Mohan v Parramatta CC

[2005] NSWLEC 746

Land and Environment Court

of New South Wales

CITATION:

Mohan v Parramatta CC [2005] NSWLEC 746

PARTIES:

APPLICANT
Vaira Mohan

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10762 of 2004

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Refusal of a multi-unit development - low density - visual - acoustic - privacy - overshadowing - overlooking - bulk landscaping - urban design - setbacks

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001

CASES CITED:

Wombarra Pty Limited v Wollongong City Council (2003) NSWLEC 268 ;
Project Venture Developments v Pittwater Council (2005) NSWLEC 191 ;
Zhang v Canterbury

DATES OF HEARING:

6/12/2006

EX TEMPORE JUDGMENT DATE:

12/08/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Hudson, solicitor
of Wilshire Webb

RESPONDENT
Mr T. Pickup, solicitor
of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

8 December 2005

10762 of 2004 Vaira Mohan v Parramatta City Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This extempore judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Parramatta City Council’s refusal of a development application for a multi-unit development of the property known as No. 212 Pennant Hills Road, Oatlands.

2 By way of background, the original development application submitted to the council was for some 24 units in a townhouse style development with basement parking. When the Court met onsite on the first occasion the proposal was for 19 units.

3 Following the onsite hearing proceedings on the first day the applicant sought an adjournment to prepare amended plans and to provide further additional information to correct the relative levels and the survey shown on the plans. This course of action was agreed to by the respondent.

4 As such, when the Court met onsite again on 6 December 2005 the amended plans proposed had been submitted to show an 18 unit development of 15, 3 bedroom and 3, 2 bedroom townhouse style development over a basement car parking area.

5 The subject site is zoned Residential 2B under the Parramatta Local Environmental Plan 2001 and in the zone multiunit dwellings are permissible as well as dual occupancies, dwelling houses and what is known as seniors living development.

6 The subject site together with the 2 sites immediately to the west of the subject site are zoned 2B within a larger area that is generally Residential 2A low density under the Parramatta LEP.

7 The major issue in these proceedings is the interface between the zone boundary, that is, the eastern boundary of the subject site and the southern boundary of the subject site with the low density residential area.

8 A great deal of time was taken in terms of the site inspection to allow the Court to understand the relationship of the adjoining properties surrounding the subject development.

9 There are a number of residential properties that bound the subject site. Firstly, there is No. 212A Pennant Hills Road to the east and on the northern side of the site and then there are a number of residential properties that have their rear yards backing onto the subject site that have frontage to Valma Street. There are 5 properties in this location that share the eastern boundary with the subject site. There are also properties within Parkham Street, in particular Nos 10 and 12, and then there is a property that also shares the rear boundary with frontage from the side street.

10 As I stated, the area can be characterised as a relatively low density area with substantial houses in landscaped/vegetated settings.

11 The controls under which the Court must consider the development application are contained within the council’s LEP and the objectives of the 2B zone include:

(a) To enhance the amenity and characteristics of the established residential area.

(b) To encourage redevelopment of low density housing forms including dual occupancies and multi unit housing where such redevelopment does not compromise the amenity of surrounding residential areas or the natural cultural heritage of the area, and

(c) To ensure that building form, including that of alterations and additions, is in character with the built environment.”

12 The definition of multiunit housing means three or more dwellings on the same parcel of land. The height is contained in cl 39 whereby 2 storeys above ground level for dwellings, dual occupancies and multiunit housing and the relevant FSR for multiunit housing is 0.6 to 1. It is noted that there is a FSR of 0.6 to 1 for dual occupancies as well.

13 The relevant development control plan is that of 2001 and this is a comprehensive DCP which goes to such issues as side boundary setbacks, housing form and bulk, landscaping and soft soil areas, visual and acoustic privacy.

14 The performance criteria for siting of the buildings and open space is to ensure that winter sun access and summer shade are maximised, northerly and eastern aspect is maximised, southern and western facades are minimised and dwellings within the development site in adjoining properties must receive a minimum of three hours sunlight in habitable rooms and to at least 50% of the private open space between 9.00 and 3.00 on 21 June.

15 The provisions also relate to amenity issues and for visual and acoustic privacy the objective is “to ensure that the siting and design of buildings provides reasonable visual and acoustic privacy for residents in their dwellings private open space.”

16 There are a number of design solutions and controls including guidelines for: noise reduction on main roads; habitable rooms to be located away from the source of noise; and schematic diagrams to assist applicants. Visual privacy design solutions are also contained within the document.

