Antoniou v Parramatta City Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 14/02/2007 and 03/04/2007

APPLICANT Mr D. Briggs, solicitor of D. G. Briggs and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Marincowitz, solicitor of DLA Phillips Fox.

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10532 of 2006 Harry Antoniou v Parramatta City Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This ex tempore judgment is for a appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Parramatta City Council for a development application of a property known as 25 Ryde Street, Epping. The subject property is on the corner of Ryde Street and Willoughby Street and has an approximate area of 895 sq m, a frontage to Ryde Street of some 17 m and a depth of 50 m, that is the Willoughby Street boundary.

2 The topography is gently undulating with a rise of some 2 m over the site. The surrounding area is predominantly single residential dwellings, although there is a smattering of medium density development within the vicinity of the subject site. In particular, opposite Willoughby Street, there is a villa development. The dwelling houses within the area are generally of one and two storey construction. The subject site is zoned 2(a) under the Parramatta Local Environmental Plan 2001 and the proposed development is permissible in the zone, that is the erection of two dwelling houses on the subject site or a proposed duplex on the subject site.

3 The site is also covered by the Development Control Plan 2001 ("the DCP") for Parramatta Council and there are a number of controls within the DCP. The Court notes that this has also recently been amended, although there is a transitional requirement such that the development application must be considered in the context of the development control plan prior to the amendment. In accordance with the Court of Appeal judgement of Zhang v Canterbury City Council [2001] NSWCA 167. The Court must have genuine and proper regard to the provisions of the Development Control Plan. With the assistance of council's development assessment officer, Mr Clark, the Court was advised of those controls and where the changes were envisaged by the council. The most important control where there is some difference between the provisions is for the setback to No. 26 Neil Street. The Development Control Plan under which the development is assessed has a 3 m requirement. The new development control plan reduces this to 1.5 m.

4 During the on-site hearing, there were a number of concerns raised by residents and the Court heard from residents on-site. In particular, Mr and Mrs McCaffery, of No. 23 Ryde Street are concerned about the proposed development in terms of their privacy, overlooking and overshadowing of their property, having regard to the siting of their dwelling house to maximise their northern exposure to the sun.

5 The subdivision pattern is such that the lots along Ryde Street have an east/west subdivision pattern orientation and the northern boundary of No. 23rd joins the subject site.

6 The McCaffery's are also concerned about the use of the rooftop terrace, which serves the main living area for house No. 1, and the configuration or the design of the dwelling house with the main living and out door open space upstairs.

7 The Court also heard from Mrs Williams at No. 24 Neil Street. She was concerned about the upstairs terrace, impact on amenity, and the enjoyment of her residential amenity, privacy and sunlight.

8 The plans have subsequently been amended in response to the Court's preliminary views given on-site with respect to the development application in Exhibit A. The Court raised concerns about ensuring that the privacy and reasonable solar access is maintained to No. 23 Ryde Street. It was clear on the view in terms of Mrs Williams' property, that overshadowing was not an issue and this was explained to her on-site. There will be some minor overshadowing in terms of her rear yard but this is not an issue that would warrant refusal of the application.

9 The application was amended and the council is also satisfied. The Court has the assistance of council's officer Mr Clark this morning, to advise that in his opinion the amended plans reflect the concerns raised by the Court on the first occasion. The Court expressed concern about the setback to Willoughby Street and the length of the façade to Willoughby Street and the need for articulation and further setback from Willoughby Street. The Court also expressed concern about the use of the upstairs terrace and subsequently it was agreed by the applicant that a glass screen, now a glass screen to 1.8 m, would be constructed on the southern portion with a return on the dwelling house at No. 1. The Court also expressed concern that the privacy between the two new dwellings should also be maintained. There are now planter boxes to ensure that the amenity of the two dwelling houses in terms of privacy is maintained, acoustic and visual privacy for the new dwelling houses. The significant amendment has also been in terms of the moving of house No. 2 such that it is closer to the western boundary of the subject site. It is now set back 1.5 m from that boundary as opposed to the 3 m.

