 2001, (PDCP)

8 The relevant provisions of the PDCP are:

· Part 4.1.1 - Energy smart buildings;

· Part 4.1.2 - Waste controls;

· Part 4.1.3 - Water management;

· Part 4.1.4 - Soil management;

· Part 4.1.7 - Landscaping and soft soil;

· Part 4.1.8 - Residential subdivision;

· Part 4.2.1 - Housing diversity and choice;

· Part 4.3.1 - Visual privacy;

· Part 4.3.2 - Safety & security;

· Part 4.3.5 - Vehicular access, parking and circulation;

· Part 4.4.2 - Height limits and floor space ratios;

· Part 4.4.2 - Building form;

· Part 4.4.4 - Materials and colours;

· Part 4.4.5 - Cross ventilation;

· Part 4.4.6 - Open space; and

· Part 5.7 – Mixed-use development.

The proposal and its history

9 Development application No DA1445/2004 was lodged with the respondent council on 23 November 2004 to demolish the existing buildings on the land and to erect a three (3) storey mixed-use development.

Notification
10 The application was notified to nearby owners and occupants between 19 January 2005 to 9 February 2005 with notification letters sent to adjoining and nearby property owners and the council received four submissions. These submissions contained objections to the proposal from:
· B R Gray of No 31 Park Street, Merrylands;
· B R Benson of No 321 Woodville Road, Guildford;
· Mark and Valda McMullen of No 34 Constance Street, Guildford; and
· G J Quinn of No 19 McArthur Street, Guildford.

11 The concerns of the objectors are summarised as:

· The proposal does not comply with the PLEP 2001 and DCP 2001.

· The proposal is 4 storeys and therefore defined as high density housing, which is prohibited in the zone.

· The proposal will have a negative impact on the streetscape. Further, the bulk and scale of the building is excessive.

· The proposal will have a negative impact on the privacy of the nearby properties.

· The proposal will have adverse overshadowing impacts on the nearby properties.

· The cumulative impact of recent approvals in Woodville Road is destroying the area with respect to extra vehicles on the surrounding roads.

· The extra vehicles generated by this proposal will create excessive noise and exhaust pollution (health concerns).

· The setback of the proposed building from Woodville Road is inadequate.

· The existing infrastructure is inadequate.

· There is an over-supply of high-rise residential development and the council should not approve any more.

· The proposal will reduce the amount of available on-street car parking spaces.

· We believe the noise from occupants will reduce the amenity of the surrounding properties.

· The proposal will reduce the property value of the surrounding homes.

· We believe the character of the surrounding area will be compromised as a result of the development.

· We believe the development will result in extra people being crammed into an already over-crowded area.

· The position of the development is dangerous and it will create a traffic hazard at the traffic lights (corner of Oxford Street).

· The operation of the motor showroom will disturb the amenity of the surrounding neighbours.

· The proposed signage will be ugly.

· The proposed car yard will create security problems.

· The proposal will create a precedent for other similar applications in this area.

· There are enough car yards in this area already.

· The extra garbage bins on the street will cause problems.

· The extra noise generated by mechanical plant rooms, air-conditioners and ventilation systems will cause excessive noise problems for the surrounding residents.

· The proposal will create further flooding problems for the site due to the extra amount of hard surface areas.

· The design provides poor cross flow ventilation to the residential units.

· The occupants of the residential units will have a lack of fire safety in the building.

· How will the council ensure the regular maintenance of the building in the future?

· The ‘slum-type’ people should not be thrown into these developments along Woodville Road.

12 The development application was referred to the following sections of the council for comment:

· Traffic and Road Engineer on 28 July 2005 and a further referral on 27 February 2006 who commented that; The DCP requires a minimum of 4 visitor parking spaces and these should be labelled on the plans. Similarly the spaces allocated for commercial parking; Total gross floor space for commercial should be provided so as the minimum commercial parking requirements can be calculated; Columns cannot be included in the width of car spaces; Car spaces 23, 24, 35 and 36 in the basement carpark and car spaces 1 and 8 in the ground level carpark are less than 2.7m in width as required under section 2.4.1 of AS 2890.1 and cannot be accepted; Disabled car spaces must be a minimum 2.8m x 5.5m according to the DCP; Stairs adjacent to car spaces 35 and 36 reduce the aisle width to less than the required 5.8m under section 2.4.1 of AS 2890.1 and cannot be accepted; Motorcycle spaces do not comply with section 2.4.7 of AS 2890.1 as the minimum dimensions for motorcycle spaces are 2.5m (length) x 1.2m (width); One-way ramp in basement carpark must be a minimum of 3.Om between kerbs and provide a minimum 300mm clearance on both sides according to section 2.5.2 of AS 2890.1; Turn around bay has not been provided in the basement carpark; Access ramp does not comply with the grade requirements of section 3.3 of AS 2890.1. The gradient must not exceed 5% for the first 6.Om into the carpark; Access driveway must comply with section 3.3(d) of AS 2890.1 - where the driveway crosses the footpath, the grade shall by 2.5% or less over a lateral distance of at least 1.0m; Column locations do not comply with section 5.2 of AS 2890.1. Columns must be located no closer than 750mm from the aisle and must be further than 3650mm from the end of the car space;

