Achi Constructions Pty Limited v Parramatta City Council [2014] NSWLEC 1251

Land and Environment Court New South Wales

Medium Neutral Citation: Achi Constructions Pty Limited v Parramatta City Council [2014] NSWLEC 1251 Hearing dates: 3-4 December 2014 Decision date: 09 December 2014 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Development Application: Residential Flat Building Legislation Cited: Parramatta Local Environmental Plan 2011; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65) Texts Cited: Parramatta Development Control Plan 2011; Residential Flat Design Code Category: Principal judgment Parties: Achi Constructions Pty Limited (Applicant) Parramatta City Council (Respondent) Representation: Ms J Wauchope Gadens Lawyers (Applicant)

Mr A Gough Storey & Gough (Respondent) File Number(s): 10431 of 2014

Judgment 1Achi Constructions Pty Limited sought consent from Parramatta City Council for Development Application DA/427/2013 that proposed the construction of a residential flat building at 66-68 Park Road, Rydalmere. The council refused consent and Achi is appealing that decision. 2The contentions have been resolved through the submission of amended plans and the parties are seeking Consent Orders from the Court.

The site and its context 3The site comprises two adjoining allotments located on the western side of Park Road, Rydalmere between Pine and Wattle Streets. It has a combined frontage of 30.48m, depth of 45.71m and site area of 1,392.4sqm. 4Single storey dwelling houses with detached outbuildings are sited on each lot. All site improvements would be demolished should consent be granted. 5The site contains no significant vegetation and has a fall towards the northern boundary of approximately 1.2m. 6The area surrounding the site is characterised by a diverse mix of land uses, including low and medium density residential, commercial and community uses. Land uses in the vicinity of the site in addition to residential include a hotel and its carpark which immediately adjoins the southern and part of the western boundary of the site (behind No 66), a child care centre adjoins the northern portion of the western boundary (behind No 68), a primary school, a place of worship, neighbourhood shops and community facilities. A single storey dwelling abuts the northern boundary and to the north of that dwelling is a dwelling that is an Heritage Item of local significance.

Background and the proposal 7The original development application was lodged with the council on 22 July 2013 and refused by the council on 11 March 2014. A conciliation conference (s34 conference) was held following lodgement of the appeal and whilst this did not result in resolution of the matter, the applicant prepared amended plans to reflect the council's reasons for refusal of consent. The Court granted leave to the applicant to rely on those plans on 10 October 2014 (the Exhibit B plans). 8Following the joint conferencing between the town planning experts, further amended plans were prepared to address the remaining contentions. Leave was granted to the applicant to rely on those plans during the hearing (the Exhibit C plans). 9The plans now before the Court propose the demolition of existing site improvements, tree removal and construction of a part 3 and part 4 storey residential flat building over 2 levels of basement parking. The development would contain 21 apartments (5 x 1 bedroom, 12 x 2 bedrooms and 4 x 3 bedrooms) and parking for 33 vehicles, bike parking and associated storage areas. Rooftop communal open space is proposed in the north eastern portion of the structure with a 2.5m wide planter box 1m deep running along its northern face to address privacy concerns. The usable area of open space at this level is a minimum of 9.3m from the northern boundary. 10The building would be erected on a 3m setback to Park Road, 6m from the northern and western boundaries and between 4.5m and 6m from the southern boundary. Vehicle access to the site would be via a driveway along the northern boundary of the site with a 1m wide landscaped strip provided adjacent to the common boundary with the adjoining residential dwelling. 11A second common open space area is proposed in the south western corner of the site with private open space areas allocated to three of the ground floor units. It became apparent during the hearing that access to the area allocated to unit 5 was not available and further amendments would need to be made to the plans. It was agreed by the experts that this could be addressed through conditions and importantly that the ground level of these courtyards be retained at the existing levels. The agreed conditions reflect this requirement (see condition 1A).

