Leso v City of Parramatta Council

[2017] NSWLEC 1206

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Leso v City of Parramatta Council [2017] NSWLEC 1206
Hearing dates:	11 April 2017
Date of orders:	18 July 2017
Decision date:	28 April 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	Orders at [25]
Catchwords:	DEVELOPMENT APPEAL: town house development; streetscape presentation; agreement of experts; directions.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Vince Leso (Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: M. Staunton (Applicant)   Solicitors: A. Seton, Marsdens Law Group (Respondent) Mills Oakley (Applicant)
File Number(s):	2016/151970
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal was lodged against the refusal, by Auburn City Council, of development application DA/432/2015. Subsequent to the refusal of the application, by proclamation dated 12 May 2016 the land the subject of the development application was transferred to the City of Parramatta who is now the responsible planning authority. The application sought consent for the demolition of all existing structures and construction of 24 town houses over basement car parking. The development is proposed at 2 Carnarvon Street, 82-84 Wetherill Street North and 59-61 Barker Avenue Silverwater (the Site).

2. Prior to the commencement of the hearing, it was agreed by the parties that a number of the original contentions were resolved by the amendments that have been made to the design and agreed conditions. These changes are incorporated in an updated set of architectural plans that the Court has allowed the applicant to rely on.

3. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

The site and its context

4. The subject site is five allotments of land that have a total area of 3597m². They are legally described as Lots 102, 103, 104, 95 and 96 in DP 12954. The site is irregular in shape with a frontage of 80.64m to Wetherill Street North, a frontage of 13.705m to Carnarvon Street and a frontage of 27.125 m to Barker Avenue.

5. The site is surrounded by a mix of older and newly constructed residential development comprising of a mixture of single and double storey detached dwelling houses, which form the prevailing character of the surrounding area to the south, east and west of the site. To the north of the site are industrial warehouse developments.

Planning Controls:

6. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

7. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The amendments required by the Directions [19] will require submission of an updated certificate.

8. Auburn Local Environmental Plan 2010 (LEP 2010) applies to the site. Pursuant to LEP 2010 the site is zoned R3 Medium Density. The proposal is defined as multi dwelling housing and is permissible, with consent, in the zone.

9. The development is subject to the requirements of Auburn Development Control Plan 2010. The relevant planning controls are contained in:

1. Part 1.0 – Introduction

2. Part 2.0 – Development Application requirements

3. Part 3.0 - Notification requirements

4. Multi Dwelling Housing Chapter

5. Parking and Loading Chapter

Public submissions

10. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with DCP 2010. These submissions raised the following issues:

1. Overdevelopment of the site;

2. Insufficient open space, including within the front setback;

3. Noncompliance with FSR, height and density;

4. Quality of the architectural design;

5. Parking, access and increased traffic generation;

6. Privacy and overlooking;

7. Solar access; and

8. How the construction of the basement will impact on adjoining properties.

These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

11. The Court heard expert planning evidence from Mr Stuart Harding, for the applicant, and Mr Gerard Turrisi for the Council. The experts participated in a joint conferencing process prior to the hearing that sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 5.

The issues for the Court to determine are:

12. The main contention that remains in dispute between the parties is the whether the streetscape presentation of the development is satisfactory. In particular how the front facades of the town houses present to both Wetherill Street and Barker Street. Councils concerns in relation to the amended plans are:

1. Lack of façade articulation for townhouses 21-24, 17-20 and 1-5;

2. Whether the frontage width of the lot addressing Carnarvon Street is sufficient;

3. The depth of the balconies proposed in the front setback and whether they are sufficient to provide articulation and be usable;

4. Whether the unit sizes are compliant and appropriate (townhouses 21-24);

5. The solar amenity to the units (living areas and private open space) is adequate and meets the requirement of three hours; and

6. The functionality of the pedestrian egress from the basement car park.

Consideration

13. Following the onsite view the hearing was delayed to allow for further joint conferencing of the planning experts to explore potential amendments to the façade design and building form to address the concerns of the Council [refer par 12].

14. Following the conference a further joint report of the experts was tendered (Exhibit 7). The conclusion of the joint report was as follows:

15. Mr Seton, for the Council, confirmed that the delegation had not be able to be obtained to enter into an agreement in the proceeding based on the above position of the experts. His submission however acknowledged that the agreed evidence of the planners is that the contentions are resolved by the amendments detailed in their further report.

