Norwest Alliance Group Pty Ltd v Parramatta City Council

[2015] NSWLEC 1505

Land and Environment Court

New South Wales

Medium Neutral Citation:	Norwest Alliance Group Pty Ltd v Parramatta City Council [2015] NSWLEC 1505
Hearing dates:	9 November 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is upheld. 2. DA382/205 for the demolition of all existing improvements and the construction of the infill self‑care housing development at 108 Midson Road, Epping is approved subject to the conditions in Annexure A. 3. The exhibits, except exhibits A and B, are to be returned.
Catchwords:	DEVELOPMENT APPLICATION: infill self‑care housing development – whether unacceptable impact on residential character of the area – whether development provides acceptable access – whether unacceptable amenity impacts on adjoining properties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Parramatta Local Environment Plan 2011 State Environment Planning Policy (Housing for Seniors or People with a Disability) 2004
Category:	Principal judgment
Parties:	Norwest Alliance Group Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicant) Mr S Nash, barrister (Respondent)   Solicitors: McKees Legal Solutions (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	10720 of 2015
Publication restriction:	No

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the deemed refusal by Parramatta City Council of Development Application DA382/2015 which seeks consent, pursuant to the provisions of State Environment Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors) for infill self‑care housing development at 108 Midson Road, Epping (the site).

2. The site is lot 13 in DP6837. It is a regular shaped allotment of land containing a residential dwelling and associated outbuildings. It has a frontage measuring 20.15 m to Midson Road, a depth measuring 60.96 m and a site area of 1,226 sq m. The site has a natural fall from north to south of approximately 2.1 m.

3. The predominant land use within the immediate vicinity of the site and in particular to the north is characterised by one and two‑storey dwelling houses. Typically allotments in the vicinity of the site contain a house at the front and a back yard area behind. Directly opposite the site is also a small group of shops on Midson Road.

4. The council maintains that the application should be refused because the proposed development:

1. does not recognise the desirable elements of the residential character of the area.

2. does not provide acceptable access along the street line to the bus stop, and

3. will create an unacceptable amenity impact on adjoining properties.

5. The site is zoned R2 Low Density Residential under Parramatta Local Environment Plan 2011 (LEP 2011). The development could be characterised as multi‑unit housing and as such is prohibited use in the zone although seniors housing pursuant to SEPP Seniors is a permissible use. The application gains the opportunity for permissibility through SEPP Seniors. The proposal is defined as “infill self‑care housing” which is defined as:

“infill self‑care housing is seniors’ housing on land zoned primarily for urban purposes that consist of two or more self‑contained dwellings when none of the following services are provided on site as part of the development. Meals, cleaning, services, personal care and nursing care”.

6. A joint planning report was prepared by Mr Stuart Harding for the applicant and Mr Liam Frayne for the council. SEPP Seniors provides requirements for development at cll 26, 29, 31, 32, 40 and 50 for the development of infill self‑care housing. The Statement of Facts and Contentions identified breaches of cll 25, 26, 29, 31 and 33 although with the submission of amended plans, the council accepted that their concerns were acceptably addressed through:

1. the provision of cycle storage

2. the relocation of the garbage room

3. the provision of a retaining wall at the street frontage and

4. the provision of 1.6 m high sills to windows from living rooms that face the adjoining residential property.

7. I accept that these changes adequately address those matters identified in the Statement of Facts and Contentions.

8. A joint report on access was provided by Mr Mark Relf for the council and Mr Hamish Murray for the respondent on the access contention... The question of access related to the appropriate grades required by cl 26 of SEPP Seniors. Mr Relf helpfully provided evidence that showed that the requirements in cl 26 can be satisfactorily addressed through the realignment of the existing footpath levels to gain access to the bus stop. His report identified the level of changes required and the location of these changes. On this basis, I accept that written evidence has been provided so that residents will have access that complies with cl 26(2) of SEPP Seniors.

9. At the conclusion of the extempore decision, the parties were requested to file agreed conditions of consent that reflected the findings in the judgment. When filed on 11 November 2015, the parties disagreed on conditions relating to the access issued addressed by Mr Relf and Mr Murray. The council sought to impose new condition 12 that states:

12. Prior to the release of a Construction Certificate for the proposed development, the public domain and footpath works are to be approved by Councils Civil Assets Team under condition 10 are to be completed to the satisfaction of Council, with written evidence of this to be provided to the Principal Certifying Authority. All costs for the works are to be borne by the applicant/developer.

10. The applicant opposes condition 12 as it requires work on the public reserve to be carried out prior to the construction of the proposed buildings with the likely consequence that these works will be damaged during the construction of the building. I agree with the applicant’s submission and this condition should not be included. I am satisfied that more than adequate safeguards are included in conditions 10 and 87 to ensure that the footpath is appropriately upgraded to provide safe access to the bus stop.

11. The orders of the Court are:

1. The appeal is upheld.

2. DA382/205 for the demolition of all existing improvements and the construction of the infill self‑care housing development at 108 Midson Road, Epping is approved subject to conditions in Annexure A...

3. The exhibits, except exhibits A and B, are returned.

________________

G T Brown

Acting Senior Commissioner

10720 of 2015 gtb (C) (359 KB, pdf)

Decision last updated: 03 December 2015