The planning controls 12The site is zoned B4 Mixed Use under Parramatta Local Environmental Plan 2011 (LEP). The adjacent carpark and child care centre is also within that zone and land immediately to the north is zoned R3 Medium Density Residential. Land further to the south on the opposite side of Pine Street is zoned B2 Local Centre with R2 Low Density Residential land further to the east and R4 High Density Residential further to the west. 13Clause 2.3 requires the consent authority to have regard to objectives for development tin a zone when determining a development application. The objectives of the B4 zone are: * To provide for the housing needs of the community within a high density residential environment. * To provide a variety of housing types within a high density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To provide opportunity for high density residential development close to major transport nodes, services and employment opportunities. * To provide opportunities for people to carry out a reasonable range of activities from their homes if such activities will not adversely affect the amenity of the neighbourhood. 14Residential flat buildings are not a use nominated as prohibited and are therefore permitted with consent. 15Part 4 of the LEP contains principal development standards and those relevant to the application are Clauses 4.3 Height of Buildings and 4.4 Floor Space Ratio (FSR). The maps that relate to these standards provide for a maximum building height of 12m and maximum FSR of 1.5:1. The proposed building is 12m high and has a FSR of 1.35:1 so is compliant. An 11m height development standard applies to the adjoining R3 zone. 16Clause 5.10(5) provides that the consent authority may, before granting consent to any development on land that is within the vicinity of a heritage item require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. The council did not require such a document to be prepared however, the built form impacts on that item have been considered by the experts in their assessment of the application. 17Parramatta Development Control Plan 2011 (DCP) applies to the site, in particular, the provisions of Parts 1 - Introduction, 2 - Development Principles and 4 - Special Precincts. The site is within the (East) Rydalmere Precinct. The desired future character for the precinct is as follows: A mix of residential, retail and business development will occur in the precinct encouraging a mix of housing types including residential flat buildings, multi dwelling housing and shop top housing. Retail and business uses will be concentrated around the intersection of Pine Street and Park Road, and on the south eastern corner of Victoria and Park Roads. New residential development will be concentrated in close proximity to existing transport services on Victoria and Park Roads and Rydalmere Ferry Wharf. New development will be required to have regard to sensitive environmental areas and heritage items, and to consider noise impacts from Victoria Road and adjacent industrial development. Development is to provide casual surveillance to existing public open spaces including public reserves and pedestrian laneways. Where sites directly adjoin existing creek corridors new development should retain and/or enhance the indigenous vegetation corridor. 18Setback controls apply to the southern portion of the site with a 0-3m setback with awning provided. No setback is specified for the northern allotment. 19Other planning instruments and documents relevant to the contentions in the case are State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX), State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP65) and the Residential Flat Design Code (RFDC).

The issues 20As a result of joint conferencing and the preparation of further amended plans that reflect the discussions undertaken, the council is now satisfied that the plans before the Court address its contentions or those remaining can be addressed by conditions of consent.

