Oasis Horticulture Pty Ltd v Parramatta City Council

[2006] NSWLEC 293

Land and Environment Court

of New South Wales

CITATION:

Oasis Horticulture Pty Ltd v Parramatta City Council [2006] NSWLEC 293

PARTIES:

APPLICANT
Oasis Horticulture Pty Ltd

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11425 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- Townhouse medium density development, existing use rights, height and bulk, setbacks, landscaping, overshadowing, internal amenity, impact on adjoining properties, character of area

LEGISLATION CITED:

Environmental Planning and Assessment Act

CASES CITED:

Fabcot Pty Limited v Hawkesbury City Council 93 LGERA 373

DATES OF HEARING:

11/04/2006 and 16/05/2006

EX TEMPORE JUDGMENT DATE:

05/16/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti, barrister

RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

16 May 2005

11425 of 2005 Oasis Horticulture Pty Ltd v
Parramatta City Council

JUDGMENT

1 This is a judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Parramatta City Council’s refusal of a development application for the construction of eight townhouses on the site known as 26 Bettington Road, Oatlands. The subject site is approximately 1,858 sq m and it is generally flat with a cross-fall of some 1.5 m.

2 The council and the applicant, together with the Court, met on site on the first day of the proceedings and the Court had the opportunity of hearing evidence from a number of objectors, Mr Knapp, Mrs Jones and Mr and Mrs McIntosh.

3 Mr and Mrs McIntosh live at 6 Newport Place at the rear of the subject site and they are concerned about the volume, the built form, the floor space ratio, the parking, and in particular the setbacks to their rear boundary, common boundary with the subject development.

4 The council also received a number of letters from the McIntoshes, and Mrs Phillips concerned about the busy road, Bettington Road, and the traffic that flows along that road and the traffic generation of the development.

5 Mrs Jones of 4 Prince Street is concerned about the parking, the busy road and the increased traffic and the scale and height of the proposed development.

6 The applicant advised the Court that the access driveway to the proposal has been relocated such that from the engineers’ point of view the proposal is satisfactory in terms of sight lines for the basement parking of the development.

7 The proposal is for eight townhouses set in two rows on the subject site and there is basement parking and storage areas for each dwelling with direct access to each dwelling from the basement parking. The site will then have one vehicular access point that is to the basement parking.

8 The council originally assessed the development application and considered that the proposal was not satisfactory for a number of reasons and a statement of issues was provided. In summary, the issues relate to the overlooking of the first floor of the rear townhouses, 5, 6, 7 and 8, and that the proposal is excessively bulky and not consistent with the surrounding built form, height and scale. The other issues that council raised concern the rear setbacks and in particular not complying with council’s Development Control Plan. There was also an issue raised about the soft soil area of landscaping for the proposal and the adequacy of the plans, as well as the issues raised by objectors and the issue of overshadowing in terms of the internal amenity of the townhouses themselves.

9 The Court-appointed expert in the proceedings is Ms Kerrie Gordon and she assessed the development application in terms of council’s controls.

10 I should say at this point in the proceedings the subject site is zoned Residential 2A. Council has a Local Environmental Plan and a Draft Local Environmental Plan and a Development Control Plan for residential development. The subject site, however, enjoys existing use rights and the existing use rights pertain to the site in that the nursery that is currently on the site was established approximately 1959.

11 It is noted that there has been an amendment to the regulation for existing use rights gazetted 29 March 2006, however there is a savings provision which states that development applications not finally determined shall be assessed under the previous regulation.

12 The subject development application while it does not need to comply with the provisions as contained in council’s planning regime because of the existing use rights provisions, and in this regard a decision was handed up to the Court of Lloyd J in Fabcot Pty Limited v Hawkesbury City Council 93 LGERA 373 wherein his Honour held that the zoning and its objectives were not relevant matters for consideration. The Court has assessed the development application in terms of its fit with the existing area.

13 I have also considered the impacts of the proposed development on the adjoining properties and the Court took the opportunity of an extensive walk of the area to understand the feel and character of the area. While this will be a different form of development in that it will be townhouses within a predominantly single detached dwelling house area, when one looks at the aerial photograph the proposed development will not be out of character with the general density within the area.

14 There are significant areas proposed in the development application for soft landscaping, with some 75 per cent of the area is for deep soil planting.

15 The floor space ratio of the proposal is 0.56 to 1 and the character of the area is varied with older residential cottages within Bettington Road, and in the cul-de-sac to the south of the subject site there is a significantly larger proportion of built form to area of the site and the subject development will not be out of character with the area generally.