16. Mr Staunton submits that the planning controls in relation to the desired future character of the R3 zone, and the provisions of DCP 2010 in relation to building design and fulfilled by the amendment to the proposal that have arisen during the joint conferencing process. In particular he emphasises the agreement of the experts that:

• The objectives of the frontage width control are demonstrated to be delivered by the amended design;

• Solar access has been resolved by changes to the internal layout of the townhouses and amendments to fencing;

• Units 21,22,23 have had a bedroom deleted to resolve concerns in relation to unit sizes;

• Pedestrian access to the basement car park have been widened and straightened;

• Fenestration amendments, changes to the front alignment of the townhouses fronting Barker Street and Wetherill Street, increasing balcony depths and providing more emphasis in the architectural design to building entries and other elements have improved the streetscape presentation of the development.

Conclusion

17. I have reviewed the evidence provided by experts to support the resolution of the contentions now agreed. I am satisfied that the experts have appropriately considered the issues raised by the contentions, the public, and the appropriate planning controls, and I accept their conclusions.

18. I am satisfied that the proposal, when amended as detailed in the further joint report (Exhibit 7), will provide a satisfactory streetscape presentation and can be granted development consent.

Directions

19. The applicant is to amend the proposal to:

1. Update the development application, ensuring that the documentation is internally consistent, and to incorporate the changes detailed in the Joint Planning Experts report (as detailed in paragraph 14 of this judgement). The applicant is also to submit an updated BASIX certificate for these amended plans.

2. The applicant is to file and serve the amended plans no later than 15 May 2017.

3. The respondent is to review the amended plans and file, no later than two weeks after the filing of amended plans, amended consolidated conditions of consent, including:

1. any agreed conditions outlined in the expert reports tendered in the proceedings; and

2. updating the revision numbers of the amended architectural drawings and supporting materials in condition 1

3. Identifying any areas of contention with the amended plans, if necessary.

4. Liberty to restore with two days’ notice.

5. Orders will be made in chambers.

20. In relation to direction three, the parties were unable to reach agreement on final conditions of consent. Four conditions remain in dispute, with the applicant seeking for each of them to be deleted from any consent. The disputed conditions are as follows:

1. Condition 18 (u) which states:

The storage of water as part of the on-site detention system shall not be located under any habitual area. In this regard on-site detention underground tank No. 1 shall be re-configured to avoid being located under TH 11. Revised plans addressing the location of OSD tank No. 1 shall be submitted to the certifying authority prior to the issue of a Construction Certificate.

1. Condition 42 (a)(b)(c) (e) which state:

The basement stormwater pump-out system, must be designed and constructed to include the following:

(a) A holding tank capable of storing the run-off from a 100 year ARI (average reoccurrence interval) - 2 hour duration storm event, allowing for pump failure.

(b) A two pump system (on an alternate basis) capable of emptying the holding tank at a rate equal to the lower of:

(i) The permissible site discharge (PSD) rate; or

(ii) The rate of inflow for the one hour, 5 year ARI storm event.

(c) An alarm system comprising of basement pump-out failure warning sign together with a flashing strobe light and siren installed at a clearly visible location at the entrance to the basement in case of pump failure.

…

(d) Submission of full hydraulic details and pump manufacturers specifications.

…

Plans and design calculations along with certification from the designer indicating that the design complies with the above requirements are to be submitted to the satisfaction of the Principal Certifying Authority prior to issue of the Construction Certificate.

Reason:           To ensure satisfactory storm water disposal.

1. Condition 44 which states:

No work is to commence on the storm water system until the detailed final storm water plans have been approved by the Certifying Authority.

Prior to the approval of storm water drainage plans, the person issuing the Construction Certificate must ensure:

(a) The final drainage plans are consistent with the Concept Drainage Plans with the notations there on, approved with the Development Consent.

Note:         The referenced stormwater drainage plans prepared by Nastasi & Associates ref: 10096 shts 1-8 rev; ‘B’ date: 15/05/2017  Concept Plans are concept in nature only and not to be used for construction purposes as the construction drawing. Rectified Stormwater plan addressing all the issues and notes marked on the approved stormwater plan must be prepared with details, and submitted with the application for Construction Certificate to the Principal Certifying Authority for approval).

(b) The proposed On-Site Detention (OSD) System has been designed by a suitably qualified Hydraulic Engineer, in accordance with the Upper Parramatta River Catchment Trust “On-Site Detention Handbook” and Council’s Drainage Code E4 and stormwater Drainage Guidelines.

(c)        The design achieves:

(i)  The design achieves a Site Storage Requirement of 370m3/ha and a Permissible Site Discharge of 130L/s/ha (as per 3rd edition of UPRCT’s handbook)

(ii)  Detailed drainage plans with cross sectional details of OSD storage areas; pits etc., OSD Detailed Design Submission and OSD Detailed Calculation Summary Sheet are submitted and are acceptable.

