Invest 888 Pty Limited v Parramatta City Council

[2017] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

Invest 888 Pty Limited v Parramatta City Council [2017] NSWLEC 1666

Hearing dates:

6 November 2017 with further material filed on 15 November 2017

Date of orders:

24 November 2017

Decision date:

24 November 2017

Jurisdiction:

Class 1

Before:

Martin SC

Decision:

The Orders of the Court are:

 

(1) Leave is granted to the Applicant to rely upon amended plans referred to in condition 1 of the Conditions of Consent attached and marked “A”.

 

(2) The clause 4.6 variation application in relation to minimum lot size is upheld.

 

(3) The appeal is upheld.

 

(4) Development application No 1064/2016 for the demolition of structures and erection of dual occupancy development is determined by approval subject to the conditions annexed marked “A”.

 (5) The Exhibits, save for 1, 2 and 5, are returned.

Catchwords:

DEVELOPMENT APPEAL – actual refusal – dual occupancy – breach of development standard for size of dual occupancies - cl 4.6 application – private open space – solar access

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 97(1)
Parramatta Local Environmental Plan 2011
Parramatta Development Control Plan 2011

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827

Category:

Principal judgment

Parties:

Invest 888 Pty Limited (Applicant)
Parramatta City Council (Respondent)

Representation:

Counsel:
Mr A Pickles SC with Ms F Berglund (Applicant)
Mr A Seton (Solicitor)(Respondent)

  Solicitors:
Marsdens Law Group (Respondent)

File Number(s):

2017/178797

Publication restriction:

No

Judgment

1. Located at 10 Rumsey Crescent, Dundas Valley, in a quiet street opposite Ponds Creek, is a property that Invest 888 Pty Limited (‘the Applicant’) wishes to subdivide, and upon which it seeks to construct two dwelling houses. Various differences between the Applicant and the Parramatta City Council (‘the Council’) about the proposed development have been resolved, but there remain in dispute issues regarding land size, private open space and solar access.

2. Development Application No 1064/2016 seeks consent for the demolition and construction of a two storey attached dual occupancy development with Torrens Title subdivision. An image appears below:

3. The Applicant lodged its development application with the Council on 14 November 2016, and following some communications between the parties over a period of time, in which the Council recommended that the Applicant withdraw its application, the Council determined to refuse it on 17 May 2017. The Applicant appealed to the Court on 15 June 2017 under s 97(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’).

4. At the commencement of the hearing, application was made for reliance to be placed upon amended plans. In the absence of objection of the Council, leave was duly granted, and these plans became Ex A. At the conclusion of the hearing, as a result of the experts’ conferencing, further updated plans were filed with the Court. These amendments included preparation of a landscape plan which the Applicant relies upon amongst other things to seek to meet the Council’s concern about inadequate private open space.

5. The Applicant’s material includes an application made pursuant to cl 4.6 of the Parramatta Local Environmental Plan 2011 (‘Parramatta LEP’) which is included as Ex F, discussed further below at [18].

The Site and Locality

6. The Site has an irregular shape, with a northern frontage of 22.6 metres, eastern boundary of 39.2 metres and a western boundary of 37.5 metres. It runs downhill from the rear to the front by approximately 0.5 metres over 35 metres. The size of the Site is 573.9 sqm, some 26.1 sqm short of the minimum size requirement for dual occupancies of 600 sqm.

7. Currently there is a single storey fibro clad dwelling house on the block which the Applicant describes as ageing and dilapidated. The area is characterised by single and double storey residential dwellings as well as dual occupancy developments. Setbacks are generally uniform with landscaped, manicured setbacks and associated garage access with tandem parking places.

8. Opposite the Site is Ponds Creek, encompassed by land zoned E2 Environmental Conservation and W1 Natural Waterways.

The Planning Framework

9. Under the Parramatta Local Environmental Plan 2011 (the Parramatta LEP) the Site is located within the R2 – Low Density Residential Zone. The objectives of that zone are:

“•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment.

•  To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.”

10. Development for the purpose of dual occupancy is permitted with consent within the R2 – Low Density Residential Zone. The maximum building height permitted is 9 metres, and maximum floor space ratio is 0.5:1.

