Laymont Pty Ltd v Parramatta City Council

[2004] NSWLEC 419

Land and Environment Court

of New South Wales

CITATION:

Laymont Pty Ltd v Parramatta City Council [2004] NSWLEC 419

PARTIES:

APPLICANT
Laymont Pty Ltd

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10125 of 2004

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Demolition - erection of multi-unit housing

LEGISLATION CITED:

Residential 2A Zone
Upper Parramatta River Catchment Trust Criteria
Parramatta City Council Local Environment Plan 2001

CASES CITED:

DATES OF HEARING:

29/07/2004

EX TEMPORE
JUDGMENT DATE :

07/29/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay, barrister
SOLICITORS
Macquarie Lawyers

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

29 July 2004

10125 of 2004 Laymont Pty Ltd v Parramatta City Council

JUDGMENT

1 This appeal was lodged against council’s refusal of a development application for the demolition of an existing house and ancillary structures and subsequent development of a multi-unit housing development comprising of 3 villas and 14 townhouses at 10 Mount Street, Wentworthville.

2 This site comprises of 2 allotments on the southern side of Mount Street, Wentworthville, being Lot 11, DP 1003967 and Lot 8, DP4605967. The site is essentially T shaped with a total area of 4060 sq m. There is a single detached dwelling on the front section of the property with a garage/out building adjacent.

3 Insofar a number of issues were initially identified, there was subsequent conferencing between the parties and that was undertaken by:

• Mr D Jones (consulting planner for the applicant)
• Mr P Le Bas (consulting planner for the council)
  

4 This resulted in a number of amendments to the original plans, including a reduction of some 3 units.

5 However on the site inspection, a considerable amount of public interest was expressed and the Court heard oral evidence from a number of residents and the Court’s attention was also directed to the bundle of written objections, which have subsequently become Exhibit 3.

6 There seems to be a general consistency with these objections which can be summarised as:

• The suitability of this form and scale of development within this Residential 2A Zone.
• The traffic amenity due to increase volume of traffic from the residents and visitors using Mount Street, bearing in mind the residents local experience with speeding and children activity on the roadway.
• The arrangements for garbage collection, so as to minimise disamenity at the Mount Street frontage.
• Drainage Concern that the increased density of the development will result in increased runoff and exacerbate existing flooding problems in Mount Street.
  

7 Following consideration of these objections, the matter was adjourned by consent, to enable the applicant to respond. Consequently a number of other amendments have been made to the proposal and these include the rearrangement of the garbage storage area towards the front of the property, which then enables collection by a private contractor.

8 As this substantially overcomes the problem of untidy presentation of the garbage bins in Mount Street and impact on neighbours, I am satisfied this adequately addresses the neighbours concerns.

9 With respect to the traffic amenity, a more detailed traffic assessment has been undertaken by Mr C McLaren (traffic consultant). By reference to the RTA guide to Traffic Generating Development publication (guide) he states that:

The traffic generation rates for the proposed 17 townhouses/villas results in a traffic generation potential of a 100 vehicle trips per day or 10 peak hour vehicle trips .

10 By comparison, with the impact of 5 single dwelling houses, the guide states there would be 9 vehicle trips per day per dwelling or 0.85 vehicles trips per hour per dwelling for the weekday period. Application of the RTA traffic generation rates to the comparative 5 single dwelling houses results in a traffic generation potential of 45 vehicle trips per day or 4 peak hour vehicle trips. So the net effect of the proposed development is an additional 55 vehicles trips per day and 6 peak hour vehicle trips. And Mr McLaren says that “in general the additional traffic generation is low and will be ready absorbed by the surrounding road network with minimal impact.”

11 With regard to residential amenity impacts, he refers to the RTA table for environmental capacity, which shows that for a local street the Maximum Peak Hour Volume is 200 vehicles hour, to achieve a satisfactory environmental goal. He finds, that the existing peak hour flow in Mount Street is 98 vehicles hour and with the increase vehicle flows from the proposed development, this total will not result in the RTA’s environmental goal limit of 200 vehicles hour being exceeded for Mount Street. His conclusion is that there would not be unsatisfactory traffic impacts in Mount St. This conclusion is agreed to by council’s traffic engineer and council’s planner and on this basis I do not consider that there is reasonable grounds to refuse the application on traffic impacts.

12 With respect to the drainage, I accept the resident’s evidence that in certain storm events, localised flooding occurs to some downstream properties.

13 However, this development incorporates an on site detention (O.S.D.) system which effectively reduces the rate of runoff in storm events, so that the post development discharge is less than the pre development discharge. I understand from the submissions that the proposed O.S.D is to be finally designed in accordance with the Upper Parramatta River Catchment Trust criteria and that provides a design event of 1: 100 years.

14 On this basis, I accept that the development will not exacerbate down stream flooding, but in fact may marginally improve it. Therefore I do not consider there are substantive grounds to reject the application due to drainage and flooding. This is consistent with the conclusions of council’s engineer and planner, as shown in Exhibit 7. Notwithstanding this I note that there is an obvious lack of adequate drainage in Mount Street, which probably contributes to the flooding detailed by the residents, but that is separate to this development application.

15 The other objections concern the residents dissatisfaction with this form of multi-unit housing on this site. However, the proposal is allowed with consent by virtue of its reliance on the Residential 2B Zoning, at the time of lodgement. On this basis, the council’s assessment officer Mr Mortlake, undertook a detailed assessment of the proposal relative to the prevailing controls.

16 He refers to the zoning objectives that the site is zoned Residential 2A under the provision of the Parramatta City Council Local Environment Plan 2001 amendment No. 11, Old Toongabbie/Wentworthville. The use of this site for villas and townhouses (multi-unit housing) is prohibited nonetheless 2001 LEP Amendment No. 11 contains a saving provision in cl 5 that enables council to determine the application for the reason that it was lodge with council prior to the gazettal of the amendment to 2001 LEP.

17 Therein cl 5 states :

A development application lodged but not finally determined before the commencement of this plan in relation to land to which this plan applies is to be determined as if this plan had not been made.

18 In my assessment of the evidence, the amended plan is of reduced density to which Mr Mortlake originally assessed and more responsive to the objectors concerns. Therefore consideration of the evidence before the Court indicates that this amended proposal demonstrates reasonable compliance with the prevailing controls so as to merit conditional consent.

19 In this regard, I also note that council’s consultant Mr Le Bas is satisfied with the amended proposal and that council makes no further submissions which would result in rejection of this amended proposal. I also consider that the objections raised by the residents have been reasonably assessed so that the proposal does merit conditional consent.

20 Therefore, the Court orders are:

1. The appeal is upheld.

2. Development consent is granted to DA 03/1952 for the demolition of an existing dwelling and ancillary structures and erection of a multi-unit development comprising 3 villas and 14 townhouses at 10 Mount Street, Wentworthville, subject to the conditions in Annexure “A”.

3. The exhibits are returned to the parties except Exhibits 1, 2, 4, 8, A, B, C and D.

___________________________

Commissioner of the Court
nmc/mp