Rou v Parramatta City Council

[2009] NSWLEC 1185

Land and Environment Court

of New South Wales

CITATION:

Rou v Parramatta City Council [2009] NSWLEC 1185

PARTIES:

APPLICANT
Jia Rou

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10077 of 2009

CORAM:

Hussey C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Dual occupancy development, compatibility with streetscape, access, traffic impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 2005

DATES OF HEARING:

22 May 2009

EX TEMPORE JUDGMENT DATE:

22 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr R O'Gorman-Hughes (Barrister)

RESPONDENT
Mr D Loether (Solicitor)
SOLICITOR
DLA Phillip Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

25 May 2209

10077 of 2009 Jia Rou v Parramatta City Council

This decision was given extemporaneously.

It has been revised and edited prior to publication.

JUDGMENT

Background

1 This appeal was lodged against councils refusal of a DA for the demolition of an existing dwelling and construction of an attached 2-storey dual occupancy at 1 Wyuna Place, Oatlands. The application is also for the Torrens title subdivision of the development.

2 Insofar as a number of issues were raised initially, the applicant has responded with amendments to address these issues. In particular the height of the building has been reduced and there is a consequential reduction in the garage level of one of the units so as to achieve a satisfactory driveway gradient of the driveway. This concern arose because of the height of the building platform above the street.

3 The full details of the facts are stated in the Statement of Facts and Contentions in which I rely.

4 The initial issues concerned:

• Streetscape impacts
• Bulk and Scale
• Landscape
• Traffic impacts
• Public Interest/Objections

5 For the appeal, the parties agreed to the appointment of Mr L. Fletcher as the single expert for planning matters and he provided a detailed assessment, resulting in his conclusion that the application merited conditions consent, subject to satisfactorily resolution of the traffic issue.

6 I note that prior to this the application had been subject to a number of s 79(c) assessments resulting in a recommendation for approval by the council officer.

7 Following the consideration of Mr Fletchers report, the council has accepted this conclusion and now does not appose the granting of consent subject to resolution of traffic issues.

The site

8 The site is described as Lot 13 in DP 31813 and it has an area of 910.7sq m. It is situated on the northern and high side of the street and has a significant fall from the rear of the property to the street. The surrounding development comprises predominantly single storey detached residential dwellings, with the majority of new dwellings being 2 storeys.

9 The following controls apply:

• Parramatta LEP 2001; under which the site is zoned Residential 2(a) and the proposal is permissible with consent.
• Parramatta DCP 2005;

10 The parties agreed to Mr L Fletcher being appointed the single expert for planning. He prepared a detailed report, which became exhibit 1. In addition to this, a number of the neighbours maintained their objections to the property on the basis that it:

• it does not suit the character of the street
• is excessively bulky
• it will provide a poor access arrangement due to the 2 x tandem garaging
• it will exacerbate the existing traffic problems in Wyuna Place.

