Sahyoun v Parramatta City Council

[2007] NSWLEC 211

Land and Environment Court

of New South Wales

CITATION:

Sahyoun v Parramatta City Council [2007] NSWLEC 211

PARTIES:

APPLICANT
John Sahyoun

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10785 of 2002

CORAM:

Hoffman C

KEY ISSUES:

Section 96 Application :- Conditions of consent to amendment applications, streetscape, carparking, laundry noise, stormwater detentions.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Planning Scheme Ordinance 2001

DATES OF HEARING:

10/04/2007 and 11/04/2007

EX TEMPORE JUDGMENT DATE:

11 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr Johnson, barrister
instructed by
Andrew Miller & Associates

RESPONDENT
Mr Marincowlitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

11 April 2007

10785 of 2002 John Sahyoun v Parramatta City Council

JUDGMENT

1 This is a Class 1 appeal between John Sahyoun and Parramatta City Council in regard to two matters. The first is a condition of consent by council to an amendment application. The second is in regard to a s 96 amendment application to the development that was approved in appeal 10785/2002 on 15 April 2003.

2 The development is located at 22-24 Joseph Street, Rydalmere, and consists of seven 2-storey townhouses in four buildings. It has been constructed and is nearing completion. During construction, compared to the approved plans, a number of changes had taken place. Some of the changes have been dealt with already by council or the construction certificate certifier.

3 The matters before me are condition 58 of a modified consent issued by council on 17 October 2006. That condition in DA819/2000/A stated:

“Tiles to be placed over the existing roof and be of a deep slate colour. Reason, to ensure appropriate finishes.”

4 The applicant’s issues in regard to this are:

Issue 1 is deleted.
Issue 2, the applicant contends that condition 58 should not be imposed.
Particulars.
(a) The roof has already been constructed using Colorbond roofing in shale grey colour.
(b) Neither the material nor its colour are inappropriate either generally or in the context of the streetscape.
(c) It is not possible to simply “place tiles over the existing roof” as required by the condition. The roof trusses are not designed for the extra load of the tiles together with the Colorbond material. It would be necessary to remove the existing roof, install new trusses and refix battens prior to tiling the roof.

5 The other matters are in DA/819/2000/B in which the applicant sought approval of:

1. Relocation of the laundries from the kitchens of units 1-4 into the garage of each unit.
2. Modification of unit 7 by the deletion of the steps and balustrade between the dining room and the living room. Comment: This originated from a prior amendment approved that eliminated the split floor level between the dining room and the living room. This had not resulted in any increase in height of the unit; it simply meant the living room had the same ceiling height as the dining room.
3. A western window in the entry foyer of unit 4 was deleted and the opening made a solid wall.
4. The on-site stormwater detention system had been altered due to the finding, during construction, of some Sydney Water Authority sewer and stormwater pipes on the property in locations that the Authority did not expect them to be.

6 The respondent’s issues in regard to that matter were,

1. Issue 1 was deleted.
2. Objectors. The matters raised by the objectors as outlined in the statement of basic facts dated 21 February 2007.
3. The respondent submits that in the circumstances of the case, the issues are capable of being resolved by the conditions of consent.

7 The applications had been notified for public Exhibition, and a number of objections and petitions had been lodged. The immediate and only neighbour of the subject property to the north of the site at 20 Joseph Street, Mr McLean, and two other near neighbours, Mr S Mezzina of 13 Joseph Street and Mr P Wilson of 15 Joseph Street, gave oral evidence of impacts of the development and the proposed changes. Mr B Berry of 3 Urunga Street, Dundas supported their objections and criticised the apparent lack of accurate documentation to show all of the changes to the development as built. The respondent said that the lack of documentation had been noted by council too and additional information had been sought, and it had been received and assessed.

8 Oral evidence for the applicant was given on site by:

• Mr J Sahyoun,
• Mr P Sahyoun and
• Mr R Sahyoun.

9 Expert evidence for the council was given at the hearing by:

• Mr J R H Goodwill, senior development assessment officer and town planner, and

10 Expert evidence for the applicant was given by:

• Mr A J Minto, consultant town planner.

11 The summary of the objectors’ concerns tendered by the respondent were,

1. Lowering of Courtyards for units 1 and 2.
2. Insufficient length of garages to park two cars and carry out washing in units 1-4.
3. Excavation has had an impact on the fence between the proposed development and the adjoining property at 20 Joseph Street.
4. Whether there is sufficient volume in the amended detention basin.
5. Whether there will be undue noise from the washing machines and dryers in the garages, and whether the windows of the laundries should be left closed at all times.
6. Whether the lack of space for cars in garages will increase cars parked in the road.
7. Whether the tile roof should be installed.
8. Whether the roof should be metal but of a darker colour.
9. Whether a repainted Colorbond roof will last long enough or be strong enough.
10. Whether there is undue heat generated from the existing roof.
11. Whether the roof should be changed to a darker colour to be more in keeping with the surrounding area.