· Landscaping on 28 July 2005 in which the following comments/recommendations were made; The planting of 4 (four) 200-400 litre container Eucalyptus diseroxylon `Roses' at a minimum height of 4m at the time of planting, along Woodville road at a minimum distance of 3.5m from the kerb, 3m from any driveway, 12m from the intersection and 7m between trunk centres; Forecourt area shall incorporate the planting of a 7m Hymenosporum flavum (native frangipani), a 4m Omalanthus populifolius (bleeding heart) and accompanied by smaller Grevilleas, Banksias and Bottlebrushes; Instead of 6 Turpentines, 5 (five) Eucalyptus amplifolia (cabbage gum), Eucalyptus eugenioides (brown stringy bark), Eucalyptus globoidea (white stringy bark) Eucalyptus punctata var punctata (grey gum), Eucalyptus tereticomis (forest red gum). The trees should have a container size of 200 - 400 litres with a height of 4-5m at planting; Incorporation of a cluster of cabbage tree palms at the intersection corner; Amended landscape plan specifying the amount of plants proposed to be used for each species; All trees to be planted into mulched garden beds so as to minimise maintenance and water use.

· Environmental Health on 28 July 2005 in which the following comments were made: Acoustic Report by Quartz Consulting Services is not supported initially, in that, the report summary that “…the noise emitted from the use will not cause adverse noise impact when measured or assessed at any residential boundary.” Subsequently the Environmental Health officer was content with the proposal after receiving a further acoustic report.

· Drainage Engineer on 6 December 2004 who had no concerns with the proposed development.

· Building Surveyor on 6 December 20065 who had no concerns with the proposed development.

13 The development application was also referred to the Design Review Panel (SEPP 65 Panel) on 22 February 2005, 20 September 2005, 22 November 2005, 20 December 2005 and 14 February 2006. The Design Review Panel endorsed the its recommendations from 14 February 2006 which were:

§ The proposed development satisfactorily addressed the comments made by the Panel.

§ Northwest corner balcony should be opened up to address the original view to the building.

14 The application was reported to the Council Meeting (Regulatory) held on 10 April 2006 where it was originally approved. A recision motion to rescind the previous decision of the council, to approve the application was moved and carried at the Council Meeting (Regulatory) held on 8 May 2006. The application as a result of the recision motion was refused on 8 May 2006.

The council’s decision

15 By notice dated 15 May 2006 the council refused the application for the following reasons:

1. Does not comply with the provisions for solar access to the adjoining premises at No 296 Woodville Road.
2. Due to lack of compliance with other development requirements such as balcony width, bicycle rack and soft soil areas.
3. The issues raised at the public forum held on 8 May 2006 regarding emissions of particulate matter 2.5 and particulate matter 10, together with the report presented in support of this issue.

16 The appeal was filed on 14 July 2006 and is within time.

17 Mr S Mortlock, Senior Development Assessment Officer, Parramatta City Council prepared the statement of basic facts, dated 11 August 2006.

18 Mr S Gauld, acoustic engineer for the applicant, was available on site to give evidence.

The issues

19 On 2 November 2006, the council filed a statement of issues.

Solar access

Landscaping

Balcony width

Bicycle parking

Basement design/parking

Acoustic report

Inadequate information: Mechanical services plant

Objectors

Conditions

9. The Respondent submits that in the circumstances of the case, the issues are capable of being resolved by conditions of consent [except issue No 8 in part].

20 The salient issues are those raised by the objectors relating to bulk and scale of development on Woodville Road, vehicular safety and privacy.

