Valore v Parramatta City Council

[2007] NSWLEC 387

Land and Environment Court

of New South Wales

CITATION:

Valore v Parramatta City Council [2007] NSWLEC 387

PARTIES:

APPLICANT
Joseph Valore

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11089 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- 2-storey dwelling and basement carpark, developing of sloping land, landscaping, streetscape, fences, building form and massing, building facade and articulation, private open space, visual and acoustic privacy, solar access, cross-ventilation, parking, special character area and neighbourhood character areas.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Parramatta Local Environmental Plan 2001
Parramatta Development Control Plan 2005

DATES OF HEARING:

19/04/2007 and 07/06/2007

EX TEMPORE JUDGMENT DATE:

7 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Briggs, solicitor
of Damian Briggs and Associates

RESPONDENT
Mr C. Gough, solicitor
of Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

7 June 2007

11089 of 2006 Joseph Valore v Parramatta City Council

JUDGMENT

1 This is a Class 1 Appeal No. 11089 of 2006 between Joseph Valore and Parramatta City Council in regard to the deemed refusal of an application for a 2-storey house with basement car park, a high front fence and lych-gate or gatehouse on the front boundary, and a large flight of steps up to the 2-storey front porch, all within the front setback. The top of the flight of steps in the original plans was 4 m from the front boundary and the porch at 5 m, with the two-storey wall of the house at 6 m setback.

2 The subject site is known as No. 54 Langdon Road, Winston Hills, and it is described as Lot 13 DP8471272. The site has an area of 550.3 sq m, with a frontage of 15 m to Langdon Road. The depth of the site is 36.5 m. It is currently vacant.

3 In the locality the subject site is adjoined on the north, south and west by vacant lots and is situated in a predominantly residential street. Along its northern boundary is an access lane to a large area of vacant land at the rear of several of the nearby houses in Langdon Road.

4 The site is zoned Residential 2(a) under the Parramatta Local Environmental Plan 2001. Dwelling houses are permissible with consent of the council and if the proposal is consistent with the aims and objectives of the Residential 2(a) zone. Parramatta Local Environmental Plan 2001 applies to the site and related to this case are the provisions, amongst others, for height limits in a residential zone, floor space ratios for development.

5 Parramatta Development Control Plan 2005 also applies to the site and in respect of the issues in this appeal the matters of relevance are those on development of sloping land, landscaping, streetscape, fences, building form and massing, building façade and articulation, private open space, visual and acoustic privacy, solar access and cross-ventilation, parking and vehicle access, special character area and neighbourhood character areas.

6 During the hearing the evidence was, amongst other things, that the house and porch were too close to the street and due to the rise in the ground appeared too bulky. The lych-gate at the front boundary and the large flight of stairs added to the mass. Also at the front downhill façade the height of the ground floor was about 1.5 m above natural ground level.

7 The applicants sought to amend the plans and an adjournment was granted. Exhibit H was tendered on resumption and it moved the house back to 8 m front setback with the porch at 7 m. The lych-gate and the front steps were deleted and a path to the front porch was taken up the side boundary so that the front yard could be substantially vegetated. The front fence was lowered to have 1.5-metre high pillars with open palisade grilles between the piers. The house was excavated into the slope of the hill so the ground floor on the south end of the front façade is only 700 mm above natural and the north end of the front façade about 1 m above natural ground.

8 Also the master bedroom that projected at the rear of the second storey was switched from the south-west corner of the second floor to the north west corner so there would be substantially less shadow on the vacant lot to the south. The second floor is considerably smaller than the ground floor of the house, so this change together with lowering of the whole house added to the benefits for the vacant lot to the south. The second floor was also reduced in area compared to the original design.

9 These amended plans were notified and there were no objectors. In fact the original plans had no objectors either. Amended draft conditions were tendered in Exhibit 2.

10 The issues were reduced as a result of the amended plans but remained as:

Issue 1
Whether approval should be granted as the proposed development is inconsistent with the aims of objectives of the 2(a) residential zone in the Parramatta Local Environmental Plan 2001 .
Particulars - objectives (a), (b) and (c).
Issue 3
Whether approval should be granted as the proposed development is contrary to cl 40 floor space ratios for development in LEP 2001.
Particulars - the proposed dwelling would have a floor space ratio in excess of 0.5 to 1, the maximum permitted. The State Environmental Planning Policy No 1 objection submitted with the development application is not well-founded, as it fails to address the requirements of the draft State Environmental Planning Policy (Application of Development Standards) 2004 .
Issue 6
Whether approval should be granted as the proposed development was not designed to respond to the slope of the site and is non-compliant with cl 4.1.7 of DCP 2005.
Particulars - The site analysis plan prepared by architects dated 24 August 2006 drawing DA01 is inaccurate and fails to identify the slope of the site.

Issue 8
Whether approval should be granted as the proposed development does not comply with cl 4.2.4 building facades and articulation of DCP 2005.
Particulars - The dominant front façade is inadequately articulated or assessed and results in an excessively bulky building which is inconsistent with the character of the area.
Issue 9
Whether approval should be granted as the proposed development does not comply with cl 4.3.4, solar access and cross-ventilation of DCP 2005.
Particulars - The proposal would cause overshadowing of the adjoining southern residential block which will limit the potential for a dwelling on this site to receive three hours of sunlight to habitable rooms between 9am and 3pm on the winter solstice.
Issue 9A
Whether approval should be granted as the proposed development does not comply with s 4.5.1, parking and vehicular access of DCP 2005.
Particulars - Section 6 under the heading Dwelling Houses and Dual Occupancies states that car parking in the form of a basement is not permitted except where slope conditions require a basement. This site is not sufficiently steep to necessitate the need for a basement.
Issue 12
Whether approval should be granted as the proposed development would set an undesirable precedent.
Issue 13
Whether approval is in the public interest.

