Longhill Projects Pty Ltd v Parramatta City Council

[2010] NSWLEC 1040

Land and Environment Court

of New South Wales

CITATION:

Longhill Projects Pty Ltd v Parramatta City Council [2010] NSWLEC 1040

PARTIES:

APPLICANT
Longhill Projects Pty Ltd

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10789 of 2009

CORAM:

Murrell C

KEY ISSUES:

DEVELOPMENT APPLICATION :- for multi unit dwellings, privacy, streetscape, character of the area, isolation of sites and precedent

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan

CASES CITED:

Zhang v Canterbury City Council [2001] NSWCA 167
BP v Campbelltown
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING:

28 and 29 January 2010

EX TEMPORE JUDGMENT DATE:

29 January 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Loethor (solicitor)
SOLICITOR
Bartier Perry

RESPONDENT
Mr P Marincowitz (solicitor)
SOLICITOR
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

29 January 2010

10789 of 2009 Longhill Projects Pty Ltd v Parramatta City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 The applicant in these proceedings is seeking to erect a multi-unit development on the site known as No. 84 Tintern Avenue and No. 23B Robert Street, Telopea.

2 The development is proposed to be in three buildings with two townhouses in each building. The townhouses would all have frontage to Robert Street and the Tintern Avenue would form the side boundary to what is known as unit No. 1. Strictly speaking or technically speaking this is a multi-unit development although for all intents and purposes they will have the appearance of townhouses.

3 The council rezoned the land in 2001 such that the controls allow for multi-unit development in this area bounded by Wylde Street, Tintern Avenue and Robert Street and it is noted that there is a creek on the eastern side of the site such that this then forms a zone boundary to a higher density area.

4 The area is generally single storey houses erected after the subdivision of the land. There was a previous planning regime, which allowed for single storey villa development in the area and there are a number of sites that have been developed consistent with the previous planning controls. The current planning regime allows for, as I stated, multi-unit development. It also allows for dual occupancy development within the area.

5 The Court met on site the first morning, of these proceedings and heard from a number of resident objectors. The resident objectors gave evidence to the Court and the Court also had the opportunity of a walk around the area to understand the character of the area.

6 Ms Susan Haylock gave evidence to the Court and she resides in a villa within the vicinity. She is concerned about the proposed development increasing traffic in the area on what is regarded, or she considers to be, a dangerous bend and the fact that the proposed development will be two storeys as opposed to single storey and therefore not in keeping with the area and the leafy bushland of the area.

7 Mr Kang of Robert Street, opposite the subject site, expressed concern about the visual and privacy impacts of the proposed development on his property and also the changing streetscape nature of a two storey development compared to the existing single storey development in the area.

8 Mr and Mr Brant, the adjoining owners at 84 Tintern Avenue, consider the proposed development would be out of character and an overdevelopment of the site. In their opinion four dwellings would be more appropriate with the middle building removed. They are concerned about privacy, both visual and oral, on their property and the Court also inspected their pool area to have a greater understanding of the proposed development on their side southern boundary.

9 The Court has considered all the evidence of the Court and it had the benefit of a joint report from Mr James Nangle, a consultant town planner for the applicant and Mr Jonathan Goodwill a senior development officer with the council. The Court granted leave for the amended plans to be the subject of the proceedings and the Court notes the parties agreement with respect to costs. The amendments go a considerable distance to satisfying council’s concerns on the issues that were raised in the Statement of Facts and Contentions.

10 The Facts and Contentions that were originally filed, I will just briefly go through because it is important to note that this development application has been amended considerably in terms of the original application that was submitted to the council. For example, attics have been removed and the number of dwellings. Council also raised initially setbacks to the street as an issue and these have been increased, that is to Robert Street. The bulk of the proposed development was raised and the plans have been amended. Privacy concerns were also raised with respect to adjoining properties and the applicant has provided screens to the upper windows and a further amendment during these proceedings sees the provision of blade walls or fin louvres to the upper storey side windows of dwellings that are in close proximity to the rear yard of No. 84.

11 The council also raised disabled access as an issue. This has been satisfied through the amended plan and there were a number of landscaping concerns that the council raised that have been addressed through an amended plan and further amendments were made yesterday to the landscape plan to address the concerns with respect to overshadowing of the yard and swimming pool area at No. 84 Tintern Avenue.