12 The parties had agreed on a single engineering expert to be appointed by the Court. Mr L Appleyard had prepared a report and both parties accepted this, and he was not called for cross-examination. Essentially, Mr Appleyard said in regard to condition 58 that the roof trusses for the almost white Colorbond metal roofing were not strong enough to hold the concrete tiles that had been the approved roofing material in the original development consent. To apply condition 58 would require the existing roof trusses to be removed, and probably the top plates of the wall frames and any lintels over openings. Concrete tiles would weigh about double the existing roof sheeting and stronger structures would be necessary to support it.

13 The applicant accepted that concrete roof tiles were the approved roofing material, but Mr Minto said the sheet metal in Colorbond shale grey tone was acceptable. He said there was a variety of roofing materials and colours in the street, and he did not see this building being the only one with a white roof as creating such a difference that it should be changed to darker tiles or dark sheet metal. Being at the end of the cul-de-sac and off the alignment of the street, it is not a dominant site. Also, he thought a white or pale grey roof would help achieve better heat reflection and insulation of the buildings.

14 Mr Goodwill said that the applicable residential development control plan required any development to have regard to the streetscape and context of the site. The development, although medium density, had been approved at a time when that was permissible. The zone of the land now meant only detached houses or dual occupancies in the future, as currently existed on Joseph Street, except for the subject development.

15 The development is white brick walls and a white roof that stands out starkly in the streetscape and contrasts with nearly all the other houses that have terracotta or concrete tile roofs of a darker colour than the walls. Mr Goodwill said only one other building in the street had a metal roof, and it is a house addition and the metal roof is darker than the walls so it fitted into the streetscape better than the subject. Although the site is at the end of the cul-de-sac, it would be seen by its neighbours every day from the street, and cl 4.2.1, Streetscape, in the development control plan required development to recognise predominant elements such as materials and colours that contribute to the character of the street in order to achieve objective 0.2 to produce a coherent and harmonious relationship between development, landscape and open space.

16 Mr Goodwill noted the councillors had, after much debate and on-site inspection, preferred the originally- approved concrete tiles and had added the requirement for dark colours of slate. He did not see the need to go to tiles so long as the existing sheeting was repainted a darker colour, or removed and replaced with Colorbond of a darker colour. He agreed with the objectors on Colorbond Jasper, which is an olive green-brown that would reduce the stark white appearance of the development, and reduce its visual scale to fit in better with the detached houses.

17 The applicant said that Colorbond could not be repainted and repainting would nullify the manufacturer’s warranty. The respondent produced the manufacturer’s Blue Scope Steel specification for repainting Colorbond that said, in summary, it is readily repaintable given proper procedures, and the warranty can be negotiated with the company depending on circumstances. The applicant contested that aspect no further but resisted repainting on the evidence of Mr Minto.

18 The objectors supported Mr Goodwill’s evidence on the streetscape impact and the need at least to paint the roofs a darker colour. They did not wish to enforce conditions that would cause undue financial hardship to the applicant.

19 Mr McLean said the pale grey roofs that actually looked almost white had been in place for a year or so to date and were on his southern side so that the northern sun, especially in summer, reflected heat onto his bedroom windows such that his house was much less comfortable than before the development. He pressed for the change. The applicant put that heat reflection or radiation may be possible from the white masonry walls of the proposal, but unlikely from the roof due to its pitch and the relative heights of the McLean’s house and the subject development.

20 The respondent submitted that previous reports by another council officer, who had now resigned from the council, had indicated the colour shale grey as existing, however that was never accepted by the councillors. The position of the council is as stated in condition 58. The respondent also submitted that the impact on the street and the McLeans is real, even if it is the bright glare of the all-white buildings creating their lack of fit into the streetscape and the discomfort to the immediate northern neighbour.

21 I agree with these submissions. Implicit in the original requirement of concrete tiles is that the roof would be more textured than sheet metal, and the usual colour of roof tiles is not pale grey verging on white. It can be seen in Joseph Street the range of colours is dark grey to terracotta. The anticipated appearance of that original consent is not what the subject buildings produce, even though the original consent did not specify a colour for roof tiles.

22 The respondent pressed a condition in Exhibit 15 for the repainting and future maintenance of the metal roof in the event that the Court did not insist on replacing the existing with concrete tiles or new Colorbond, both of which would involve considerable expense, the concrete tiles especially involving the expense of new roof trusses and some framing.

23 The applicant said the maintenance component of the draft condition is unreasonable as that is usually left up to an owner. I disagree with the applicant’s submission on that. It is not unusual to require maintenance in the future of specific parts of any development, and the circumstances of this case justify that requirement, including that all roofs of the buildings be maintained to ensure a uniform colour.

