Sakoua v Parramatta City Council - [2004] NSWLEC 349

Land and Environment Court

of New South Wales

CITATION: Sakoua and Anor v Parramatta City Council [2004] NSWLEC 349

PARTIES:
APPLICANTS
R Sakoua and D Mousa
RESPONDENT
Parramatta City Council
.

FILE NUMBER(S): 10987 of 2003

CORAM: Moore C

KEY ISSUES: Development Application :-
Privacy
Solar access
.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
.

CASES CITED: Super Studio v Waverley [2004] NSWLEC 91;
Kawkab Nassif v Holroyd City Council [2004] NSWLEC 226;
.

DATES OF HEARING: 1 April and 10 June 2004

EX TEMPORE
JUDGMENT DATE : 06/10/2004

LEGAL REPRESENTATIVES:

First applicant in person
RESPONDENT
Mr C Gough, solicitor
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

10 June 2004

COUNCIL

JUDGMENT

1 COMMISSIONER: This was an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal on 8 August 2002 by Parramatta City Council (the council) of Development Application 00560 of 2000 for the demolition of existing dwellings and the construction of, on the amended plans, eleven villas at a number of sites in Pioneer Street Wentworthville, they being numbers 12a, 14 and 16 of the street.

2 During the course of the proceedings, I had the opportunity to inspect the site in company with the parties and their advisers and hear the evidence of a number of the resident objectors - including the immediate neighbours to the site. I have also received a bundle of written submissions that were provided by a number of those attending on site in response to the amended plans.

3 The applicant, in response to a number of matters raised in the course of the hearing on site and subsequent discussions between the expert witnesses and interaction with the Court, submitted amended plans which were considered by the council and went through a further advertising and public consultation process. It is on the basis of those amended plans that this stage of the proceedings comes to determination before the Court.

4 It is agreed by the parties that there are three potentially determinative matters in this appeal.

5 The first of them relates to the issue of stormwater disposal and the interaction of the proposed stormwater disposal plan with the sewer main owned and operated by Sydney Water which runs, essentially, in a straight transverse of the rear of the site and may be significantly impacted on by the proposed stormwater detention tank. That matter has not been resolved between the applicant and Sydney Water and is not before me for determination this morning. The proceedings have continued on the basis that I would deal with the remaining two matters and if I determined them favourably to the applicant the proceedings would then be referred to the Registrar for a further hearing date to deal with outstanding Sydney Water issues.

6 However, on the other side of the coin, if I were to be satisfied that either or both of the other determinative issues warranted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLEC 349
Decision Date: 06/10/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Sakoua and Anor v Parramatta City Council was heard. The applicants sought to appeal against the council's refusal of their development application for the demolition of existing dwellings and the construction of eleven villas at various sites on Pioneer Street, Wentworthville. The key issues were privacy and solar access in relation to the proposed development.

The court was tasked with determining whether the streetscape presentation and the proposed reliance on landscaping for privacy to the private open spaces of units 1, 2, and 3 were acceptable, as well as whether there was an adequate level of solar access to the private open spaces of all the dwellings. Additionally, the court had to decide the preferable solar access standard to be applied.

The court found that the proposed design for the private open spaces of units 1, 2, and 3 did not provide an appropriate degree of privacy protection and was inconsistent with the general streetscape. The court concluded that the proposed reliance on landscaping for privacy was insufficient and did not warrant the granting of consent. Furthermore, the court determined that the proposed development did not meet the appropriate standard for solar access, as the applicant's reliance on a notional density was an artificial construction of the provisions of AMCORD. Consequently, the court dismissed the appeal and refused development consent for the proposed villa development.

The court's final orders were that the appeal be dismissed, the development application for the construction of the villa development be refused, and the exhibits be returned.

Orders