12 The issues that remain in contention are site consolidation and development on isolated sites. The contention as posed by the council is that:

The proposed development would result in the creation of three isolated sites, No.s 23, 25 and 25A Robert Street. These sites are zoned residential 2(b) and do not comply with the minimum frontage requirement for multi-unit house developments, the application fails to comply with the requirements of the DCP, that documentary evidence be submitted to demonstrate that a genuine and reasonable attempt has been made to purchase the isolated sites. Furthermore, the application does not include concept plans which demonstrate that despite the failure to comply with the frontage requirements the isolated sites could be developed in an orderly and economic manner.

13 Public interest is also raised by the council. That is in terms of not complying with site consolidation, and the objectors’ concerns are ones that the Court must have regard to in its assessment of this development application. The area generally is a bushland leafy vegetated area and this is clearly a desirable attraction for residents of the area who wish for it to continue as such.

14 The Court has considered the evidence and the concerns of the council and for site consolidation and development of isolated sites council reasonably raised the concern that the approval of this development would create a precedent in terms of other applicants wishing to invoke. In many respects the assessment of this is a two-step process.

15 First of all the Court needs to consider whether in fact No. 23 would become an isolated site by virtue of the proposed development. In this regard it is interesting that when referring to isolated sites, and it has been fairly and squarely raised by the council, it is the plural sense of isolated sites, that is No’s 23, 25 and 25A. Although I do understand from Mr Goodwill’s evidence that he is not concerned about 25 and 25A because these sites are battleaxe allotments at the rear of No. 23 that were developed for dual occupancy each containing a rather large dual occupancy dwelling on same and that subdivision took place in 1993 and the development applications for the dual occupancy dwellings in 1994 and it is unlikely, and I agree with him that it is unlikely, that they would be redeveloped in the foreseeable future. So in many respects the council’s controls regarding isolated sites needs to be looked at in terms of only No. 23 and then 23 in combination with 25 and 25A.

16 This is an extempore judgement so I will not go into great detail, but suffice to say that the planing regime has been carefully considered. The council has helpfully taken the Court to the controls in which the Court must consider the application. The council’s development control plan of 2005 is a comprehensive DCP for development within the Parramatta City Council area and it contains provisions for building envelopes in general principles for development and refers to special precincts. In terms of the controls the Court was taken to, and I will note that in terms of the DCP part 2 refers to context and site analysis and clearly every site must be considered in its context as opposed to in isolation.

17 The council provides for building envelopes within the DCP and this includes height controls as well. The height control for the subject site is two storeys plus an attic and there are also minimum frontages which are required for multi-unit housing that is a minimum of 24 metres including for each street frontage in the case of a corner site. I note that the subject site is an L-shape site and the frontage to Tintern Avenue is 13.4 metres and the frontage to Robert Street is some 58.5 metres, therefore the subject site only complies on the long frontage to Robert Street. Nonetheless, at the end of the day, council is satisfied that the minimum requirement to Tintern Avenue is not a matter that warrants refusal of the application.

18 The other controls that the Court must consider include landscaping. The objectives are to conserve significant natural features of sites and to retain mature vegetation. There are a number of trees proposed to be retained and generally the shrubs and trees along Robert Street will be retained in the proposed development, similarly the camellias and other shrubs that adjoin the property at No. 84 in the front garden area will be retained and incorporated into the overall landscape concept.

19 I must give central consideration to the development control plan as required by the authority of Zhang v Canterbury City Council [2001] NSWCA 167, a judgment of the Court of Appeal. While development control plans are discretionary at the same time I must provide reasons as to why the controls/guidelines in the development control plan are not complied with and they must as I said become the focus of my consideration for the assessment of the development application.

20 The site consolidation of development on isolated sites is contained in part 4.1.11 and the site consolidation objectives are:

1. To encourage site consolidation of allotments for multi-unit housing and residential flat developments in order to promote the efficient use of land and to avoid the creation of isolate sites.
2. To encourage site consolidation of allotments for multi-unit housing and residential flat developments in order to promote the efficient use of land and to avoid the creation of isolated sites.
3. To encourage the development of existing isolated sites in the manner that responds to the sites’ context and characteristics and that maintains a satisfactory level of amenity.