11. Under cl 4.1, the minimum lot size for subdivision is 550 Sqm. However, under cl (4B) this does not apply to subdivision of a lot if it is a dual occupancy.

12. Clause 6.11(1) of the Parramatta LEP provides as follows:

“6.11   Dual occupancies on land in Zones R2, R3 and R4

Development consent may only be granted to development for the purpose of a dual occupancy on a lot in Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone R4 High Density Residential if the lot has an area of not less than 600 square metres.”

13. Clause 4.6, concerned with exemptions from development standards, seeks to provide flexibility in applying development standards, provided certain requirements are met. Relevantly, the clause provides:

“4.6   Exceptions to development standards

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Secretary has been obtained.”

14. Parramatta Development Control Plan 2011 (‘Parramatta DCP’) provisions considered in these proceedings are:

• Part 1 – Introduction

• Part 2 – Site Planning

• Part 3 – Development Principles.

Part 3.3.2 provides the following objectives in relation to Private Open Space:

“3.3.2 Private and Communal Open Space

Objectives

O.1 To ensure that private open space is designed to provide residents with quality usable private outdoor living areas for recreational and outdoor activities.

O.2 To ensure that private open space is designed for privacy, solar access, and is well integrated with living areas.

O.3 To provide low maintenance communal open space areas for residents that facilitate opportunities for recreational and social activities, passive amenity, landscaping and deep soil planting.

Controls

Design Controls

NOTE: Private open space within the street setback is not included in the minimum private open space area calculation.

Dwelling Houses on large lots (>550m2) and Dual Occupancies

C.1 A minimum of 100m2 of private open space is to be provided at ground level, with minimum dimensions of 6m.”

Part 3.3.5 sets out the following objectives in relation to solar access:

“O.1 To provide thermal comfort for occupants.

O.3 To ensure that sunlight access is provided to private open space and habitable rooms to improve amenity and energy efficiency.”

The design principles regarding solar access are:

“P.1 Development is to be designed and sited to minimise the extent of shadows that it casts on private and communal open space within the development.

P.2 Detached single and two storey, dual occupancy and townhouse dwellings within the development site and adjoining properties are to receive a minimum of 3 hours sunlight in the primary living area, and in at least 50% of the private open space between 9 am and 3 pm on 21 June.”

The Site Visit

15. On the morning of the hearing, I attended the Site, in company with the parties, their legal advisers and experts. I was shown the Site and its relationship with neighbouring properties, in particular other properties nearby which have also been subdivided. The pattern of subdivision in the area was pointed out, as was the use of hedges as a form of barrier between houses and the street, the purpose of which, says the Applicant, is to create private open space.

The Evidence

16. A joint expert Engineering Report [Ex 4] was prepared by Mr Arraj (Applicant) and Mr Rofail (Council). Their joint report concluded that consent conditions could resolve flood and stormwater disposal concerns. They were not required to give evidence.

17. For the Applicant Mr Byrnes, and for the Council, Mr Chong, prepared a joint Town Planning Expert Report [Ex 5]. Each of these experts gave evidence in these proceedings. Areas of agreement reached by the experts related to contentions concerning setbacks, deep soil, and privacy. They were unable to reach agreement with respect to the issues of allotment size, private open space, solar access and the public interest.

Allotment Size and Cl 4.6 Application

18. The Applicant’s town planning evidence, given by Mr Byrnes, is as follows (drawing on both the Joint Expert Report and the cl 4.6 application contained within Ex F). Invoking the cl 4.6 test, compliance with the development standard is unreasonable and unnecessary, and there are sufficient planning grounds to justify contravention because:

• The land size is less than 5% smaller than the minimum land size prescribed, and difference between the Site and this proposal and a compliant lot size would be visually indistinguishable from a development consistent with the remaining planning controls.

• There is no objective with respect to cl 6.11(1), with the only relevant objective relating to the minimum subdivision lot size (cl 4.1) which is to “ensure that new subdivisions reflect characteristic lot sizes and patterns of the area”.

