Saab v Parrmatta City Council

[2003] NSWLEC 366

>

Land and Environment Court

of New South Wales

CITATION:

Saab v Parrmatta City Council [2003] NSWLEC 366

PARTIES:

Paul Saab
Applicant

Parrmatta City Council
Respondent

FILE NUMBER(S):

10609 of 2003

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Development Control Plan :- future desired character

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

22/12/03 to 23/12/03

DATE OF JUDGMENT:

12/24/2003

LEGAL REPRESENTATIVES:

Mr P Clay, barrister
instructed by Macquarie Lawyers
Mr J Johnson, barrister
instructed by Storey & Gough

JUDGMENT:

- 6 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

100609 of 2003

Roseth SC

24 December 2003

Paul Saab

Applicant

v

Parramatta City Council

Respondent

Judgment

Introduction

1 This is an appeal against the deemed refusal of a development application to erect a mixed use building containing 200m2 of commercial space and 17 dwellings over basement parking on lot 104 DP 128564 and lots 1 and 2 DP 1825, known as 197-199 Woodville Road, Merrylands.

The site

2 The site is on the eastern side of Woodville Road, on the corner of Farnell Street. The site amalgamates three allotments each containing a detached house. It has a total area of 1,188m2.

3 The development along Woodville Road is mainly single-storey detached houses. Farnell Street has a growing number of two-storey houses. The land along Woodville Road is zoned Mixed Uses 10. The area around Farnell Street is zoned Residential 2(b), allowing two-storey townhouses.

The proposal and its history

4 The applicant proposes to demolish the existing houses on the site and to erect a four-storey building, of which the ground floor contains commercial space and the upper floors contain 17 dwellings. In the basement there is space for 27 cars and a loading dock.

5 The applicant lodged the development application in August 2002. A long period of negotiations and amended plans followed. Following notification of the last amendment, the council received three letters of objections from two objectors. In May 2003 the council received a report from its planning staff recommending approval. The council deferred its decision, which, at the time of hearing, had still not been made. The applicant lodged the appeal in May 2003.

Relevant legislation, planning instruments and policies

6 Local Environmental Plan 2001 (LEP 2001) zones the site 10 Mixed Use zone. Development Control Plan 2001 (DCP 2001) establishes detailed development controls. The Floor Space Ratio (FSR) for this site is 1.5:1. The maximum number of floors is three, with an additional floor allowed where this does not adversely impact on the privacy and solar access of adjoining properties. The DCP’s objective for Woodville Road is:

“to encourage buildings that allow for mixed uses in the form of commercial/retail and support services at the ground floor and residential on the upper floors (shop top housing)”

7 State Environmental Planning Policy 65 – Design Quality of Residential Flat Development (SEPP 65) establishes, among things, design principles for apartment buildings.

The issues

8 The council submitted a Statement of Issues containing four issues, with several sub-issues under them. These were discussed and reformulated during the hearing. The first two issues were based on the design principles of SEPP 65, namely:

· In relation to the Principles of Context, Scale, Built form, Density and Aesthetics, the issue was whether the proposal was compatible with its surroundings (ie height, density and setbacks)?

· In relation to the Principles of Resource and energy and Amenity, the issue was whether is the solar access and through-ventilation of the apartments was acceptable?

· Whether the impact on 201 Woodville Road was acceptable?

Compatibility with the surroundings

9 The council’s planning expert was Mr B Newbold, a town planner and urban designer. The applicant’s expert was Mr N Dickson, an architect, planner and urban designer. The main difference between them was the differing weight they gave to the recent re-zoning of the site. Mr Newbold believed that the existing character of single-storey houses should be respected. Mr Dickson considered that the future zoning indicated the desired future character of Woodville Road. Both experts sought support for their position from DCP 2001. Mr Newbold took his cue from the many parts of the DCP that emphasise the need to respond to context and to be compatible with existing and desired neighbourhood character. Mr Dickson relied on cl 5.7.3 of the DCP, which deals specifically with Woodville Road, stating that the objective of the controls is to encourage buildings that allow for mixed uses, with commercial or retail at the ground floor and flats above.

10 Mr Newbold‘s report included three examples of apartment buildings that he considered would be more suitable for this site. From these examples I assume that Mr Newbold would prefer the proposal to step down to two storeys at the side and to have a larger landscaped setback in the front.