24 In regard to other concerns of the objectors, I note the agreement of the applicant to repair and straighten the northern boundary fence on the common boundary with 20 Joseph Street, once the materials placed by Mr McLean to stop his soil erosion are removed, and that Mr McLean will do works to retain his soil clear of the fence. The fence is not the subject of this appeal and is at this stage a matter between neighbours.

25 The detention basin redesign has been assessed by council engineers and is considered satisfactory in volume and construction. The objectors’ concerns appear to have been aroused by an incomplete and small scale set of plans supplied to them by council that did not show all the details. The respondent does not press this as a matter that the Court should refuse.

26 In regard to the length of the garages of units 1-4 being insufficient for two cars in tandem, this is related to the relocation of the laundries. The laundry equipment is placed where there was in the original approval steps down into each garage. The steps were removed due to a prior amendment application approval to lower units 1-4 such that the level of the garage floor at the rear where the laundries have been built is level with the family room adjoining.

27 There is a tiled section of the floor for the laundry and it was measured at the view to obtain the length from the tiles to the garage entry door. The front bumper of a car with its wheels at the edge of the tiles would overhang about 160 mm, and in Mr Goodwill’s opinion leave room to access the laundry equipment. Also, he said, there was no specified length for tandem garages in the council’s control plans, but the available length with the overhang is 10 m, and that would allow two 85 percentile cars to just squeeze in bumper to bumper, but he did not expect most families who were occupants of the units to have two large cars. If one car is smaller they would both fit easily, he said. Further, if units 1-4 only had room for one car each, the overall development would still have enough on-site parking for council’s requirements with one space to spare, he said.

28 As a result of more than adequate on-site parking, he did not expect any overflow parking onto the street. In any case there did not appear to be a high demand for on-street parking at the moment. He said that the laundries as relocated were acceptable from those points of view.

29 The other aspect of the laundries is that initially they were in the kitchens of units 1-4 near the development’s common driveway. Now they are at the rear of the units with a window into each Courtyard facing the McLean’s bedrooms at 20 Joseph Street. Mr McLean is concerned the noise of the washing machines and dryers could be disturbing to sleep at night.

30 Mr Goodwill said that use of washing machines and dryers is part of normal suburban domestic amenity, and in low density situations are often in laundries placed the usual 1 m side setback off neighbours’ boundaries such that it may be only 2 m to the neighbour’s house. In this case, the laundry windows are 4 m from the side boundary across the Courtyards, and Mr McLean’s house has its driveway on the south side adjoining the subject property. As a result, the separation distance between buildings is about 8 m. It was noted on site that the dryers installed in the laundries do not have external vents; they will vent into each garage.

31 Mr Goodwill thought the sporadic use of the washing machines and dryers would not cause unacceptable impacts on normal suburban residential amenity. I accept that evidence.

32 In regard to the lowering of the Courtyards of units 1 and 2, this had occurred due to the previous approval to lower the floor levels of units 1-4. As an incidental matter, this lowering reduces the visual impact and increases the privacy for the McLeans. The lowering of the floor level of units 1-4 would have meant if the Courtyards of units 1 and 2 were left at the approved levels, there would need to be steps up from the units to the Courtyards. The council regarded the further excavation of the Courtyards as appropriate and a direct result of the approval to lower the units.

33 The retaining walls around the Courtyards were shown in the original consent and the additional excavation had made them of necessity deeper, but their top courses were at approved levels and the retaining walls properly constructed in thickness and gravel backfilled with drainage behind the walls. The council supported approval of the Courtyards as lowered and I accept that.

34 Other matters I recall raised by the objectors such as:

• the loss of a tree said to be retained near the front boundary adjacent No. 20, the steps up to the front porches of units 1-4 from the internal driveway, and
• the small paved areas outside the family room sliding doors in each Courtyard, and
• the conversion of the external finished material from a rendered finish to a face brick finish,

plus some other matters, are not the subject of this appeal and as I understand it have been dealt with previously by the council or the construction certificate certifiers, so I do not deal with them.

35 Overall, I have determined that the draft conditions of the council as annotated in Exhibit 7, accepting the revised plans in Exhibit A, plus the condition in Exhibit 15 as annotated requiring repainting and maintenance of the roofs of all buildings, is the appropriate decision.

36 Therefore the orders of the Court are,

1 The appeal is upheld in part.

2 That development Consent issued in Appeal 10785 of 2002 for seven units at No. 22-24 Joseph Street, Rydalmere as amended in DA 819/2000/A dated 17 October 2006 is further amended by the replacement of condition 58 with the condition as annotated in Exhibit 15, and by the replacement of condition 1A with the new condition as annotated in Exhibit 7 of this appeal, all as shown in Annexure A hereto.

3 The Exhibits are returned to the parties except Exhibits A, B, C, 7, 8, 9, 10, 12, 14 and 15.

___________________

K G Hoffman
Commissioner of the Court
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