• It is appropriate to have regard to the objectives of the previous Parramatta LEP with respect to minimum lot size, which objectives are satisfied by the development. These objectives, at Cl 4.1A stated the objectives were:

1. To ensure that development for the purposes of a dual occupancy is only permitted on a lot of a size that maintains the low density residential character of adjoining neighbourhoods.

2. To ensure that the area and dimensions of the lot are able to accommodate development that is consistent with the objectives and development controls for dual occupancies.

3. To minimise any likely adverse impact of the development on the amenity of adjoining neighbourhoods.

• Dual occupancies are not prohibited in the area, meaning that dual occupancies, from a character perspective, are supported in the locality.

• Approval would not create an undesirable precedent, as 14 of the 16 properties within the street block are greater than 600sqm. The frontage is consistent with the pattern of frontage widths in the street block.

• The character of the locality is undergoing transition to large and more contemporary built forms that are permitted in the zone, and the bulk and scale of the dual occupancy is comparable to that of a large dwelling house.

• The character of the area would be unaffected by the development as a single dwelling could be designed with the exact same building envelope.

• A compliant lot size would be indistinguishable from the public domain, noting that the site tapers at the rear, which is not perceived from the street. The tapering at the rear is a pattern noted within the street block and the proposal has no impact on the pattern. But for the tapering at the rear, the size of the lot would comply.

• The proposal has an appearance of a contemporary two storey residential dwelling, consistent with the low density character of the neighbourhood.

• The proposal is compliant with all other provisions of the Parramatta LEP and Parramatta DCP, indicating the form of development is appropriate for the allotment notwithstanding the minor departure from the numerical control pertaining to lot size.

• The design ensures that amenity impacts are mitigated, through landscaping, setbacks and siting in relation to other neighbours.

19. In further prosecuting its argument with respect to cl 4.6 the Applicant identified what it says are the unique circumstances of the case, being:

• The very minor departure from lot size control, with other controls able to be met.

• Consistency with the desired future character, noting the emergence of more contemporary two storey housing forms, and that 14 of 16 properties are over 600 sqm in size.

• The proposed delivery of an additional dwelling on the Site to provide for the housing needs of the local community.

• The fact the locality is undergoing transition with larger, more contemporary homes which comply with R2 low density development controls

• The irregular shape of the lot, with a greater tapering than other blocks, some of which other blocks are likely to be developed into dual occupancy developments.

20. The Applicant also pointed to other cases where the Council has approved dual occupancies on blocks below the prescribed size.

21. For the Council, Mr Chong says that:

• The previous Parramatta LEP (2001) prescribed a minimum lot size of 600sqm for dual occupancy development. That dimension has been constant. Approving this development would set an undesirable precedent.

• Council has taken a consistent approach in the underlying objectives of cl 6.11, to ensure that dual occupancies are limited to sites of a minimum of 600 sqm to maintain a low density of residential development within the zone.

• The undersized lots in the area would not be able to accommodate an increased level of density due to their irregular shape and the site area provided.

• There are other development controls (private open space and solar access) which the proposed development cannot meet. The residential amenity achieved is unsatisfactory.

• No sufficient environmental planning grounds have been demonstrated to justify the departure from the development standard.

• The proposal is incompatible with the current and desired future character of the locality. Approval would lead to an undesirable precedent to inappropriate dual occupancy development in the surrounding area.

Private Open Space

22. The experts agreed that Unit 2 provides 100 sqm of private open space with a minimum dimension of 6 m and is compliant with the control. The disagreement therefore relates to the ability of Unit 1 to achieve sufficient private open space. In the Joint Expert Report [Ex 5] both experts agreed – which means that the Applicant’s expert conceded (at p. 15) - that private open space would not be met for Unit 1, as prescribed in cl 3.3.2 Private and Communal Open Space in the Parramatta DCP. However, the expert’s oral evidence differed, at which point he relied upon a construction of the measurement of private open space which led to a different outcome.

23. The Applicant’s arguments with respect to private open space for Unit 1 are as follows:

• There is 100sqm of private open space south of the living room, comprising 60 sqm with a minimum dimension of 6m, and a further 40 sqm with a dimension that tapers from 6 m down to 2.715 m at the rear of the Site.

