Universal Property Group Pty Limited v Holroyd City Council

[2013] NSWLEC 1207

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Universal Property Group Pty Limited v Holroyd City Council [2013] NSWLEC 1207

Hearing dates:

29 August 2013

Decision date:

04 September 2013

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to development application number 2012/293/1 for the construction of a medium density residential development containing 22 townhouses and 7 villas, totalling 29 units, and associated strata subdivision into 29 lots, including site works and landscaping on the land known as Lot 1 in Deposited Plan 1124346, 1 Roland Street, Greystanes, subject to the conditions of consent annexed hereto and marked "A".

(3)The exhibits will be returned upon written publication of this judgment.

Catchwords:

DEVELOPMENT APPLICATION - medium density residential development under the Infrastructure SEPP 2007, amenity impacts - traffic and parking

Legislation Cited:

Conveyancing Act 1919
Holroyd Development Control Plan 2007
Environmental Planning and Assessment Act 1979
Holroyd Local Environmental Plan 1991
Holroyd Local Environmental Plan 2013
State Environmental Planning Policy Infrastructure 2007

Category:

Principal judgment

Parties:

Universal Property Group Pty Limited (Applicant)

Holroyd City Council (Respondent)

Representation:

Mr M Staunton (barrister) (Applicant)

Ms P Hudson (Respondent)
Solicitors
Hunt & Hunt (Applicant)

Marsdens Law Group (Respondent)

File Number(s):

10362 of 2013

Publication restriction:

Nil

Judgment

1. The applicant, Universal Property Pty Limited (Universal), seeks development consent for the construction of a medium density residential development on a site at 1 Roland Street Greystanes. The development comprises: 22 townhouses, 7 villa apartments, onsite parking for 63 cars and associated landscaping and strata subdivision.

1. The local consent authority, Holroyd City Council, refused its consent to Universal's development application (No 2012/293/1) on 15 May 2013. And the council's refusal founds this appeal to the Court under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act).

1. Since the lodgement of the appeal, however, the Council has changed its position and resolved to enter into consent orders that approve the development subject to conditions. The terms of the development approval are set out in the proposed consent orders filed with the Court on 27 August 2013. The Court must now determine whether the development, as proposed by the parties in the consent orders, is acceptable after a merit assessment under s79C of the Environmental Planning Act 1979 (the Act). Relevantly, the Court's assessment includes a consideration of the submissions made by any objector to the application and, in accordance with the Council's policy and the Court's practice, the residents who have lodged objection to the development have been notified by letter (Exhibit 3) about the consent orders hearing and invited to address the Court.

1. Several of the notified objectors accepted that invitation and attended the hearing and gave oral evidence at the view. The objectors who spoke included:

• Richard Hamilton of 4 Roland Street,
• Brian Peffer of 9/28 Eldridge Road,
• Iona Kypriotis of 40 Eldridge Road,
• Assad Elias of 28 Cumberland Road,
• Linda Hamilton of 4 Roland Street, and
• Daphne Wahlagan of 13 Canal Road.

1. They were supported by a number of other local residents and, it was clear to me that most of those attending were opposed to the development. In summary the objectors to this development raise the following issues:

• Increased and unsafe traffic impacts on the local road network;
• Site access and safety;
• Streetscape;
• Overlooking and acoustic privacy;
• Overdevelopment of the site - the bulk and scale of the development;
• The retention and protection of the identified Cumberland Plain Woodland and;
• Onsite garbage management.

1. In order to understand the impacts of the development and the objectors' concerns I need to give some detail about the site, the relevant planning controls and, the specific conditions proposed to deal with the particular concerns of individual objectors. My understanding of the proposed development is based on the development application and supporting documentation filed with the class 1 appeal; the Council's bundle of documents including the town planning assessment report and Mr Grech's statement of evidence prepared on behalf of the applicant; the traffic report prepared by Mr Varga the applicant's consultant and, the proposed conditions of consent.

The site and its locality

1. Historically, the site was surplus Crown land attached to Holroyd High School. The land was subdivided from the school area in 2003 and sold by the Department of Education to the applicant in 2012 after the Department of Planning and Infrastructure had issued a Site Compatibility Certificate (SCC) indicating that the site was suitable for medium density residential development.

1. The land has an area of about 11,960m2 and is burdened by a restriction under section 88B of the Conveyancing Act 1919, which relates to two areas of Cumberland Plain Woodland present on the site. It is a long battle-axed allotment with a narrow frontage to Roland Street, which provides the only vehicle access path. It is bordered to the north by dwelling houses facing Eldridge Road, to the east by villa houses facing Roland Street, to the south by Holroyd High School, and to the west by dwelling houses facing Cumberland Road.