21 The design principles state:

1. Development for the purposes of residential flat buildings, high density multi-unit housing, terrace housing, is not to result in the creation of an isolated site that could be developed in compliance with the relevant planning controls including the Parramatta LEP 2001 and this development control plan. Council require appropriate documentary evidence to demonstrate that the genuine and reasonable attempt has been made to purchase an isolate site based on a fair market value. At least one recent independent valuation is to be submitted as part of that evidence and is to account for reasonable expenses likely to be incurred by the owner of the isolated site in the sale of the property.
2. Where amalgamation of the isolated site is not feasible, applicants will be required to demonstrate that an orderly and economic use and development of the separate sites can be achieved. Applicants will be required to detail an envelope for the isolated site indicating height setbacks, resultant site coverage sufficient to understand the relationship between the application and isolated site, the likely impacts the development will have on each other such as solar access, visual and acoustic privacy and the impacts of the development of the isolated site and the streetscape must also be addressed.
3. The development of existing isolated sites is not to detract from the character of the streetscape and is to achieve a satisfactory level of amenity including solar access, visual and acoustic privacy. Development of isolated sites may not achieve the maximum potential, particular height and floor space ratio and will be assessed on merit. Where adjacent sites are developed concurrently site planning options for development as an amalgamated site are to be explored.

22 I refer back here as it is important that I provide the zone objectives. The subject site as I stated is zoned under the Parramatta Local Environmental Plan 2001. The Court is to consider the objectives of the zone under clause 16.3. The overall aims and objectives of the plan include to provide opportunities for a range of housing types to accommodate the needs of the community.

23 The aims and objectives of the plan include to improve access to the city and facilitate maximum use of improved public transport, to protect and enhance the natural environment including remnant bushland.

24 Clause 16.3 requires that the Court consent must not be granted unless the development is consistent with the objectives of the zone which the development is proposed to be carried out and in the residential 2(b) zone objectives are:

a) To enhance the amenity and characteristics of the established residential area and
b) To encourage redevelopment of low density housing forms including dual occupancies and multi-unit house where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area and
c) To ensure the building form is in character with the surrounding building environment and to ensure the road network has the capacity to cater for increased development.

25 Development that is permissible with consent includes: dual occupancy; dwelling house; multi-unit housing; and terrace housing. In terms of the definition the Court was taken to the definition of ‘multi-unit housing’ and this means “three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling but does not including any other forms specifically defined.” Terrace housing means the same as multi-unit housing except there must be a minimum front setback of 1.5 metre with vehicular access only to the rear. The development control plan provides for a minimum width of 18 metres for terrace forms of housing as opposed to 24 metres for multi-unit housing.

26 Mr Goodwill has provided the differences between the requirements in the development control plan for multi-unit housing as opposed to dual occupancies. For both forms of development the floor space ratio is 0.6:1 and for multi-unit housing two storeys plus an attic is permitted while for dual occupancy two storeys.

27 The landscaping requirement of 40% is the same for both forms of development and 30% for deep soil. The difference is in terms of private open space where 100 square metres is required for a dual occupancy as opposed to 40 square metres for multi-unit housing.

28 It is noted that the proposed development before the Court has an FSR of 0.5:1, whereas the guidelines provide for 0.6:1, and clearly from the plan it can be seen that the open space areas are compliant for multi-unit dwellings and significantly greater for in particular for two of the units with large rear yards.

29 This case has been crystallised in that the main and the only contention now from the council’s point of view, I must also consider the objectors concerns in my assessment is the issue of site consolidation and in this regard I have carefully considered council’s concerns and in particular the concern about precedent.

30 As this is an extempore judgment I say at this point that I have decided the development proposed warrants approval. I have carefully considered the development control plan provisions and at the same time I must assess the merits of the development application. I am of the opinion that the individual merits of this case when I assess the context of the proposal in respect of the surrounding development, that is the residential dwelling houses, the dual occupancy development of 25 and 25A and then the ultimate outcome for the planning of the area and what the zone objectives provide and contemplate I am of the opinion that the proposed development warrants approval.

31 With respect to the isolation of sites, that is No.’s 25, 25A and 23 whether one isolates only 25 and 25A or whether one considers them as three together that would be isolated having regard to the fact that the frontage of 23 including the access handle which is attached to the title of the land is some 22 metres, excluding the access way it is some 18 metres, and therefore it does not qualify in terms of council’s guidelines in the DCP for a 24 metre street frontage to allow multi-unit development

Concept Plans

32 Whilst not submitted at the time of the development application and belatedly submitted to depict what could in a conceptual sense be developed on No. 23 in isolation having regard to the fact that the council does not quarrel with 25 and 25A given the potential that has been achieved on those sites.