The evidence 21The hearing commenced on site with evidence heard from a number of objectors to the development. The matters raised are summarised as follows: * Overlooking from upper floor windows, balconies and rooftop communal open space; * Excessive height and number of storeys; * Impact on on-street parking, pedestrian safety and traffic; * Depth of building is excessive, inadequate setbacks, too large, adverse impacts on streetscape; * Concerned about the extent of excavation and structural stability of adjoining properties including the heritage item; * Impact on amenity during construction; * Loss of development potential for adjoining property to the north; * Headlight glare; * Noise from use of communal open space; * Height of front boundary fencing. 22Expert evidence was heard from Mr S Harding for the applicant and Ms A McCabe for the council. Their Joint Report, Exhibit 3 considered the amended plans that had been filed after the s34 Conference (the Exhibit B plans), further amended plans that reflect those that are now before the Court and annexed to the report as Attachment 2 (the Exhibit C plans) and the contentions in the Council's Statement of Facts and Contentions filed 20 November 2014 (Exhibit 2). 23They agree that the main issues in this matter are: * Building form, building mass and appearance; * Amenity: internal; * Amenity : Private and Communal Open Space; * Privacy impacts; and * Landscaping. 24In relation to building form, mass and appearance, they have regard to the council's planning controls that apply to the site, the adjoining properties and heritage item, the provisions of SEPP65 and agree that the proposed setback to the street and the siting of the development in respect to the boundaries appropriately achieves a transition to the adjoining residential property to the north. They also agree that the proposed form, mass and appearance of the development are appropriate in the context of the Park Road streetscape and surrounding development. 25Internal amenity has been addressed through changes to the proposed balcony screens and the experts agree that the treatment now proposed is appropriate, the unit size and access to sunlight satisfies SEPP65 requirements and the amendments address the internal amenity issues to a level of design that does not raise any further planning issues. 26External amenity has been addressed through changes to window treatments and privacy screens. The experts endorse the use of a solid balustrade with louvres to ensure adequate privacy to the adjoining child care centre whilst maintaining appropriate amenity to the private open space areas of the western balconies. They consider that the location of the majority of windows and balconies is towards the carpark and not directly facing the childcare centre and those windows that do face the childcare centre are adequately separated in terms of distance or comprise bedroom windows. In relation to the residential property to the north, they agree that it is appropriate to require privacy screens to the northern elevation of the bedrooms of units 4, 5, 10, 11, 16, 17 and 21 to mitigate privacy impacts. Conditions of consent reflect the form these screens should take. 27Whilst the amended plans show privacy screens on the southern elevation, the experts agree that because this area faces the adjoining carpark and setbacks comply with the RFDC setbacks, the screens are not required and could be removed to improve natural light and amenity within those south facing units. 28The experts agree that the communal open space shown on the upper level of the development is adequate and that the 2.5m wide planter box provides an area for landscaping and the additional setback would ensure that there is no overlooking of adjoining properties. 29In relation to the use of this area and possible noise impacts, the planners agreed that the hours of use should be imited and consent conditions have been prepared which prevent usage of the area between 9pm and 7am except on New Year's Eve (see condition 98). 30Amendments made to the landscaping plan have, in the opinion of the experts, addressed the contention with the increased landscaping in front of dwellings one and two providing a landscape transition to the adjoining residential development notwithstanding that this development is in the B4 Mixed Use zone. 31In relation to the possible impact of excavation and building works on adjoining properties, the experts recommend that dilapidation reports be prepared for No 70 and 72 Park Road and conditions of consent reflecting that requirement have been provided in addition to the prescribed conditions that require protection of adjoining sites (see condition 52). 32Other issue raised by residents would be addressed through conditions of consent and include construction of boundary fencing along the site's northern boundary to address headlight glare and ensuring that construction impacts are appropriately managed and conditions imposed can be physically satisfied.

Conclusion and findings 33The council's contentions have been resolved through the details and changes made to the plans. The consent orders and conditions now reflect the recommendations of the planning experts and further details that arose as a result of the objector's evidence and lack of detail shown on the plans. 34I am satisfied that the proposal is lawful and complies with the relevant provisions of the LEP, SEPP65 and controls in the DCP. Having regard to the evidence, I am satisfied that the development with the amendments made to address privacy and amenity impacts, is consistent with the controls that apply in the B4 zone. The Court must consider those provisions that apply to the site and not go behind the making of the plan or other historical facts. The proposed development is consistent with the objectives of the zone and the planning controls that apply and, as agreed between the experts, is an appropriate form of development in this location subject to the further amendments made to reflect the issues raised by residents and addressed through conditions of consent. 35There being no reason why the Consent Orders should not be made, by consent the Orders of the Court are: (1)The applicant is granted leave to rely on the plans set out at paragraph 1 of Annexure A of these orders. (2)The appeal under s97 of the Environmental Planning and Assessment Act 1979 is upheld; (3)Development Application No. DA/427/2013 lodged with the respondent on 22 July 2013 to the consolidation of land, demolition of existing improvements and erection of a residential flat building containing 21 apartments at Lot 3, Section 2 in DP 977669 and Lot 201 in DP 1179933, being 66 and 68 Park Road, Rydalmere is approved subject to conditions 1 to 97 in Annexure A. Sue Morris Commissioner of the Court Annexure A

Amendments 16 February 2015 - A minor typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2015