The statutory controls

1. The statutory controls, which apply to the site, are detailed in the Council's assessment report, (tab 40 of Exhibit 1). And, despite the land being zoned 5(a) Special Uses Zone - School under Holroyd Local Environmental Plan 1991 (HLEP 1991) - which applies because of cl 1.8A of Holroyd Local Environmental Plan 2013 (HLEP 2013) - this development is permissible with consent on two bases. It is permissible under cl 35A of HLEP 1991 because the site is within 25m of the boundary of land which is zoned 2(a) Residential A where medium density is permitted with consent, and also because the Minister of Planning has issued a site compatibility certificate for the land which identifies it for medium density residential development under State Environmental Planning Policy Infrastructure 2007 (SEPP). And under Clause 18 of the SEPP this development is permissible because the land must be assessed as if it has the equivalent zoning of the adjoining residential A land under HLEP 1991, or as perhaps dual occupancy on land zoned R2 - Low Density under HLEP 2013.

Town Planning

1. Accepting its permissibility, the Council's internal planning assessment report dated 7 May 2013 at (tab 40 Exhibit 1) concludes that the development is considered to be compatible with the character of the area and, after assessment under s79C of the Act, an acceptable form of development for the site at (Folio 239 tab 40 Exhibit 1). The report states that the development is generally consistent with the objectives and requirements of the relevant planning instruments and the council's development control plan (folio 204 tab 40 - Exhibit 1). The evidence is that the proposed dwellings maintain the low-density amenity of the surrounding locality by being single storey villa and two-storey townhouses. The two storey dwellings are located away from adjoining residences, thereby minimising privacy and bulk-related impacts (folio 213 of tab 40 - Exhibit 1). The Council's Emergency Services Department, Landscaping and Tree Management Unit, Health and Environment Unit also conclude that the proposed development is satisfactory in terms of car parking, stormwater drainage, landscaping and, appropriate waste management.

1. It is also the case that the development is consistent with the matters raised by clause 30 of HLEP 1991. I am satisfied on the evidence that the development will not unreasonably deprive adjoining dwellings of sunlight or privacy because the proposed two storey townhouses, which are to be located away from the existing adjoining dwellings and boundary fences, will not cause unacceptable overlooking or privacy impacts. Furthermore, the development is generally compatible with its setting, having regard to the nature and use of adjoining buildings and to the streetscape. The planning evidence is that the development will cause minimal street impact essentially because the proposed dwellings will be screened from the street by existing development and buffered by suitable landscaping. Relevantly, the design of the building will be compatible with the existing character of the neighbourhood because medium density development is permitted on the adjoining Residential 1(a) zone, and there is already a villa development directly to the north and east of the site.. And there is no evidence to contradict the planning assessment expressed in the evidence that the development will make a necessary contribution to the supply of housing in the Holroyd Council area.

1. In my assessment Mr Grech's statement of evidence (Exhibit C) comprehensively addresses the grounds of refusal raised by the Council's notice of determination and, the concerns raised by the objectors' submissions. I accept his expert assessment that the grounds of refusal and the concerns raised by the residents have been satisfactorily addressed by the conditions of consent and his conclusion that there is no planning basis for the refusal of this application under s79C (1) of the Act.

1. I will now deal with some of the specific matters raised by the oral evidence of the objectors.

Traffic and Parking

1. Most dwellings will have a minimum of two car spaces comprising lock-up garage and outdoor car space, sixtythree in total and the planning evidence is that the spaces provided satisfy the requirements in Council's Development Control Plan 2007 and draft DCP 2010, and the garage and car space widths proposed are compliant with the relevant Australian Standard for parking AS 2890.

1. Although the objectors expressed a concern about the width of the entry to the site, particularly for emergency vehicles and garbage trucks, there is no traffic evidence to support that conclusion. According to Mr Varga the turning circle at the entry of the site is considered to be appropriate to accommodate the proposed small rigid garbage trucks (that will be a similar size to the SRV truck specified in Australian Standard 2890 - 6.4 metres long) that will collect garbage from the site and emergency vehicles.

1. While the objectors expressed a concern that the development would generate an increase in local traffic Mr Varga told the Court that the projected increase in traffic activity as a consequence of the development would be minimal. His expert assessment is that the development will not have unacceptable traffic implications in terms of on street parking in Roland Street; or, in terms of the local road network capacity. In response to Mrs Hamilton's concern about safety and unacceptable traffic impacts at local intersections, Mr Varga told the Court that the additional seventeen vehicles generated at peak periods by this development would have no appreciable effect at the identified intersections of Cumberland Road, Eldridge and Roland.

1. I must accept Mr Varga's uncontradicted traffic assessment of the impacts of this development.

1. Mrs Kypriotis' concern about the interrelationship of the complex with her rear yard has been considered by the applicant's traffic expert and the applicant has agreed to carry out additional works to the kerb nearest her backyard to increase its height by 250 millimetres to ensure a safe interface with her property in the unlikely event of a vehicle losing control and impacting with her boundary fence. And as noted above the applicant has also agreed to the imposition of a condition requiring the erection of a sign at the top of that street to restrict access to "residents only" in order to discourage vehicles entering the area. I am satisfied that these measures address this objectors specific concern with the development.