17 The streetscape is not an issue in the proceedings. The proposal is generally considered to be in character with the streetscape along Pennant Hills Road, which is an arterial road and very busy road. Buildings must address the street and in this regard the proposed development does address the street and provides for an appropriate setback in terms of Pennant Hills Road.

18 There are also design solutions and controls for setbacks in terms of the setbacks from side boundaries and the front and rear setbacks. The DCP provides for 15% of the length of the side boundary to be contained within a rear setback area. The DCP also provides for a setback to side boundaries to be a minimum of 6 m. It is noted that there is currently a proposed amendment to the DCP, although there is a savings provision such that it would not affect this development application, to only allow for single storey and attic rooms at the rear of sites.

19 There is a section in the DCP on multiunit housing with performance criteria including:

• buildings are sited to minimise visual impact on neighbouring properties;
• to create open spaces;
• provide visual continuity;
• buildings are located in scale to minimise overlooking and overshadowing of private open spaces;
• and buildings are sited and designed to take into account the slope of the land and minimise the visual bulk of the development;
• where there are multiple rows of dwellings buildings should be adequately separated to provide for privacy and buffer zones and dwellings within the development site and adjoining properties must receive a minimum of three hours on the winter solstice.

20 The rear setback is contained in 5.5, that is, 15% soft soil zone. The proposal does not meet this requirement and the performance criteria for design specific types of development, that is multiunit development, provides for a minimum separation between rows of dwellings of 12 m. There are also a number of criteria in terms of landscaping that must be complied with and soft soil landscaping to ensure that multiunit developments are appropriate in terms of the environment and in terms of their contribution to residential areas.

21 The proposed development was assessed by a Court appointed expert and Mr Brett Newbold, a town planner, urban designer and architect. He provided advice to the Court and assisted during the proceedings in terms of assessing sight lines between buildings and looking at the privacy issues and solar access.

22 There were a number of objectors that attended the onsite hearing and the Court heard from the resident objectors and, as I stated, also had the opportunity of visiting their premises.

23 In terms of the context of the site it is important to note that the subject site is somewhat higher in topography than adjoining properties and, in particular, with the interface of the residential properties and, as such, the issue of privacy is one that must be carefully assessed in the Court’s opinion. The change of levels between the subject site, in terms of the Taylor’s property at No. 10 Parkham, it is noted the coping of their swimming pool is approximately 80 RL and the site in that rear corner where it adjoins that residence is 81.5 RL.

24 It is noted that the current tennis court on the subject property is approximately 83 RL and then moving to the properties that currently adjoin the tennis court area in Valma Street, No. 15 has an RL at the gutter of 86 RL and the first floor level is 83.75, slightly above the tennis court but the ground floor level is significantly below, being 80.75. For the property at No. 17 Valma Street the gutter RL is 83.85 and the ridge of that property is 86.6 RL with a floor level of 81.35.

25 As I stated, there is a significant change in levels between approximately 1 and 3 m and, as such, the importance of RLs on the survey plan and the subject development application are important considerations in the assessment.

26 When the plans were amended to 18 units there was also an adjustment to the building levels. The floor levels were lowered by some 600 mm, that is the buildings 3 to 5, and the cross-sections were also undertaken for lines between the various adjoining properties and the proposed units to assess the visual impact. The proposal also lowered a number of courtyards some 300 mm, 400 and 900 in some instances.

27 The issue of overshadowing I will go to first. In terms of the criteria in council’s development control plan overshadowing in my assessment is not a matter that would warrant refusal of the applicant. It is noted that by the removal of unit 1 there would be increased solar access to the property known as No. 21 Valma Street and this was a matter that was raised at the end of the proceedings. The issue of overshadowing of the Taylor’s swimming pool, it is acknowledged that during the winter solstice there will be an increase in overshadowing to their swimming pool but once again this is regarded as a minor extent of overshadowing the proposal does not impact in terms of the equinoxes.

28 The residents also engaged a consultant town planner Mr Nigel White and he prepared a statement on their behalf in terms of his assessment of the proposed development and the Court has also had due regard to his comments.

29 The residents were concerned about overlooking and privacy from the subject proposal as well as the issue of overshadowing, although in many respects this was clarified during the proceedings. The residents, the adjoining neighbours, are also concerned about the perceived bulk of the subject buildings.

30 The proposal is one that is broken up in terms of 5 separate building elements and, whilst this does not comply with council’s guidelines in terms of providing for rows of townhouses, at the same time I agree with the Court appointed expert that the configuration of the townhouses on the subject site with the basement parking is an appropriate design approach/response to the subject site.

