Sonenco Apartments Pty Ltd v Parramatta City Council

[2005] NSWLEC 596

Land and Environment Court

of New South Wales

CITATION:

Sonenco Apartments Pty Ltd v Parramatta City Council [2005] NSWLEC 596

PARTIES:

APPLICANT
Sonenco Apartments Pty Ltd

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11137 of 2004

CORAM:

Bly C

KEY ISSUES:

Development Application :- Floor space ratio - building height - communal open space - urban design

LEGISLATION CITED:

Sydney Regional Environmental Plan No. 28 - Paramatta
State Environmental Planning Policy No. 65
City Centre Development Control Plan

DATES OF HEARING:

03/03/3005

EX TEMPORE JUDGMENT DATE:

03/03/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Jagot, barrister
Instructed by Mr P O"Brien
Of Harris & Company

RESPONDENT
Mr P Marincowitz, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

3 March 2005

11137 of 2004 Sonenco Apartments Pty Ltd v
Parramata City Council

This decision was given extemporaneously and has been revised and edited prior to publication .

JUDGMENT

1 This appeal relates to development application 2004/809, which is for the demolition of three existing dwelling houses and the construction of a nine storey mixed residential and commercial development with basement car parking at 39-43 Hassall Street, Parramatta.

2 The proposed development comprises 61 apartments, 220 sq m of commercial/retail floor space and 66 car-parking spaces in three basements.

3 The site which comprises Lot 1 DP 633851 and Lot A DP 366506 is situated on the southern side of Hassall Street on its south western corner with Harris Street. It has a frontage of 45.18 m to Hassall Street and 31.9 m to Harris Street with a total site area of 1,448 sq m.

4 To the west of the site is a nine storey residential flat building under construction and to the east across Harris Street are the Robin Thomas Reserve and the James Ruse Reserve. To the north is the Rowland Hassall School. To the rear is a stormwater channel and beyond that to the south a three storey residential flat building.

5 The site is situated within the City Centre Precinct and is zoned City Edge under Sydney Regional Environmental Plan No. 28 – Parramatta (“the REP”). In this zone the proposal is permissible with development consent. Also applicable to the site is the City Centre Development Control Plan and Public Domain Strategy (“the DCP”).

6 The application was advertised and three objections were received. Those objections cover the following issues:

• The appropriateness of reuse or recycling of waste products associated with the demolition of the three buildings on the site.
• The avoidance of tree removal given the benefit of trees in reducing air pollution.
• New developments should not overburden existing infrastructure.
• The overshadowing and overlooking of the apartment building to the south at 116-118 Harris Street.
• The proposal will generate additional traffic and associated noise impacts.

7 The application was considered by the Parramatta Design Review Panel. A number of recommendations by the Panel were made and the vast majority of those recommendations have been either dealt with or incorporated into the design. One of the issues to which I will later return is that the Panel suggested that an L-shaped footprint would have been more appropriate for this site and that this would limit overshadowing impacts of the residential flat building to the south.

8 A comprehensive report was prepared by Ms P Mikhiel, a senior council town planner recommending that the application be refused for a number of reasons. The council subsequently determined that the application be refused for those same reasons which include matters involving floor space ratio, flooding, building height, private open space, solar access, visual privacy, housing choice, pedestrian access and urban design generally.

9 The hearing began with an inspection of the site in the company of the advocates and the town planning and urban design experts and the architect who designed the proposal.

10 Evidence was provided by Mr M Harrison, an architect and urban design consultant, who was the Court-appointed expert. On behalf of the respondent council evidence was given by Ms Mikhiel and on behalf of the applicant by Mr A. Caladine, a town planner.

11 The Court was provided with a statement of issues containing 16 separate matters of concern. As a result of changes to the proposal and the advice or explanations provided by the experts and indeed other experts who did not need to attend the hearing, all but two of those matters were resolved. I have considered those matters in the light of the evidence and materials provided to me, particularly the evidence of Mr Harrison and am satisfied that the resolution of those matters is appropriate and they do not indicate any matter of concern that might warrant changes to the proposal or indeed its rejection.

12 The two remaining issues relate to the floor space ratio of the building and the provision of landscaped area in the form of private common open space. The non compliance with the floor space ratio was disputed by the applicant who rejected the council’s position that the private balconies associated with the apartments should be included in the calculation. The reason for their initial inclusion, a reason which attracts at least some support, is that the louvres comprise fixed structures on the outside edge of the balconies and as such essentially became an enclosing wall for the purposes of the definition of floor space area in the REP.