• The living room at the northern end, facing the street, enjoys an area of 53 sqm of open space between the front boundary and the living room.

• The DCP recognises that private open space of less than 100 sqm and with a dimension of less than 6 m can provide good amenity.

• Council requires 200sqm, not 100 sqm, of private open space for a dual occupancy. This is because Unit 1 will be on a future Torrens allotment and will comprise a dwelling house on less than 550 sqm in area, which means that that is the criterion to be applied (80sqm with minimum 4 m dimension).

• The landscape plan demonstrates that private open space dimensions and quantum allow for landscaping, formalised seating, turfed areas, alfresco area to be comfortably accommodated.

24. For the Council, Mr Chong stated:

• Insufficient area for private open space is a critical indicator that a development is excessive in its scale relative to its site area and is therefore deemed to be an inappropriate form of development for the Site.

• The shape of the lot has led to a poor design outcome which results in spaces that are impractical and awkward.

• The private open space to proposed Unit 1 does not achieve sufficient solar access.

• At the time of assessment, the proposal sought approval for a dual occupancy for the purposes of permissibility which is defined as two dwellings on one lot of land. While it may be convenient to pre-empt the end development of the Site – two houses on Torrens Title land – to do so would circumvent the objectives of the control and undermine the primacy of the development control.

Solar Access

25. The experts agreed that the living room of Unit 1 would receive solar access from 9 am to 3 pm and is therefore compliant with the control. They also agreed that the private open space of Unit 2 receives sunlight to at least 50% of the area for 3 hours between 9 am and 3 pm.

26. The Applicant contends that the addition of a light well directly over the living/dining area in Unit 2 provides substantial amenity improvements through the introduction of natural light. This leads to compliance as thermal comfort to occupants is provided, and solar access is provided to the living and dining room through direct solar penetration and substantial natural light.

27. With respect to external solar access, there are two private open spaces for Unit 1 which adjoin primary living rooms. While the private open space at the rear of Unit 1 does not achieve the DCP required solar access during mid-winter, the open space area at the front receives 100% solar access during the winter. The design therefore incorporates appropriate features to ensure that there is open space with substantial solar access year around.

28. The Council acknowledges that the amended design to Unit 1 to relocate the living room has significantly improved solar access and complies with the DCP; however, private open space fails to receive the required duration of solar access.

Parties’ submissions

Applicant’s submissions

29. The Applicant submits that once the property is subdivided, there is no minimum lot size. The Applicant also identified all the other controls with which the proposal complies: FSR; frontage width; setback requirements. The only non-compliance is the LEP control for lot size, before subdivision. Having regard to the objectives in the DCP, it is possible to establish how amenity can be provided for.

30. Because of the Site’s north-south orientation, even if a single dwelling were located on the Site, it would not be possible to provide solar access to the rear, because the Site faces south. To achieve compliance, solar access must be provided through the front of the Site. This can be done through providing private open space in the front setback.

29. Moreover, the Applicant says that it would be an unreasonable imposition to require a minimum dimension of 6 m for the entirety of the private open space area. The Applicant relies upon the fact that the Control does not say that all of the 100 sqm must have a minimum 6m dimension. To support this argument, the Applicant took the Court to the example of a dual occupancy at 20 Quarry Road, Dundas Valley, where a private open space assessment was made based on the dimensions of 6 m x 6 m: Ex G.

30. The Applicant rejects the “precedent” concern on the basis that there are other undersized sites which have been granted development consent. In any event, the size shortfall is less than 5% of the required amount.

31. There is no reason not to uphold the cl 4.6 objection. The fact that the Site is slightly below the control should not be used to thwart the overriding objectives of the R2 zone. Insisting on strict compliance would infringe the objective.

32. There are particular circumstances of the case which warrant departure: it is a small departure; it is consistent with the desired future character; the departure has already been approved in a number of dual occupancies, of which three are in Dundas Valley; and Council has seen fit to apply the Parramatta DCP flexibility.