11 Although they did not specifically state it, I understood the experts to be in agreement that the proposal is not compatible with its existing context. In support of its claim that that context is about to change, the applicant produced a map showing development applications on sites along Woodville Road, some of which had received consent while others were under consideration. The applications are for three and four storey buildings. Two proposals, which had received consent, were tendered. The proposals appear of similar bulk and scale to that proposed here.

12 I note that cl 1.5 of DCP 2001 states that new development is to be compatible with existing as well as desired neighbourhood character. However, this kind of objective is easier to pay lip service to than to achieve in practice. In my opinion, in the case of sites along Woodville Road it is not possible to be compatible with both the existing and the future character. The future character produced by a FSR of 1.5:1 and a maximum of four storeys is just too different from the existing. The FSR of the existing houses along Woodville Road appears to be in the order of 0.2:1. Thus the permissible density under the new zoning is more than seven times that of the existing.

13 In cases where the rezoning has so drastically altered the existing density, the only achievable objective for new development is to be compatible with the future character. There would be no point in this proposal lowering the edges of the building to two storeys, only to find itself adjoining sites that have been redeveloped to three or four-storey buildings.

14 In my opinion, the proposal is compatible with the likely future character of Woodville Road. It satisfies the principles of Context, Scale, Built form, Density and Aesthetics in SEPP 65.

Solar access and through-ventilation

15 On the second day of the hearing, Mr Dickson suggested eight amendments that increase the solar access of the apartments. According to Mr Dickson, 12 out of 17 dwellings achieve three hours of sunlight on a living room window at mid-winter. Mr Newbold, who had insufficient time to assess the amendments, agreed that at least ten dwellings achieved three hours, though he doubted the other two. If Mr Dickson is correct, 70% of dwellings achieve good solar access. If Mr Newbold is correct, 60% do. As the two dwellings in dispute are likely to receive something in the order of 3 hours sunlight, in my opinion the solar performance of the proposal is acceptable.

16 According to Mr Dickson, 12 out 17 dwellings had excellent through-ventilation, while the other five had acceptable through ventilation. Mr Newbold said that only eight dwellings had acceptable through ventilation. The difference between them was that Mr Newbold counted only those dwellings whose living room windows faced the prevailing winds, whereas Mr Dickson counted all those that had windows on at least two walls of the living room. I note that none of the dwellings are completely devoid of through ventilation. About half of them have excellent through-ventilation, while the others have a reasonable level. The performance on through ventilation is not a reason for refusal.

Impact on 201 Woodville Road

17 The Court heard the evidence (given on site) of Mr Pastor, the owner and occupant of 201 Woodville Road, the property adjoining the site to the south. His concern was overshadowing and loss of privacy. Mr Newbold was satisfied that Mr Pastor’s privacy would not be unduly affected. He supported, however, the concerns about overshadowing.

18 The dwelling at No 201 has three windows in its north wall, to the living room, study and dining room. The living room has a window also to the west. All rooms now receive sunlight all day. As a result of the development, the sunlight to the study would be entirely cut out at mid-winter and the living room it would be reduced to about two hours, some of which would be through the west window only. The impact is significant.

19 The rear yard of No 201 is in shadow for most of the day during mid-winter cast by its own garage. In the late afternoon, however, it now receives sunlight, while the proposal would overshadow it. The impact would be to further reduce the solar access to a rear yard with poor solar access. The impact, again, is significant.

20 Despite the above findings, I do not think that the impact on No 201 justifies refusal of the application. I note that DCP 2001 allows a fourth storey on sites along Woodville Road only where this does not impact adversely on the privacy and solar access of adjoining properties. While this was not discussed in the evidence, it appears from the shadow diagrams that a three-storey building would have the same shadow impact on the north windows of No 201 as a four-storey building. This is because the windows face a side boundary and are therefore vulnerable to even relatively low levels of development to the other side of that boundary. The same comment appears to be true of the overshadowing of the rear yard. Moreover, while the impact is severe, No 201 will not be deprived of sunlight at mid-winter, and will receive sunlight at other times of the year. Given the rezoning of the area (including No 201) the level of impact is acceptable.

21 For the above reasons the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to erect a mixed use building containing 200m2 of commercial space and 17 dwellings over basement parking in accordance with Drawing Nos 1-11, Issue LEC 4, prepared by Parramatta Design and Development, on lot 104 DP 128564 and lots 1 and 2 DP 1825, known as 197-199 Woodville Road, Merrylands is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibit E.

_________________

Dr John Roseth
Senior Commissioner