13 The applicant has subsequently amended the design such that a different form of louvres, which louvres are not fixed and this together with the provision of a more conventional balustrade resulted in the council being satisfied that the balconies are no longer enclosed and I accept this. It is thus now not in dispute that the proposal meets the floor space ratio requirement of the REP. I also accept the evidence of Mr Harris that these changes have not adversely affected the architectural quality of this building.

14 A further consequence of this floor space ratio compliance is that the issue of bulk and scale that might otherwise have arisen in relation to the objectives of the floor space ratio standard does not arise.

15 This brings me to the matter of private communal open space. There is no particular area requirement in the REP or the DCP for private open space, although there is a requirement that 20% of the site be provided for deep soil planting where possible. This requirement is not met because the area available for deep soil planting is 18%. In all of the circumstances to which I shall refer shortly I accept that this non-compliance is not critical.

16 The actual amount of common open space appears to be close to double that of the deep soil planting provided on this site. It was unfortunate that the applicant’s architect did not give these landscaped areas the attention that they deserve but this has now happened in the form of an amended plan and a condition of consent which will make these areas significantly more usable by the residents of this building.

17 The expressed concerns in relation to this open space, apart from the deep soil planting area deficiency, relate principally to usability and overshadowing, which deficiencies could have been mitigated by a better design. My attention was drawn to the good design provisions in State Environmental Planning Policy No. 65 (“SEPP 65”) which recognises that landscape and buildings operate as an integrated and sustainable system seeking to achieve a greater aesthetic quality and amenity including that of the occupants of the building. More particularly landscape design should utilise a site’s natural and cultural features in responsible and creative ways. It should also optimise usability, privacy and social opportunity.

18 Clause 8.1 of the DCP incorporates two relevant objectives. Clause 8.1(d) is:

to ensure that landscaped areas encourage spatial and recreational activities for the residents.

19 In terms of private garden spaces, objective (f) is:

to promote development in which all dwellings have access to private landscaped spaces that are usable and comfortable. These spaces should have a balance of podium or terrace space, deep soil, soft garden spaces.

20 Whilst Ms Mikhiel did not believe that the provision of private communal open space was satisfactory Mr Harrison and Mr Caladine did.

21 Mr Harrison drew my attention to a number of aspects associated with the open space provision. Firstly, he suggested that the communal open space should not be considered by itself, rather it should be considered together with the high internal amenity of the apartments themselves and the access to the nearby public parks. The balconies provided for the apartments are of ample size and excellent orientation facing either north or east. The public park whilst being a short distance away across a busy road is nevertheless reasonably accessible given the availability of pedestrian traffic signals. He was further persuaded that the open space is now better designed in terms of usability and overall there is now a better balance of private open space together with the communal open space and the public park.

22 The concern in relation to the overshadowing of the communal open space is, I accept, an inevitable consequence of the design parameters contained within the REP and the DCP. These controls effectively require a building of this scale positioned at the northern and eastern street boundaries of the site. This is what the proposal does up to the allowable height. The overshadowing is an inevitable consequence of the building design that is response to these provisions.

23 The modification of the design as suggested by the Panel that is to have an L shaped footprint, taking into account the neighbouring building to the west would make very little difference in my view to the overshadowing of this area of open space.

24 Recognising that the REP encourages the use of public open space and indeed this form of development, I have concluded that the open space as now proposed whilst not being optimal is in all of the circumstances satisfactory. It must also be taken into account that this development is occurring in a higher density area in close proximity to and thus effectively part of the City Centre and the same standard of open space that might apply in lower density areas cannot be expected.

25 In the circumstances I am satisfied that, particularly in terms of the objectives of SEPP 65, regarding optimising usability, privacy and social opportunity and the objectives of the DCP that landscaped spaces usable and comfortable and provide a balance between different aspects of open space, that the proposal reasonably meets these requirements and therefore warrants the approval of the Court.

26 Finally, the concerns expressed by at least two of the objectors and particularly Mrs Burrell as to overshadowing, for the same reasons that I accept that the overshadowing of the private open space would be satisfactory, particularly the matters of the urban design controls and objectives in the REP and the DCP, that the overshadowing of that property would be an inevitable consequence of those controls and as such cannot be determinative of the application.

27 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2004/809 for the demolition of existing buildings and the construction of a nine storey mixed residential and commercial development with basement car parking at 39 – 43 Hassall Street Parramatta, is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3. Exhibits 6, E and A are retained.

____________

T A Bly

Commissioner of the Court
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