33. In the absence of other stated objectives for the lot size prescription, the Applicant’s town planner sought to derive underlying objectives from the former Parramatta LEP. Applying those, the result is that (as Council’s expert agrees) the proposal will not affect the low density character of the area; development controls can be met and there is no adverse impact on neighbours.

34. All controls for dual occupancies are met, in accordance with the Table at 3.1.3.3 of the Parramatta DCP.

35. The Applicant also argues that the amount of open space required is not 100 sqm per unit, but 100 sqm for the development. Moreover, with respect to private open space, the language setting out the requirements is ambiguous.

36. The design principles set out at 3.3.2 (Private and Communal Open Space) apply more broadly than to dual occupancies. Dwelling houses on small lots could include areas with dimensions of less than 4 m. Solar access is available to the front, and both are integrated to living areas.

37. The DCP should be applied flexibly, and such flexibility would not be required but for the requirement for 100 sqm of private open space per unit.

38. The Council’s expert witness agrees that in addition to the area at the rear, private open space could be used in front of the building. Accordingly, the design principles regarding private open space are met.

Council’s Submissions

41. An application made under cl 4.6 must satisfy two things: it must show that development is in the public interest, because it is consistent with the objectives of the standard. It must also demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravention of the development standard.

42. In this case there is no objective stated, meaning that underlying objectives need to be identified. The relevant objective, says the Council, is ensuring planned density. Given that there are five other lots of less than 600 sqm in the area bounded by Quarry Road, Kissing Point Road and Rumsey Road (shown in Ex 2) which could be the subject of dual occupancy applications, supporting this development would exceed the planned density. Moreover, if this development were approved, other dual occupancy development applications on undersized lots would likely follow.

43. Even if the Applicant’s proposed objectives are accepted, problems remain with the environmental planning grounds relied upon by the Applicant: several of the matters cited by the Applicant are not environmental planning grounds; the degree by which the Site does not comply is not an environmental planning ground, nor does Council accept the reasoning that because a site is big enough for a development that justifies its approval; the parties disagree that private open space is met; and dual occupancies are size-limited for a reason.

44. The Council also rejects the Applicant’s arguments as to the “unique” nature of the proposal (which are set out above at [19]). Council does not accept the criticism made by the Applicant, and suggested by a Council document, that it took an inflexible approach to the application, stating that it reviewed the development on its merits. The size departures in other approved developments which relied upon by the Applicant were very minor, being 1.6% and 0.7% respectively for numbers 1 and 13 Yates Road.

45. The Council also challenged the change in position by the Applicant’s witness with respect to private open space: in joint expert report, he opined that private open space enjoyed by Unit 1 was less than that required by the Parramatta DCP, yet in oral evidence, his position changed, such that his view was that the amount of space required was a 6 m by 6 m space as opposed to 6 m for the whole of the 100 sqm, which allowed compliance. Likewise, Council refuted the Applicant’s submission that the amount of private open space called for is only 100 sqm for both Units. The Council’s view is supported by the heading.

46. The solar access result is a poor one, resulting in only one hour of solar access to the backyard. This shortfall, says the Council, is a consequence of the inability of the development to achieve adequate private open space. While a level of amenity may be achieved, it is not the level sought by the Parramatta DCP.

Discussion and Consideration

47. The threshold matter for decision in this case is the Applicant’s application under cl 4.6. Whether or not the Court has power to grant development consent in light of the undersized lot is a threshold matter to consider. Only when this matter is resolved in the affirmative can the proposed development be approved, if indeed it is, upon a consideration of the merits: Wehbe v Pittwater Council(2007) 156 LGERA 446; NSWLEC 827 at [36].

48. An application under cl 4.6 must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances, and that there are sufficient planning grounds to justify contravening the development standard. Moreover, the Applicant must establish that the proposed development is in the public interest because it is consistent with the underlying objectives of the development standard in cl 6.11(1) and the objectives for development in the R2 – Low Density Zone. The concurrence of the Secretary does not arise in this case.

49. Each party differed in its view as to the objectives to be applied against which the standard is to be measured. The Applicant relies upon objectives contained in the former LEP, while the Council says the relevant objective relates to planned density. The Applicant says the Council’s objective – planned density - has been created, with which the Council’s own witness does not agree, while the Council says that the objectives in the former planning instrument were not brought into the current planning instrument. Arguments can reasonably be made for either interpretation.