16 Whilst the zoning objectives may not be the test, in terms of the impacts of the proposed development it is important, even with existing use rights, that one has regard to ensure that the amenity of the adjoining residential properties is maintained with a development of this nature.

17 The Court adjourned on the first occasion and there were further amendments proposed to the plan such that the front dwellings are as initially proposed. They provide for three bedrooms plus an attic area and the attic area is within the roof space, consequently there is a steeper pitch on the proposal than some of the dwelling houses within the area. However, I am satisfied it will not be out of character having regard to the landscape setting that is provided and the setbacks.

18 The rear four townhouses are such that they have been lowered in height by approximately 330 mm for Units 5 and 6 and Units 7 and 8 by some 510 mm and while they are still of a two storey construction I am satisfied, together with the landscaping and together with the setbacks, that they will not represent an overdevelopment of the site or create unreasonable impacts on adjoining properties.

19 The Court took particular note of the juxtaposition of the built elements to the rear boundary. The single storey portion is some 4 m from the rear boundary, the upstairs area is some 7 m from the boundary and I am satisfied that the proposed development will sit comfortably on the subject site and not overwhelm the rear yards of the adjoining properties..

20 With respect to traffic it is noted that many of the residents raised concerns. The proposed development provides for adequate car parking in terms of council’s requirements and the driveway has been designed to the satisfaction of the engineers and traffic and parking would not warrant refusal of the development application.

21 The proposal is one that in the Court’s assessment will represent change within the area, clearly a landscaping wholesale nursery facility will be changed to a residential development but the built form will not be one that is an overdevelopment or one that is of a scale and form that will not sit within the landscape setting as proposed in the landscape plan.

22 The compliance with council’s controls was a matter that was looked at by the Court-appointed expert. It was also a matter that was included in the statement of environmental effects and since the time of the original development application there have been amendments to reduce the size of the development from .62 to .56. There has also been a deletion of the attic rooms for the rear component and the proposal is one that now sits comfortably even when assessed against council’s controls for multi-unit developments. The soft landscaping is well in excess of what council’s DCP requirement. The only non-compliance even if the test was council’s DCP is in terms of the side setbacks and rear setbacks, but in my assessment the proposal is not one that will create adverse impacts for adjoining residents.

23 The development has also been assessed extensively in terms of the overshadowing and there are amendments to the floor layout of the rear dwellings. I am satisfied, on the comprehensive assessment that has been carried out by the architect Mr Pearson and Mr Stephen King who independently assessed the solar access for the proposed development, that the development is one that complies with council’s own development control plan in terms of a minimum of three hours of solar access. It is noted that the dwellings all receive at least three and a half hours to six hours of solar access for at least 50 per cent of the courtyards and also in terms of solar access to living rooms three and a half to six hours and the requirement of council’s DCP is some three hours.

24 While the DCP criteria may not be the test in terms of an existing use rights development, at the same time the Court assesses a development in terms of the amenity that would be provided to future occupants and I am satisfied that the internal amenity for the eight townhouses complies with the controls and is one that is satisfactory and would not warrant refusal of the application.

25 Therefore, on the basis of the evidence to the Court including the evidence that has been brought to the Court today with the additional overshadowing diagrams, the assessment of solar access and the amended plans in Exhibit F, I am satisfied that there is no reason why the Court should not approve the development application.

26 I have considered the concerns of the residents and while people may not embrace change at the same time the amended plans provide for a development that will be compatible with the streetscape and its presentation to Bettington Road. I am satisfied that it will be appropriate in its context and there is adequate provision for parking and the traffic generation would not warrant refusal of the application.

27 Condition 5 concerning the need for privacy measures to the upstairs bedroom areas for townhouses 5 through to 8 is not imposed as on my assessment there is adequate separation distances and there is the opportunity for intervening landscaping and the internal amenity of those bedrooms should not be compromised.

28 I make one further comment and that is the Court did not agree with the Court-appointed expert’s assessment to defer to the council’s controls in terms of the separation distances required for the rear row of townhouses in the development. Instead I have considered the merits of the application and the fact the site enjoys existing use rights.

29 Therefore, on the basis of the Court’s assessment the formal orders of the Court are:

1. The appeal in respect of the property known as 26 Bettington Road, Oatlands, is upheld.

2. The Development Application submitted to Parramatta City Council is determined by the granting of consent subject to the conditions in Annexure “A”.

3. The exhibits except 4, 5, 6 and F are returned to the parties.

___________________

J S Murrell
Commissioner of the Court
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