31 I will say at this point in my judgment that the subject site is zoned for multiunit development and I can understand the residents concerns about change. At the same time I must also acknowledge what the zoning provisions allow. In many respects the concerns of the residents go to the zoning of the site as well as the impacts of the proposed development. In terms of the interface of zone boundaries it is important that where there is a multiunit development adjoining single residential properties that the privacy and the amenity of those residential dwellings be maintained such that there are not unreasonable impacts on adjoining dwellings.

32 Given this is verbal judgment it is appropriate for me at this point in my judgment to state that I have considered all of the evidence to the Court and I have considered the impacts of the proposed development on the adjoining properties and I have done that in terms of an assessment of the amended plans that were submitted to the Court. While I will state my reasons below I have concluded that the proposed development with the deletion of unit 1 is an appropriate form of development and it will provide a relationship that respects the adjoining residential properties.

33 There are a number of planning principles that have been established by the Court over recent times and in my assessment I have considered the interface principle very carefully. This may often mean at times that the full development potential of a site that is zoned for a higher density, as in this case, can not be achieved and in my assessment of this matter with the deletion of unit this may not be the maximum development that can be achieved on the subject site. However, it is important with a zone interface to ensure that the objectives of the Residential A and the amenity of adjoining residents is protected.

34 The development will represent change to residents but I am satisfied, in terms of the setbacks that have been provided in the proposed development, in particular with the deletion of dwelling units 1 and originally 19, the proposed development provides for a satisfactory relationship between the dwellings on adjacent properties.

35 The side setbacks will be a minimum of 8 m from the properties fronting Valma. For the properties in the first block, the deletion of one townhouse will ensure a minimum distance at that point of 5 m which will not only benefit No. 21 Valma Street but it will also benefit No. 212A Pennant Hills Road and it will provide for an amenity whereby whilst the building will be visible it will not be overwhelming when viewed from these properties. In my assessment I am not relying on the landscaping to provide the necessary amenity although it will clearly contribute to an appropriate interface.

36 It was discussed during the proceedings that it would be appropriate for the body corporate to maintain the landscaping along the eastern boundary where there is the interface with the rear yards of the properties in Valma Street and I consider this to be an appropriate course of action.

37 With respect to the properties that back onto the subject site from Parkham Street I am satisfied that the separation distances are more than adequate. The rear boundary setbacks are at the minimum from the terrace edge 10 m but then to the face of the building significantly more and the setback increases as one goes in a westerly direction and generally the terraces are a minimum of 15 m from the boundaries and then there is an additional 3 m to the face of the walls of the building.

38 In any urban situation even with a lower densities adjoining a site such a setback is more than reasonable. Furthermore, it provides for or achieves the objectives set out in council’s DCP in terms of the setback, that is, “to create a buffer and to create a vegetated area.” The proposal will provide for the continued retention of the healthy trees within that setback area which will be supplemented by further landscaping.

39 Mr Newbold has suggested that there be screens provided to certain balconies and terraced areas and they have been adopted for the Court’s approval of the development application. I will say though that the separation distances together with the landscaping would not generally require the provision of such screens. However, as Mr Newbold put it, it would be a neighbourly gesture, and as such the Court imposes the condition.

40 I am satisfied that the setbacks in the proposed development as now provided for in the amended plan are adequate to achieve the necessary privacy and the sight lines also assist the Court in my assessment of this issue.

41 The additional lattice that was suggested by Mr Newbold is now to be provided within the boundary with the landscaping between the normal 1.8 m lapped and capped fence of the properties onto Valma, therefore not overwhelming those properties which are at a lower level in terms of the height of the fence.

42 There are a number of established benchmarks in terms of site separation. AMCORD provides for 9 m separation and it is also an accepted planning principle that bedrooms are regarded as secondary rooms, as opposed to main living areas, and therefore overlooking is not considered in the same category as from living room to living room.

43 I am satisfied that there are no direct lines of sight that is from living room to living room from the neighbouring properties and furthermore that the potential for overlooking from the courtyards of the proposed development is also limited, that is further ameliorated with the proposed landscaping and other mechanisms.

44 It is appropriate to note at this point that there often a degree of mutual overlooking between rear yards at the same time I appreciate the neighbours’ concerns about the number of units that would be overlooking their properties but with the design as now submitted to the Court I am satisfied that that issue of overlooking and privacy has been considered and that there will be an appropriate coexistence in terms of this development with the adjoining residential A development. Compatible does not necessarily mean the same but capable of existing together (and this has been referred to by the Court in a number of judgments).

45 The question in my assessment is the reasonableness of the proposal in terms of adverse impacts and I am satisfied that the impacts are ameliorated for the proposed development and its relationship to the adjoining properties is satisfactory and the amended plan warrants approval.