Waste Collection

1. Mr Hamilton raised concern about garbage collection on site. Condition 134 of the consent requires that the waste and recycling bins shall be moved to the collection point identified on plan and, removed from the collection point within 24 hours by the Body Corporate/Strata manager. No bins are to remain in the collection point beyond the 24 hours described.

1. I am satisfied this arrangement satisfactorily addresses Mr Hamilton's concern.

Bulk and Scale and FSR

1. Some of the residents raised a concern about an overdevelopment of the site.

1. The development has a proposed FSR of 0.28:1 (0.5:1 excluding the conservation zones) and, is consistent with the maximum prescribed FSR of 0.4:1 for villa and townhouse development, and/or 0.5:1 for houses and dual occupancies. Compliant setbacks are proposed for all dwellings except dwellings 1 and 2 -(a minimum setback of 3.7 metres is required under the control but these houses only have a 3.6 metre setback). However, Mr Grech and the Council's planning assessment officer are of the opinion that the reduced setback is acceptable because those areas adjoin the Holroyd High School open space area and will have no residential amenity impacts. For that reason I accept their expert assessment that the setback is acceptable in this case. .

1. According to the evidence all of the proposed two storey dwellings comply with the maximum height to ridge and maximum height to ceiling controls. And all single storey units except for units 12, 21 and 26 comply with the maximum height to ridge and the maximum height to ceiling controls. However, units 12, 21 and 26 only exceed the maximum height limit by only 150 millimetres and the areas of exceedence are away from existing neighbours and impose no shadow or privacy impacts according to the evidence before me. For that reason I accept the planning evidence that these non-compliances are acceptable in this case.

1. The residents have raised issue about the impact of the development on the existing streetscape. However, after a view of the site I appreciate the evidence of the planners that the proposed dwellings will be largely screened from Roland Street by existing residential type developments. There is no streetscape issue raised by this development in my assessment of the evidence. Furthermore, the inclusion of two vegetated conservation zones within the proposed complex provides an ideal mechanism for the ongoing management of the Cumberland Plain Woodland in accordance with the vegetation management plan. These conservation areas provide a substantial landscape element for the development and the area, and the complex complies with Council's landscaping controls.

Public Interest

1. During the two notification periods, the Council received forty-eight separate submissions, one petition and eighty-seven signatures. I have read and considered that material together with the oral evidence of the objectors' onsite and based on the evidence of Mr Varga, Mr Grech and the Council's planning assessment reports I am satisfied that the proposed development is acceptable after an assessment under s 79C of the Act. As the Council report of 7 May 2013 states, "it is in the wider public interest that the proposal be approved because it generally satisfies the requirements and objectives of the SEPP - Infrastructure 2007, the HLEP 1999 and the HLEP 2013 and the HLEP 2007.

1. The provision of the medium density housing on this site is a benefit to the broader community and this is supported by the findings of the social impact statement that has been filed by the applicant with the application. I do not believe based on the evidence that the objectors' concerns about overdevelopment of the site, traffic congestion or safety issues outlined in this judgment, particularly in relation to turning bays and access to the site, or vehicles losing control and crashing through boundary fences, is made out, or a basis for refusal of the development.

1. Importantly, I am satisfied that condition 28 of the consent requires plans to be lodged with the construction certificate application that demonstrates that the site access will be constructed in accordance with the New South Wales Fire and Rescue requirements to enable a fire appliance or safety vehicle on site and being able to manoeuvre safely. Conditions 136-138 of the consent will require monitoring of acoustic impact so I am satisfied that noise generated, particularly during the construction phase, will not be unacceptable and that the construction management plan required by conditions 33 and 59 will ensure acceptable amenity for the surrounding residents whilst the development is built.

1. A Site Compatibility Certificate has been issued for medium density residential development on this site and, based on the evidence before me, the amended application is acceptable after a merit assessment under s 79C of the Act. Therefore, I propose to make the consent orders filed by the parties.

1. The Court orders are:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application number 2012/293/1 for the construction of a medium density residential development containing 22 townhouses and 7 villas, totalling 29 units, and associated strata subdivision into 29 lots, including site works and landscaping on the land known as Lot 1 in Deposited Plan 1124346, 1 Roland Street, Greystanes, subject to the conditions of consent annexed hereto and marked "A".

(3)   The exhibits will be returned upon written publication of this judgment.

Susan Dixon

Commissioner of the Court

Amendments

07 November 2013 - Typographical error, "Mr Wagner" changed to "Mr Varga".

Amended paragraphs: 6, 15, 16, 17 and 25

Decision last updated: 07 November 2013