50. An exercise of inference is called for: in the absence of express objectives, some extrapolation is required in order to answer the question of whether or not the underlying objectives of the control are achieved, for the purposes of undertaking the exercised required by cl 4.6.

51. Council rejected the Applicant’s reliance upon an earlier version of cl 4.1A, which was not carried forth into the new LEP. I do not find the Applicant’s approach to be unreasonable in the absence of express objectives for the control. I find that the current proposal satisfies those objectives. Moreover, given that dual occupancies are permitted in the area, and that the very significant majority of lots exceed the minimum required for subdivision, if planned density is the requisite objective which it is not necessary for me to decide this is also met by the proposed development.

52. As for which grounds cited by the Applicant are in fact environmental planning grounds, the Applicant’s position is that while individual grounds may be insufficient to found a finding in its favour, taken together they need to be sufficient to carry the argument.

53. The Council’s argument that cl 4.6 is a serious matter is a persuasive one: the aim of the clause is not simply to provide flexibility, which flexibility is not unlimited, but to achieve a better planning outcome. I also concur with the Council’s submission that the “unique” characteristics as identified by the Applicant do not in fact have that quality. Nonetheless, they do add to the Applicant’s argument that there are sufficient environmental planning grounds to justify contravening the development standard. These include the relatively small margin by which the lot fails to meet the prescribed standard; the fact that a compliant lot would be indistinguishable from the public domain and but for the tapering, the block would comply; and the fact that the locality is undergoing transition with larger, more contemporary homes which comply with R2 low density development controls.

54. I give weight to the Applicant’s proposition that the development provides for the needs of the community insofar as there is presently one (dilapidated) house on the Site, and the development provides for two new homes, thus furthering an objective of the zone. I also find that requiring strict compliance with the standard would restrict development on the Site, the Site is capable of being developed with limited impact on adjoining properties and the proposed works comply with the majority of the controls contained within the DCP.

55. Based on the evidence before the Court, I am satisfied that in the circumstances, strict compliance with the minimum lot size standard is unreasonable or unnecessary, and that taken as a whole, there are sufficient environmental planning grounds to justify contravening the development standard. The development achieves on balance an appropriate environmental outcome having regard to all of the circumstances. Further, I find that the proposal is consistent with the relevant inferred objectives for the lot-size development standard and objectives for development in the R2 Low Density Residential zone, and is therefore in the public interest.

56. In my view, the clause 4.6 variation application is well-founded, and the application for variation is granted. Accordingly the non-compliance with the lot size is no bar to the granting of development consent.

57. Given my finding with respect to the cl 4.6 application, I now turn to the other matters in contention, namely whether or not the proposed development provides sufficient private open space, and the adequacy of solar access.

58. The Applicant placed reliance upon the differing open space requirements within the Parramatta DCP which are applicable to dual occupancies (100sqm with minimum dimensions of 6m); dwelling houses on lots less than 550 sqm (80 sqm with 4 m minimum dimensions) and multi-dwelling houses (40 sqm with 4 m minimum dimensions) to support the argument that amenity can be achieved in smaller spaces with smaller dimensions.

59. True it is that there are different rates prescribed, but this does not necessarily lead to a desirable planning outcome. I do not accept the Applicant’s submission that the development must only provide a total of 100 sqm private open space for both developments. That to me is straining both the Parramatta DCP’s language, as well as its intent to deliver amenity for dwellings. Accordingly, I find that each Unit must enjoy 100sqm of private open space. This then becomes the starting point for examination of the adequacy or otherwise of the private open space contemplated by the proposed development.

60. The language used in respect of private open space is unhelpfully ambiguous in the Parramatta DCP. The requirement in the DCP is for “a minimum of 100sqm of private open space to be provided at ground level, with minimum dimensions of 6 m”. The arguments put by the Council are that the private open space must have a minimum dimension of 6m for the entire 100 sqm, and that space in the front setback cannot be counted.

