Skyton Development Pty Limited v Parramatta City Council

[2004] NSWLEC 709

Land and Environment Court

of New South Wales

CITATION:

Skyton Development Pty Limited v Parramatta City Council [2004] NSWLEC 709

PARTIES:

APPLICANT
Skyton Development Pty Limited

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

10705 of 2004

CORAM:

Bly C

KEY ISSUES:

Appeal :- Neighbours objection to overshadowing and building bulk.

LEGISLATION CITED:

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

CASES CITED:

DATES OF HEARING:

06/12/2004

EX TEMPORE
JUDGMENT DATE :

12/06/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Bingham, solicitor
Deacons

RESPONDENT
Mr C Gough, solicitor
Storey & Gough

JUDGMENT:

- 2 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

6 December 2004

10705 of 2004 Skyton Development Pty Limited v Parramatta City Council

JUDGMENT

1 This appeal relates to a development application for the demolition of two existing dwellings and the erection of a multiunit housing development containing 13 dwellings at 19 – 19A Mount Street Wentworthville. Twenty-six car parking spaces are to be provided in a basement car park with access off a ramped driveway from Mount Street.

2 The site is situated on the northern side of Mount Street near its intersection with Caloolo Street. It is irregular in configuration with a frontage of 18.29 m to Mount Street and a site area of 3172 sq m.

3 The surrounding area is characterised by residential land uses, containing a variety of housing forms, including single dwellings, villa and town house development. Adjoining site to the west and east are single storey villa housing developments and adjoining to the north is a detached dwelling house.

4 The site is zoned 2(b) under Parramatta Local Environmental Plan 2001 and the proposal is permissible with development consent. Also applicable to the site is Parramatta Development Control Plan 2001.

5 The application was advertised on two occasions and total of nine objections were received, expressing concerns including: excessive tree loss; reduced solar access; unsafe footpaths; inappropriate character excessive height; traffic problems; excessive excavation; and loss of privacy. These matters were dealt in a council senior town planner's report, which recommended that the application be approved. These matters were also considered in a report prepared by Mr L. Fletcher a town planning consultant who reached the same conclusion.

6 At the hearing the respondent asked the Court to take into account the evidence of two neighbours from the villa development at 21 Mount Street.

7 The matters of concern to the first of these two neighbours, Ms M Roberts of Unit 3, 21. Mount Street. are contained in her letter and she elaborated on these whilst on site. She was especially concerned in relation to loss of privacy and overshadowing. In this regard I am satisfied that any loss of privacy, which might result from proposed upper level bedroom windows, has been mitigated by the applicant’s modifications to the proposal, particularly the provision of privacy screens in the form of louvres. Some of those louvres were also required to provide internal privacy within the development itself.

8 As for Ms Roberts' overshadowing concerns, I am satisfied that any such impact would be minimal. Her dwelling would continue to have solar access that meets the requirement of DCP 2001. Indeed, I note that within the period 10am to 3pm, the courtyard and the dwelling, are unaffected by any overshadowing.

9 In relation to her dwelling at Unit 4, 21. Mount Street, Ms Ryan was concerned about overshadowing and building bulk. The proposed two-storey Block B, which contains Unit 5 nearest her property, is set at an angle to the common boundary and this is an arrangement she prefers. However she remains concerned at its apparent bulk. In this regard I have concluded that the proposal is satisfactory taking into account: the setbacks which vary between 1.5 and 3 m from the boundary; the provision of landscaping of about 4 m in height; and the building being set into the ground about 500mm.

10 Ms Ryan’s courtyard area and her house will, receive less solar access than at present. Loss of solar access to the dwelling itself will however be minimal. Overshadowing of the courtyard area will be most noticeable at 1pm and will progressively increase until beyond 3pm. However, the outdoor seating area will continue to receive sunlight until 3pm. Taking into account the fact that the three hour solar access requirement of DCP 2001 is met, I am satisfied that the impact on this dwelling is not unreasonable.

11 More generally, It is clear from the examination of the shadow diagrams and a reading of the council officer’s report, that there are several dwellings to the east that will be the subject of some additional overshadowing. Indeed, probably two of the courtyards associated with those dwellings will not receive the three hours of sunlight as required by DCP2001. The report recognises this and suggests that the non-compliance is acceptable for the reason that these villas will receive good morning sunlight and that the majority of those properties are unaffected. In this context it is to be noted that the proposal does not exceed the relevant height controls.

12 Whilst recognising these non-compliances with the solar access requirements of the DCP, I find that the impacts are not unacceptable for the reasons given by the council officer and the non-objection from the affected neighbours. I have also taken into account the fact that these buildings, whilst being two storeys, are not excessively high and are set relatively close to the ground and considering also the side setbacks which are in conformity with the 1.5 m minimum setback requirement in the DCP, and are significantly greater than what might have resulted from a conventional dwelling house development.

13 Other relevant matters for consideration are the permissibility of this form of development and the north-south orientation of the site with the inevitable resulting afternoon over-shadowing that occurs as a consequence of such orientation. I therefore conclude that the arrangement of the buildings along the eastern side of the site is satisfactory.

14 In the circumstances I have therefore decided that:

1. The appeal is upheld

2. Development application No DA0289/2004 for the demolition of two dwelling houses and the erection and strata subdivision of a multi-unit housing development comprising 13 dwellings with basement car parking at 19 and 19A Mount Street. Wentworthville is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3. Exhibits 5,B, C and D are retained.

_________________________-

T A Bly

Commissioner of the Court

ljr