The evidence and findings

21 Concerns of the residents that are relevant under s 79C of the Environmental Planning and Assessment Act 1979, may be addressed as follows:

Bulk and scale of the building is excessive

22 The proposal would have a floor space ratio (FSR) of 1.49:1 and is well within the control of 2:1. As a crude measure of bulk this would indicate that the proposal is modest of bulk. The residents were concerned that placing more dwellings close to Woodville Road, an arterial highway, would result in greater propensity for pollution-generated diseases. The Court is involved in considering the application against the planning controls that apply to the land and having fully considered the proposal I am satisfied that the bulk and scale of the proposal is satisfactory considered against the background of those planning controls and I would not refuse the application for this reason.

23 One of the neighbours at No 2 McArthur Street was aware that benefit would flow to her as a result of shielding of noise from the highway by the proposal.

Vehicular safety and privacy

24 At the hearing, the applicant agreed to provide a 1.5m splay on one side of the entrance to the car park and to provide a viewing gap of 1.5m in the structure on the other to improve driver sight lines and pedestrian safety. The applicant also agreed to further set back from the street, by a distance of at least 1.5m, the position of the gates to the basement car park. The council was content that this measure would address the vehicular safety concerns of the residents at No 2 McArthur Street. Mr and Mrs Alsajje were involved in these discussions and indicated their satisfaction with the design modifications agreed to. I would not refuse the application for this reason.

25 The privacy concerns of Mr and Mrs Alsajje, residents of No 2 McArthur Street, were addressed by providing sight screens on the southern-most balconies to Units No 1 and 8 to a height of 1.5m for a distance of 2.5m along the western side near the southern end of each balcony and along the southern side of each balcony. The applicant was content for a condition to be imposed to that effect. The applicant also agreed to provide a further privacy screen to a total height of 1.5m along the western side of the communal open space on Level 1, to ensure privacy to the rear yard of the Alsajje property in addition to screening planting proposed in the landscape plan. I am satisfied the neighbour’s concerns would be addressed in this regard and as a result I would not refuse the application for reasons of privacy.

Balcony width

26 At the hearing the applicant tendered a revised second floor plan showing the width of the balcony increased to 2.4m and as this would be in compliance with the PDCP requirements Issue 3 is resolved to the council’s satisfaction and is no longer pressed.

Solar access

27 The council received further shadow diagrams before the hearing and addressing the residual concerns of the council in this regard and the issue was no longer pressed.

Acoustics

28 Mr S Gauld was satisfied that the proposal would comply with the Environmental Protection Authority’s Industrial Noise Policy in respect of plant noise. There is a condition that embraces this concern that the council no longer presses this as an issue.

29 For the above reasons, the appeal is upheld.

Conditions

The conditions are those in Exhibit 2, as amended by additional conditions in Exhibit K concerning Condition 17A to 17G and addressing residual matter discussed during the hearing.

Orders
30 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No DA1445/2004 lodged with the respondent council on 23 November 2004 to demolish the existing buildings on the land and to erect a three (3) storey mixed-use development at Nos 290A - 294 Woodville Road, Guildford, being Lot 71, DP 128916; Lot 6, Sec 3, DP 990 and Lot 5, Sec 3, DP 990 is approved subject to Conditions 1 to 109, in Annexure A.

3. The exhibits except for Exhibits A, B, C, D, E, F, G, H, J, K and 2 are returned.

S J Watts
Commissioner of the Court
sw

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 A privacy screen of minimum height 1.5 metres above the level of the balcony to Units 1 and 8 shall be installed along those balcony’s southern edge and the southernmost 2.5m of their western edge.

Reason: To improve privacy for the neighbour.

17B. The sliding doors to the balcony to Units 1 and 8 need not be of frosted glazing.

Reason: To improve the design.

17C. A privacy screen of minimum height 600mm (above the planter box) shall be installed along the western edge of the communal open space on level one.

To improve the privacy for the neighbour.

17D: The western wall shall be setback from the northern boundary at least 3125mm on ground floor level (with the possible exception of any support column that may be required).

To improve the development.

17E. The wall between the driveway and plant room on the ground floor shall be splayed at 45o of the length of at lest 1.5 metres.

To improve driver vision.

17F. The security gate at the driveway shall be set back at least 3125mm from the northern boundary.

Reason: To improve driver vision for entering and exiting the development.

17G. Details regarding compliance with Conditions 17A – 17F inclusive shall be provided prior to the issue of the construction certificate.