33 Having regard to Mr Goodwill’s evidence, similarly, if I take the same line of thinking for 25 and 25A and that is the development of 25 and 25A for the dual occupancies will for all intents and purposes be similar to the multi-unit development if I take the same view for the future redevelopment of No. 23. I do agree with Mr Goodwill that the terrace form of housing, that is three dwellings, even though access could be gained from the rear may not on a merits assessment be one that would be appropriate although I do not have an application before me and it must be clear that I am not making any judgment in that regard but if it was redeveloped for dual occupancy which is also shown in the concept plans, that would not be inconsistent with Mr Goodwill’s evidence.

34 In many respects in terms of the future overall planning of the area if 23 was to be amalgamated with the subject site then 25 and 25A would ultimately on the total redevelopment of the area as such be two dual occupancies in the middle of a multi-unit development, and from an overall planning point of view that may not achieve the best outcome.

35 One must have regard to the objectives of the zone as well as what the provisions for site consolidation are and whilst the council states that by not including No. 23 in the proposal then the maximum potential could not be gained. At the same time, if I look at the objectives of the zone, the objectives of the zone indicate that one must have regard to the area and its context, and while the consolidation provision seeks to maximise sites for multiunit development, at the same time we can see that the are is a relatively large street block zoned for multi-unit development and there has only been one uptake of that zoning to this point in time.

36 In my assessment it is not inconsistent with the orderly and economic development of the land to exclude No. 23; as this is still capable of future redevelopment, whether that be terrace housing or probably more appropriately a dual occupancy development and that will fit in terms of the context of the area having regard to the dual occupancy redevelopment at the rear of No’s 25 and 25A. Alternatively, while I do not believe it is feasible in the foreseeable future, the redevelopment of 23, 25 and 25A together is another scenario although given that 25 and 25A were only developed in the mid-90s that it is probably an unrealistic scenario.

37 In terms of the technical aspect of whether excluding No. 23 from the subject development isolates No. 23, in my assessment I do not consider this to be the case, and I say this for the reason that 23, 25 and 25A are considered to be isolated sites so taking 23 which is the street frontage and leaving 25 and 25A results in an isolation in the technical sense of 25 and 25A. So in a technical sense I do not consider that the lack of incorporation of No. 23 in the proposed development is one that would warrant refusal of the application.

38 Because of the circumstances of the case I also do not believe that it would be a precedent and I stated my reasons earlier as to the fact that 25 and 25A are already developed for dual occupancy dwellings. One must have regard to the context and not just the strict application of the development control plan. The context of this case is that it could not be readily invoked by other applicants to isolate a site that would be a natural fit with a future multi-unit development. In this regard I am quite clear that allowing this development is not a precedent because of the individual circumstances of the case. I agree with the council that precedent is always a concern and in terms of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 the judgment of his Honour Justice Lloyd, precedent is a matter that the council and the Court must always turn its mind to in terms of whether the approval could be readily invoked which is the principle also articulated in the BP v Campbelltown of Justice Bignold.

39 I am guided also by the objectives of the zone which is to enhance the amenity and characteristics of the established residential area. The fact that the subject site will not achieve the absolute maximum in terms of development and that the development of No. 23 included in the subject site would allow for an additional three dwelling units is a relevant matter but it is not determinative in my assessment of the application. Twenty-three could still be appropriately and perhaps more appropriately in the overall context and overall outcome for the area, be developed for a dual occupancy development that would be in character with the area.

40 The proposed development will not reduce the potential for redevelopment of No. 23 in terms of external impacts on No. 23 whether it be overshadowing or overlooking or privacy concerns. The proposed development is well contained within its site on No.s 86 and 23B and as I said 23 could still be appropriately redeveloped.

41 Objective (b) of the zone in the LEP also states to encourage redevelopment of low density housing forms including dual occupancies and multi-unit housing where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural area. I am satisfied the proposed development is consistent with the zone objectives which is required to be considered under cl 16.3 of the LEP.

42 In terms of the orderly and economic development object in s 5 of the Environmental Planning and Assessment Act 1979 I am satisfied the proposed development is the orderly and economic development of the land. Whilst it may not achieve the absolute maximum density permissible it is also rather academic to say whether two or three lots will then remain as isolated lots. One must have regard to what is developed at the rear of 25 and 25A and what would be appropriate in terms of surrounding development for that particular island of dual occupancy in the middle of this multi-unit precinct zoned in 2001.