61. The Applicant relies upon the dimension as referring to a component of the required space, which is 6 m x 6m, as opposed to applying to the whole amount required. While the Council rejects this characterisation, the Council has previously interpreted the private open space requirement to require a minimum dimensions of 6m x 6m, in the case of a dual occupancy at 20 Quarry Road, Dundas Valley: Ex G. That is an arguable proposition, and for the purposes of this decision, it is a view I am prepared to accept. On that construction, Unit 1 has an amount of 60 sqm compliant private open space in the backyard, as well as a portion of other open space which falls outside the parameters.

62. With respect to the use of front setbacks, again the DCP does not provide the assistance that one may prefer. The DCP uses the term “Note” in stating that the calculation is not to include area within the front setback (see [14] above). The Applicant strenuously argues that for the purposes of calculating private open space, account should be taken of the area in the front setback of Unit 1. Similar front setbacks, says the Applicant, are used as private open space by various neighbouring properties. It is also a response found in certain town house developments. Council has not made the “Note” a control. Mr Chong concedes this, stating that regard should still be had to the Note and that while it is not a control, it is contained within the control.

63. In the circumstances of this case, given the specific characteristics of the property, its irregular shape, its orientation, the landscape plan submitted with the proposal, the peaceful neighbourhood and the locality, I find that the front setback can be used in the calculation of private open space for this proposed development. Under the amended design, the front yard adjoins the living room of Unit 1. The use of the front setback will not be out of place. I am also fortified in this finding by the evidence given by the Council’s town planning expert who conceded that, with the assistance of hedging, it could be acceptable to have private open space in the front yard, in this quiet street. Compliance with the landscape plan will be a condition of development consent.

64. Accordingly, I find that the development achieves the amount of private open space required.

65. The Council also objected to the proposal on the grounds of inadequate solar access. The orientation and shape of the Site makes solar access difficult to achieve. The Applicant’s position is that although the private open space at the rear of Unit 1 does not achieve the DCP required solar access during mid-winter, the area forward of the Unit (off the living room) receives 100% solar access during that period. The Council’s conclusion (based on these same facts) is that Unit 1 therefore fails to comply with the solar access prescribed for private open space. As for Unit 2, the Applicant says that the light well over the living/dining area introduces natural light and improved amenity. The Council agrees that Unit 2 complies overall with the minimum of three hours to the primary living area.

66. Given my finding above that for the purposes of this development it is acceptable for the front setback to be considered as private open space, I find that the solar access requirements for private open space are met for both Units – for Unit 1, due to the access enjoyed from the front, and Unit 2, given the access available to the rear of the Site. The adequacy of solar access is therefore not a ground for refusal of development consent.

67. As to the number of properties which are likely to be potentially affected by the decision in this case, again the parties disagree, with the Applicant looking to the area comprising the block in which the Site is located (being that area bounded by Rumsey Crescent, Summers Street and Kissing Point Road – Ex 5, p.9). Using this area as the comparison point, the number of properties under 600 sqm is 2 out of 16. The Council prefers to draw upon a larger area comprising several blocks, where the result yields 5 “undersized” properties which could become the subject of dual occupancy applications.

68. Given the number of properties which are potentially affected, I do not find the “precedent” argument to be persuasive so as to provide a reason for refusal of the application. The existing subdivision pattern will be maintained with the significant majority of the lots being above 600 sqm. Moreover, not every application for dual occupancy will automatically be given approval, as each application will still need to be considered on its merits.

69. On fine balance, for the reasons set out in this judgment, I have concluded that no reason exists to decline the granting of development consent to the proposal.

Orders

70. The Orders of the Court are:

1. Leave is granted to the Applicant to rely upon amended plans referred to in condition 1 of the Conditions of Consent attached and marked “A”.

2. The clause 4.6 variation application in relation to minimum lot size is upheld.

3. The appeal is upheld.

4. Development application No 1064/2016 for the demolition of structures and erection of dual occupancy development is determined by approval subject to the conditions annexed marked “A”.

5. The Exhibits, save for 1, 2 and 5, are returned.

Senior Commissioner Martin

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Annexure A (C) (243 KB, pdf)

Decision last updated: 27 November 2017