11 The respondent’s evidence was heard from Mr A Cowell, council town planner. The applicant’s evidence was heard from Mr R Del Pizzo, architect.

12 Much of the evidence revolved around the fit or not of the proposal into the character of the locality and the streetscape as set out in the objectives of the zone. Clause 16 of the statute requires the opinion of consistency with the objectives of the zone prior to the granting of any consent. The applicable objectives for zone 2(a) are:

“(a) to enhance the amenity and characteristics of the established residential area; and

(b) to encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area; and

(c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment.”

13 Langdon Road is a wide street and the west side on which the site is located is the high side. Houses on the east side of the street are predominantly 1-storey and lower than the road near the site. Houses on the west side are predominantly 2-storey with either a garage forward of the house or one storey of house above a ground level garage.

14 One house, No. 58 Langdon Road, that is on the second lot south of the site, is a huge house covering much of its allotment. It is also built very close to the street with a high front fence and its front yard is almost completely paved over as a driveway to a basement garage with wide garage doors and two storeys of house above that. The parties and the experts agree it is out of character with the objectives of the zone.

15 The respondent says the proposal is more like No. 58 than the other houses in the street. Whilst that is true of the original design the changes in the amended plan, says the applicant, have achieved an acceptable level of compliance with the objectives.

16 I note that in Exhibit F the front setbacks of the houses to the north of the site are consistently about 7.5 m to their garages and between 5.96 m to 6.6 m to front balconies and 8.9 m, and in some cases 15 m, to the front wall of the house. The amended proposal, at 7 m to the balcony of the front porch and 8 m to the front wall is a little closer than most.

17 The applicant says the compensatory qualities of the design are:

1. The other houses have substantial areas of driveway paving in their front yards to service the at grade or partial basement garages.
2. The other houses have double garage doors which are more dominant in the street, detracting from the houses themselves.
3. These components lead to a reduction of front yard landscaping in the nearby houses.
4. The proposal has a one car width garage door and driveway occupying a small proportion of the front yard.
5. The basement garage is below the footpath level so that it is not dominant in the streetscape.
6. Landscaping of the front yard is substantial and assists in giving the house an attractive setting and softening the built form.
7. Langdon Road rises as it goes south and the rise in the level from the footpath directly from the front boundary increases as you go south. This means complying houses must be higher in perception within the streetscape than the houses to the north.
8. Most of the houses to the north are slab on ground level at the lowest floor due to the topography. As one travels south towards the subject site houses must be higher than natural ground at the front elevation. The proposal now at between 700 mm and 1 m above natural ground at the front is minimal and acceptable subfloor height.
9. The basement garage is almost out of sight adds nothing or very little to the bulk of the house.
10. The proposal now excavated reduces the visual height of the front façade.

18 I am inclined to accept this evidence as demonstrating reasonable compliance with the zone objectives. The respondent maintains, however, that notwithstanding these changes there is still non-compliance with the floor space ratio. This is due to the definition of floor space allowing only one car space and the storeroom in the basement to be deducted from the floor area when calculating the floor space ratio. This would give a floor space ratio of 0.68 to 1.0 when the standard under the statute is 0.5 to 1.0.

19 The size of the basement is caused by cars needing to turn inside to exit through the single-width single door. This produces a much safer exit for any cars leaving the site and obviously increases pedestrian safety on the footpath. The area inside the basement is manoeuvring space plus the area of the second car park that creates the exceedence in the floor space ratio. The applicant notes that on a lot only 49 sq m bigger than the subject lot, a dual occupancy is permissible with a floor space ratio of 0.6 to 1.0, and without the basement the proposal would have a floor space ratio of 0.53 to 1.0, which is a minor exceedence of the standard.

20 The respondent accepted that the State Environmental Planning Policy No 1 objection lodged on the original plans could be considered for the amended plans. I note there is no specific objective for the floor space ratio except the zone objectives. As I have said, I am inclined to accept that the amended proposal meets the zone objectives on character of the locality and streetscape, and the reasoning in the State Environmental Planning Policy No 1 objection gives further support to this conclusion, including the consideration of the draft State Environment Planning Policy (Application of Development Standards) 2004.

21 Therefore I adopt the objection and uphold it. Implicit in this conclusion is that the amended plans ameliorate concerns involved in issues 1, 3, 6, 8 and 9A and I believe the exceptional circumstances of this case create no precedent as mentioned in issue 12.

22 In regard to issue 9, solar access, the respondent agrees the changes give excellent solar access to the likely future private open space of the south side vacant lot. I find that the change of moving the bulk of the second storey of the proposal to the north side of the building and lowering the whole building provides reasonable access to sunlight for any future house on the lot to the south. Being on the south some interference with solar access must be expected.

23 Therefore there are no matters remaining that are sufficient for refusal of the proposal and the orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted for the erection of a 2-storey house at No. 54 Langdon Road, Winston Hills as shown on drawings in exhibit H, job No. 1698 DA01 to 05, all issue D by architects and engineering plans SW7002/S1 amendment B by A L W Design, all as amended by and built in accordance with conditions in Annexure A hereto.
3. The draft conditions in Exhibit 2 form Annexure A.
4. The exhibits are returned to the parties except Exhibits H and 2.

___________________

K G Hoffman
Commissioner of the Court
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