43 The zone clearly allows for dual occupancies as well as multi-unit development. I realise and I understand that one’s attention in 4.1.11 is directed at maximising multi-unit development in the area and therefore not isolating sites but the circumstances of this case are clear in terms of the proposed development will not provide for an impediment to the development of No. 23 in an appropriate manner. Clearly any future development on No. 23 needs to be considered on its merits and in the context of the area.

44 I need to address the objectors’ concerns. The objectors did raise a number of issues. In many respects the objectors’ concerns go to the zoning of the land and what is now permissible development and an appreciation that there has been a change in what is contemplated for the precinct by the 2001 Local Environmental Plan.

45 The previous regime, as I stated, encouraged and only permitted single storey villa homes whereas now the emphasis has changed with the 2001 LEP although there has been very little take up of that potential in this particular precinct. The proposed development is clearly contemplated within the current planning regime but I go further and say that the two storey development will not be one that is imposing within this existing predominantly single storey residential area and it will not create unreasonable impacts on the existing low density nature of the area. It could be seen further down Robert Street to the east where the creek bed is where there is a change in zone to a higher density form of housing. It is noted that Telopea Station is within close proximity of the subject site and the site is appropriately zoned for, not high, but higher density multi-unit housing.

46 The concerns of the residents relating to the character of the area, I am satisfied with the proposed landscape setting, the retention of many of the existing shrubs and the planting of canopy trees on the subject site, that the ultimate development is one that will sit comfortably within the streetscape of both Tintern Avenue and Robert Street and be appropriate in terms of respecting the nearby bushland area which is extensive within the area. In my assessment the proposed is not an overdevelopment of the site and indeed the FSR is below the maximum potential.

47 A concern of the residents is also the issue of traffic and parking. The proposed development provides for the appropriate amount of parking in the basement and this is not raised by the council as an issue and in my assessment the proposed development will be self contained. Clearly people have the option of parking on the street if they wish from time to time as do all other residents.

48 In terms of the corner of Tintern Avenue and Robert Street, people should obey road rules and the road configuration for the density of the area and the capacity of the roads is not exceeded. I note this matter is not raised as an issue by the council.

49 It is understandable that residents do not always embrace change and this development will represent the beginning of change in a precinct zoned where there has not previously been multi-unit development.

50 It is also noted that in context of the street that the redevelopment of No. 21 provides for two storey plus an attic. In many respects this provides a transition to the higher density or residential flat buildings further down Robert Street where the zoning allows for higher density development.

51 With respect to the privacy concerns of Mr Kang on his property in Robert Street, I note it will be at least 35 to 40 metres from the subject development, nonetheless the applicant has still agreed to change the balustrading treatment for the middle townhouses, that is 3 and 4 however, although given the separation distance, this is not necessary but the applicant has agreed to same.

52 With respect to the privacy impact on No. 9 Tintern Avenue and the overlooking of their yard and swimming pool area, the proposed development will represent change for the residents of No. 84 given the long side boundary with No. 84. However in my assessment the buildings have been sited, and the design of the development, in particular now with the additional fin louvres and the shutters on the upstairs rooms, I am satisfied that there is no unreasonable overlooking and the privacy of the swimming pool area in particular will be maintained by the treatment of windows that the applicant has agreed to incorporate into the design of the dwellings.

53 In further discussion it became clear that the owners of 84 requested that appropriate plantings be not of an excessive height along their eastern boundary and the tree schedule has been changed in the amended landscape plan. I am also satisfied that with the height of the RLs of the floor of the dwellings of the multi-units, the height of the existing colorbond fence with lattice treatment and the proposed planting of lilli pillies on the boundary with 84 will provide for appropriate privacy for the continued enjoyment of that property.

54 In summary, with the amendments that have been agreed to by the applicant and the conditions resolved between the council, I am satisfied that the proposed development will provide for an appropriate fit within this area that while it may not rapidly undergo change, will eventually see change with redevelopment. It is important in areas such as this that the change is one that respects not only what is contemplated in terms of the future zoning but also respects the amenity of the existing residential low density properties that we see in the area and I am satisfied that this development will provide that appropriate fit.

55 Accordingly on the basis of my assessment above the formal orders of the Court are:

1. The appeal in respect of the property known as 86 Tintern Avenue and 23B Robert Street, Telopea is upheld.
2. The development application submitted to Parramatta City Council and as amended and shown in the plans known as exhibit A and H, is determined by the granting of consent subject to the conditions in Annexure A.
3. The exhibits are returned to the parties with the exception of the amended conditions, the amended landscape plan and the architectural plans. The Court will also retain exhibits 1 and 8.

___________________

J S Murrell