Reason:   To minimise the quantity of storm water run-off from the site, surcharge from the existing drainage system and to manage downstream flooding.

1. Condition 108 which states:

108.     The roller shutter door to be provided at the driveway entry and exit from Wetherill Street North is to be operated via remote control.  If a swipe card access or an intercom is installed, it is to be provided at the centre of the driveway (not attached on the wall) to the car park in accordance with Clause 3.3 (b) of AS 2890.1 - 2004.  

Reason:           To comply with Australian Standards.

21. The Council provided the following reasoning for the retention of the conditions.

Condition 18(u): the applicant seeks to locate the OSD tank beneath habitable floors of the development. This is likely to have an unacceptable impact on the amenity of future occupants due to noise generated from the OSD tank.

Condition 42(a,b,c,e) and 44: the plans provided with the development application are conceptual only to demonstrate the viability of the proposal. It is standard practice to require more detailed engineering drawings to be prepared at construction phase and for these to be endorsed by the PCA.

Condition 108: the reason for this condition is to ensure safe access to the basement car park and the provision of an entry that does not require the driver to leave their vehicle in order to gain access to the basement car park.

22. In contrast the applicant seeks the deletion of the conditions on the following grounds:

Condition 18(u) : it is the applicant’s position that the OSD tanks is not located in the basement, but is separate to the basement and will not impact the unit above. It is their submission that any overflow can be directed safely to the Barker Street frontage. The applicant argues that the imposition of the condition, by seeking the relocation of the tank, would require a redesign.

Conditions 42 (a,b,c,e) & 44: The applicant seeks the deletion of this condition on the basis that the amended stormwater plans have addressed the requirements of this condition.

Condition 108: the applicant seeks the deletion of the condition as the relocation of the intercom to the centre of the driveway would necessitate widening the driveway which may have a ‘flow-on’ effect to the townhouse designs.

Findings:

23. Relevantly to these proceedings Section 80A of the Act allows for the imposition of conditions if at (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent; or at (f) it requires the carrying out of works relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or at (g) it modifies details of the development the subject of the development application. I am satisfied the conditions in dispute are consistent with this section of the Act and may be applied to the development.

24. Following consideration of the submissions of the parties I am satisfied that there is a reasonable planning purpose for the conditions sought to be imposed by the Council and I find that they should be included in the consent for the development. However to enable the achievement of the outcomes sought by Council in Condition 18(u), with reasonable flexibility, I amend the wording of the condition as follows:

Condition 18(u): The storage of water as part of the on-site detention system shall not be located under any habitual area, where it would have an unacceptable acoustic impact*. In this regard on-site detention underground tank No. 1 shall be re-configured to avoid being located under TH 11, or be treated in a manner that will supress any noise in a manner that ensures it does not have an unacceptable acoustic impact . Revised plans addressing the location of OSD tank No. 1 documentation satisfying this condition shall be submitted to the certifying authority prior to the issue of a Construction Certificate.

* Unacceptable acoustic impact is ‘offensive noise’ as defined in the dictionary of the Protection of the Environment Operations Act 1997 or the exceedecnce of background noise by more than 5 dB(A) as measured over a 15-minute period (LAeq (15 minute).

25. Accordingly I make orders in chambers as follows:

1. The applicant is granted leave to rely on amended plans;

2. The appeal is upheld;

3. Consent is granted to Development Application No. DA/432/2015 for the demolition of all existing structures and construction of 24 town houses over basement car parking at 2 Carnarvon Street, 82-84 Wetherill Street North and 59-61 Barker Avenue Silverwater (Lots 102, 103, 104, 95 and 96 in DP 12954), subject to conditions in Annexure A, with the following amendment to Condition 18(u):

Condition 18(u): The storage of water as part of the on-site detention system shall not be located under any habitual area, where it would have an unacceptable acoustic impact*. In this regard on-site detention underground tank No. 1 shall be re-configured to avoid being located under TH 11, or be treated in a manner that will supress any noise in a manner that ensures it does not have an unacceptable acoustic impact . Revised documentation satisfying this condition shall be submitted to the certifying authority prior to the issue of a Construction Certificate.

* Unacceptable acoustic impact is ‘offensive noise’ as defined in the dictionary of the Protection of the Environment Operations Act 1997 or the exceedecnce of background noise by more than 5 dB(A) as measured over a 15-minute period (LAeq (15 minute).

4. The exhibits are returned with the exception of Exhibit 1, Exhibit B and a copy of the final approved plans and conditions of consent.

…………….

D M Dickson

Commissioner of the Court

151970.16 Dickson (C) (375 KB, pdf)

Amendments

19 July 2017 - Orders made on 18 July 2017

Decision last updated: 19 July 2017