Younes v Parramatta City Council

[2008] NSWLEC 43

Land and Environment Court

of New South Wales

CITATION:	Younes v Parramatta City Council [2008] NSWLEC 43
PARTIES:	APPLICANT John Younes RESPONDENT Parramatta City Council
FILE NUMBER(S):	11183 of 2007
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification of consent - imposition of condition of approval - impact on heritage item
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	31/01/08
EX TEMPORE JUDGMENT DATE:	31 January 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr P O'Brien, solicitor SOLICITORS Harris & Company RESPONDENT Mr P Marincowitz, solicitor SOLICITORS DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

31 January 2008

11183 of 2007 John Younes v Parramatta City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Parramatta City Council (the council) of an application (Application DA/994/2006/A) to modify the approval of Development Application DA/994/2006 to construct a second dwelling to create a detached dual occupancy development. The application also provides for the Torrens Title subdivision of the two dwellings and alterations to the existing dwelling at 2 Prince Street, North Parramatta (the site).

2 The proceedings were originally set down as a Court Hearing however with the agreement of the parties the proceedings were heard as an On Site Hearing. The judgement reflects the findings in given on-site and to the relevant parts of the Statement of Facts and Contentions.

3 The modification application sought the deletion of condition 5 which states:

5. The usable space on the first floor to be removed and the roof pitch be redesigned so as to ensure it being a one level single dwelling.
Reason: To ensure that the primary focus on the heritage property.

4 The site is Lot 2 in DP 979533. It has a width of 16.76 m, a depth of 45.72 m and a site area role of 770.185 sq m. There is an existing dwelling and freestanding garage on the site. The surrounding area consists of largely of single storey residential development, including a number of residential properties identified as items of local heritage significance.

5 The site is zoned Residential 2(A) under Parramatta Local Environmental Plan 2001 (LEP 2001). The proposed use is permissible with consent within this zone.

6 The site is subject to the provisions of Parramatta Local Environmental Plan 1996 (Heritage and the Conservation) (LEP 1996). The existing dwelling on the site is identified in Schedule 2 of the LEP 1996 as an item of local heritage significance. Clause 14 provides considerations for development affecting a heritage item.

7 Parramatta Development Control Plan 2005 (DCP 2005) applies. Clause 3.1 provides details building envelope controls for residential development. Clause 4.2.3 provides objectives and design principles for building form and massing.

8 Parramatta Heritage Development Control Plan 2001 (DCP 2001) applies. Clause 3 provides general guidelines while cl 3.5.1 provides requirements for new buildings.

9 The Statement of Facts and Contentions makes the following comments in relation to the imposition of condition 5. It is states that the condition is necessary so as to reduce the impact of the proposed development at the rear of the site on the heritage dwelling at the front of the site, in addition to the heritage dwellings in the vicinity of the site. Without condition 5, the primary focus on, and to the significance of, the heritage item will be unacceptably compromised.

10 The parties agreed, prior to the hearing, that no individual experts reports were to be prepared although the Court had the benefit of a copy of the council’s file including reports on Development Application DA/994/2006 and the modification Application DA/994/2006/A. Condition 5 did not form part of the council staff's recommendation for approval of Development Application DA/994/2006 but was included in the approval on 9 July 2007 following a site inspection by the elected representatives of the council. The council staff's recommendation for modification Application DA/994/2006/A was that condition 5 be deleted however the council resolved that the condition should remain. I note that the councils Heritage Adviser raised no objection to the proposed development in its original form, i.e., without the imposition of condition 5.

11 The Court also had the benefit of a Statement of Environmental Effects for the original application and the modification application prepared by Caladines Town Planning Pty Limited and a Statement of Heritage Impact for the original application and a Supplementary Statement of Heritage Impact for the modification application by Mr Greg Patch, a heritage architect. Both reports by Mr Patch supported the proposed development, without the imposition of condition 5.

12 The relevant comments in the Supplementary Statement of Heritage Impact, state:

These siting and size of the cottage is such that it will not impinge on the setting of the heritage item. The relative level of the ridge of the proposed dual occupancy development is RL 47.92 compared to that of the existing cottage at RL 47.70. The setback distance is 7.687 metres from the rear of the existing cottage, some 21.25 metres from the street, and to the relative position of the peak of the roof of the proposed dual dwelling is such that the effects of the diminution due to perspective will render it of virtually lesser size than the existing.
…..having regard to the original Statement of Heritage Impact, I find that the proposed development is sympathetic, appropriate and beneficial to the heritage item, and is supportable in terms of its impact on the item.

13 Dr Alex Sexton of 36 Iron Street provided evidence on site. The rear boundary off his property adjoins the western boundary of the subject site in the general location of the proposed new dwelling. He expressed a concern that any noise generated when using his garage may be a source of complaint from the accommodation in the roof space. Dr Sexton also raised concern over the inappropriateness of this form of development and the bulk of the roof design. The owners of the adjoining property at 4 Prince Street, Ms Ruth and Mr Otto Kretscher, also objected to the modification application but were unavailable to provide evidence at the hearing.

14 With the benefit of the site view, the documentation provided by the applicant (particularly the supplementary Statement of Heritage Impact, which I endorse) and the council and an understanding of the councils planning controls, I can comfortably conclude that condition 5 can be deleted for a number of reasons.

15 Firstly, I am not satisfied that the difference between the form of the new dwelling with condition 5 in place and without condition 5 is that significant that it would warrant the imposition of condition 5. The pitch of the roof will be some 400-500 mm lower or 6.0 m – 6.1 m in height compared to 6.5 m height for the original design. The difference, in my view, will have marginal or no impact on the heritage significance of the existing dwelling or any nearby heritage items. Secondly, the configuration of the proposed dwelling is consistent with the form of development anticipated by cl 3.1 of DCP 2005 for a dual occupancy development on the same the site as a heritage item, in that additional accommodation may be permitted in the roof of a single storey dwelling. Thirdly, the proposed development complies with all numerical requirements in the DCP 2005 for a detached dual occupancy development, including those specifically aimed at development near a heritage item. Fourthly, the roof design is consistent with a dwelling that provides accommodation within the roof space. The windows within the roof area are minimised to reinforce the perception of a single dwelling from various locations in the immediate area.

16 Having considered the relevant matters in cl 14 of LEP 1996 and cl 3.5.1 of DCP 2001, there is no valid reason why condition 5 should be imposed.

17 The concerns of Dr Sexton, in my view, do not change this conclusion. If a noise disturbance is generated from his garage, it is likely that the noise disturbance will have an equal or similar affect on other rooms within the dwelling and not necessarily just the room within the roof space. This concern would not be a reason to impose condition 5. I have previously address the question of roof design and found it to be acceptable (see par 15).

18 The general question of impact on the heritage significance of the dwelling and the wider area needs to be addressed through the particular requirements of the council, such as LEP 1996, DCP 2005 and DCP 2001. In this regard, the proposal was found to be acceptable.

19 For the above reasons, the Orders of the Court are:

1) The appeal is upheld.
2) Application DA/994/2006/A to modify Development Application DA/994/2006 to construct a second dwelling to create a detached dual occupancy development, provide for the Torrens Title subdivision of the two dwellings and alterations to the existing dwelling at 2 Prince St., North Parramatta is approved by the deletion of condition 5.
3) The exhibits are returned.

____________
G T Brown
Commissioner of the Court