11 In response to the planning issues, Mr Fletcher’s detailed assessment concluded:

The proposal is permissible with consent in the 2(a) Residential zone pursuant to clause 16 of the Parramatta LEP 2001. The proposal is also fully compliant with development standards for minimum allotment sizes, FSR and building height under the LEP and these are not in contention.
The primary non-statutory document is Parramatta DCP 2005. The Statement of Facts and Contentions identifies 18 Parts of the DCP as being relevant to the proposed development. However, the proposed development's compliance with only four of these, namely the Streetscape, Building Form and Massing, Landscaping and Parking and Vehicular Access are identified as contentions in these proceedings.
From my review of the plans of the proposed development and my inspection of the site and the locality, it is my opinion that the proposed development reasonably satisfies the objectives and requirements of Council's DCP in relation to its impact on the streetscape. The proposed development mirrors the predominant alignment and pattern of development in the locality. The proposed building is oriented primarily towards the street and the rear yard, is setback from its front and side boundaries so as to be consistent with the general pattern in the street and retains a large landscaped rear yard as well as substantial areas for landscaping in the street setback. The proposed building is two storeys in height and is to be constructed of rendered brickwork with a pitched terracotta tile roof.
For these reasons I consider that the proposed development responds to and reinforces the spatial characteristics of the existing suburban environment and results in a visually coherent and harmonious interrelationship between buildings, landscaping and open spaces. In my opinion the building design is in harmony with form, mass and proportions of other development in the streetscape, particularly the more recent developments which tend to be two-storey buildings. In my opinion the proposed development is also fully compliant with the "Design Standards" provisions of the DCP in relation to "streetscape.
In relation to the bulk and scale of the building, in my experience, a guide as to the acceptability or otherwise of the building bulk in any particular locality is derived by reference to development controls such as FSR, building height, setbacks and building envelope controls. In the present instance the proposed development is fully compliant with these development controls in the LEP and the DCP.
From my inspection of the locality, it is my opinion that the apparent bulk of the proposed development will be very similar to other recent developments in the same street including particularly several relatively new dwelling houses in Wyuna Place and Bells Road. Therefore, on that basis I consider that the height and bulk of the proposed development is acceptable and appropriate.
The fact that the proposal may be readily identifiable as dual occupancy housing, and the fact that it may be the first in the street, does not in my opinion render it unacceptable or warrant refusal of the application. Dual occupancy housing is clearly permissible within this zone and is consistent with the zone objectives.
Additionally, from my examination of the available shadow diagrams it is my opinion that the proposal will not result in unreasonable overshadowing of neighbouring properties and will not therefore unreasonably affect the amenity enjoyed by those neighbours. No other direct amenity impact has been raised by Council in the identified contentions.
In relation to the provision of adequate and appropriate landscaping for the proposed development, the total landscaped area is calculated as 47% of the site area and therefore easily meets the DCP requirement of 40%. Similarly, as almost all of this area would qualify as deep soil zone, I am confident that the proposal would also easily meet the DCP requirements for deep soil landscaped area.
Under these circumstances it is my opinion that concerns regarding landscaping are not sufficient reason to warrant refusal of the development application. Given the landscaped area available it is my view that this contention can be adequately addressed either by the provision of appropriate detailed landscape plans or by appropriate conditions of development consent.
Having regard to all of the above, my conclusion is that the streetscape impact of the proposed development and its bulk and scale are acceptable and that there is no public interest issue that would prevent the granting of consent to the proposed development. I consider the proposal to be a satisfactory development in regard to the matters for consideration under Section 79C of the Environmental Planning and Assessment Act, 1979.

12 Having considered all the evidence and undertaken a view, I am satisfied that this form of dual occupancy development is permitted in this Residential 2(a) zone. Even though most of the residents do not like this design, nevertheless I am satisfied that it complies with the relevant minimum controls in the DCP.

Traffic and access

13 One of the matters raised by the neighbours concerned the driveway gradient. As I have noted, the development has been partly lowered so that the main driving gradient is now approximately 16%. Whilst this is relatively steep, it is not so excessive so as to warrant rejection.

14 Another objection concerned the tandem garage and associated manoeuvring. However I understand that council prefers dual occupancy to have individual single entry garages and this consequently results in tandem garages for the larger units.

15 In the subject circumstances, I am satisfied that the combined driveway should work in an effective manner and provide reasonably safe entry/exit to property, even though this involves a reversing movement. But that is consistent with the majority of other dwellings in this cul-de-sac and not grounds for refusal.

16 However, I consider the landscaping type along the frontage should be carefully selected to ensure that visibility for vehicles and pedestrian is maintained at a satisfactory level.

17 Regarding the traffic amenity, the specific controls are contained in clause 4.5 of the DCP. I understand that Wyuna Place has a road reserve in the order of 15 m with a carriageway of approximately 7 m. Such a road would have an environmental capacity in the order of 300 vph.

18 Considering this cul-de-sac would have an estimated traffic volume of 200 movements/day, then the incremented change for 1 additional unit would have little if any effect on this environmental capacity. Also, I am satisfied this road arrangement allows for reasonable on-street parking and the incremented parking change is likely to be indiscernible. I also note that the traffic issue was dealt with in the section 79C assessment (Foli 202) and no objections raised. Accordingly, I am satisfied the proposal demonstrates reasonable compliance with the traffic control provision 4.5.

19 Insofar as concerns were expressed about the road safety, particularly the nearby intersection, I note that there has been recent traffic improvements/calming devices constructed in the near vicinity. But I do not consider the incremental change from this dual occupancy would be sufficient to warrant rejection on the grounds of traffic impacts.

20 Another matter is landscaping, which I am satisfied as being dealt with by way of a detailed performance condition.

Conclusion

21 In summary, I accept the parties agreement that the planning issues are satisfactorily resolved in this amended application and that the traffic/access arrangements are also satisfactory as mentioned above. Therefore it is reasonable to grant the consent orders.

Court Orders

22 The Court orders by consent:

1. The appeal is upheld.
2. Development consent is granted to Development Application number DA/634/2007 for the demolition of the existing dwelling and construction of a dual occupancy development at 1 Wyuna Place, Oatlands subject to conditions in Annexure A.
3. The exhibits may be returned except for Exhibits 1, 4, A and B.

___________________

R Hussey
Commissioner of the Court
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