46 It is noted that there is a development on the adjoining 2B zone at No. 210 which in many respects reflects council’s preferred model of parallel rows and it is also noted that the RL’s of this particular development are such that it is somewhat overwhelming on the site and when viewed from other properties. The subject proposal has been designed with greater sensitivity and has the benefit of the Court-appointed expert’s announcements.

47 The issue of providing for the 15% of the allotment depth, clearly the subject site is a very large allotment and 15%, while it would provide for a greater area at the rear, clearly the buffer that will be afforded to the properties at the rear on Parkham benefit by the setback and the vegetation that is shown on the subject plans. This departure would not warrant refusal and the separation distances satisfy the objective. As Mr Newbold stated, the sliding louvre screens to the edge of balconies are not necessary but they add protection for perceived overlooking and, in the circumstances of this case, I think it is appropriate that they be provided, although this should not be seen as a precedent that all developments with such separation distances provide these further mechanisms.

48 A judgment referred to the Court in its assessment of this development application, I include Wombarra Pty Limited v Wollongong City Council (2003) NSWLEC 268. In summary this sets out a number of principles for medium density housing fitting into the streetscape of a low density housing area in that it need not be single storey to be compatible and the scale of the medium density development should be visually broken up. This in my assessment is achieved by the configuration of the design as we see it in the amended plans.

49 The existing site characteristics that reduce visual dominance should be retained. When new materials and forms are introduced they should be used with sensitivity to the existing forms and materials. It is noted that the architecture of the proposal is one that would not be an aberration within the area. It provides for similar roof elements and it is also noted that there is a condition with respect to materials and finishes.

50 The other judgment that I refer to is that of Project Venture Developments v Pittwater Council (2005) NSWLEC 191 and this refers to:

Compatibility between a building and its surroundings as the physical impact and the visual impact and whether that is acceptable in terms of the surrounding development and the physical impact such as noise, overlooking, overshadowing and constraining development potential can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task and one must analyse the existing context and then test the proposal against and this can, reduce the degree of subjectivity. For a new development to be visually compatible with its context it should contain or at least respond to the essential elements that make up the character of the surrounding environment and that refers to building heights, setbacks and landscaping and the architectural style and the height of the proposal.

51 The proposed development does not contravene council’s controls in terms of the height. For the setback guidelines it was pointed out by Mr White that there is a non-compliance on the western boundary adjoining the townhouses, the subject proposal being 4 to 5 m and the control provides for a 6 m setback. However, for the eastern boundary, which is the interface with the Residential A zone, the setbacks are more than compliant and there is appropriate landscaping.

52 It is noted that the design of this building with basement parking allows for less hard paved areas and as such some 40% of the site at a minimum is devoted to soft landscaping/deep planting. It is noted also by the removal of unit No. 1 that there will be increased deep planting and this will benefit No. 21 Valma Street as well as No. 212A Pennant Hills Road in terms of the provision of canopy trees.

53 The objectors, Mr and Mrs Taylor, pointed out that there is a sewer line on the southern boundary and it is noted that a condition has been appropriately provided to ensure that this is recognised.

54 I have given real property and genuine consideration to council’s DCP in accordance with the Court of Appeal judgment Zhang v Canterbury and I am satisfied that the proposed development, while it may not numerically satisfy the 15% rear setback or the 6 m side boundary setback, nonetheless it satisfies the objective of or the purpose of such controls.

55 The Court has noted that the plans would also need to provide for rainwater tanks to ensure the irrigation of the landscaped areas and it is also noted that the proposal will be the subject of a ‘deferred commencement’ such that there will be architectural and landscaped plans amended to delete unit 1 and the reconfiguration of the parking for unit 2, in such reconfiguration a minimum of five visitor spaces is to be provided.

56 The other conditions are as generally agreed between the parties.

57 Therefore, on the basis of my assessment and with the benefit of hearing from the residents and comprehensively addressing their concerns in terms of the reasonableness of the development, having the benefit of the court appointed expert Mr Brett Newbold and also the advice of Mr White and the applicant’s landscape architect, I am satisfied that the proposed development is one that is satisfactory and therefore the formal orders of the Court are:

1. The appeal in respect of the property known as No. 212 Pennant Hills Road, Oatlands is upheld.
2. The development application submitted to Parramatta City Council is determined by the granting of a ‘deferred commencement’ consent for 17 multiunit dwellings on the above site subject to the conditions contained in Annexure A.
3. The exhibits, except 1, 2, 12, J and K are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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