10 The footprint of the dwellings has been slightly reduced from the original plan. The footprint or the floor space ratio is within council's control. It has a control of 0.6:1, the proposed development in the amended plans at Exhibit J is 0.57:1.

11 The Court this morning heard further evidence from the adjoining neighbours. Mrs McCaffery expressed some concerns about windows and overlooking and the height of the glazing to the terrace, the potential glare from the glass used to screen the terrace for house and the landscaping species proposed along their boundary.

12 The applicant has responded to Mrs McCaffery's concerns for landscaping and has agreed to the species she has suggested that's being tulip wood and white oak along that boundary with the retention of the current Alexander palm. She also expressed to the Court concern about the windows to the kitchen. It is noted that the sill height of the windows to the kitchen is some 1.6 m. Given that there is a bench, there is also some intervening landscape and a setback of some 6 m to the side boundary, I am satisfied that this will not cause unreasonable impacts in terms of overlooking to the adjoining property. Similarly, in terms of the window to the en-suite of the upstairs bedroom, the western window is to an en-suite area shower and given the intervening landscaping between that window and the fence and the rear yard of No. 23, I am satisfied this would not be a cause of concern and would not create unreasonable impacts.

13 The Court has also heard from the owner of No. 26 Neil Street, Mr Tesoriero. He expressed concern about of the dimensions on the plan and an understanding of what the sill heights would be for the windows that adjoin his property boundary, which is the western boundary of the subject site, his eastern boundary. It has now been clarified and the applicant has indeed agreed to minimum sill heights for the windows in the upstairs area of the en-suite to the main bedroom and the two windows in the main bedroom of the upstairs area, such that there be a minimum sill height of 1.8 m and the applicant has offered this on the basis that clear glazing can be provided in those windows.

14 By way of comment, the applicant has agreed to this course of action; generally a 1.6 m high sill height is considered appropriate in terms of minimising overlooking from such rooms and this should not be seen as a precedent.

15 I also appreciate the fact that the plans were originally amended from the first plans that Mr Tesoriero sighted, such that there are now 9 windows along that boundary whereas originally there was one window. I am also satisfied, however, given the relationship or the juxtaposition of the windows in the ground floor garage area and given the location of his garage within close proximity to the boundary at that point, this would not be a concern in terms of his privacy.

16 With respect to the windows on the ground floor also, these are windows to a laundry and I am satisfied that with a 1.6 m sill height, that is appropriate and that in fact there is also a bench that would provide separation of a person limiting the potential for overlooking. Furthermore with the separation distances, that is building to building and intervening vegetation and the use of the rooms I am now satisfied with the amendments proposed by the applicant and there is no concern in terms of overlooking from the proposed development to adjoining properties.

17 As identified by the council and as agreed to by the council, the amended plans have responded to the Court's initial concerns and concerns also expressed by resident objectors. I agree with the council and I am satisfied that the amended plans warrant approval and there is no reason as to why the Court should not grant consent.

18 I will say also that when the Court met on-site, there was considerable discussion concerning the access of the driveways for the two dwellings. There was considerable attention paid to whether in fact it would be more appropriate to redesign the development such that there was access from Ryde Street. However, on site it could be seen that by providing vehicle access to Ryde Street, that there would be an impact of the built form on the solar access to No. 23 that would be inappropriate. The Court also had regard to the traffic along Ryde Street, that is not to say that Willoughby Street is not a busy street but, in terms of the access point, the current access point is well removed from the intersection of Willoughby and Ryde. Therefore, in terms of potential overshadowing impacts that would occur by relocating an access off Ryde Street, it is agreed that the access onto Willoughby Street is more appropriate.

19 I am satisfied the proposed development is not an overdevelopment of the site and that the development will read as well articulated and well designed with regard to details in terms of privacy overlooking, respecting the amenity of the adjoining properties and in this regard it is considered to be a 'good neighbour'.

20 I am also satisfied that the presentation to Willoughby Street as shown in the amended plan will in fact provide for an appropriate fit in the residential area. This will clearly read as a medium density form of development but one that will not be out of keeping with the character of the area and one that would be contemplated in terms of council's planning controls.

21 The overshadowing for No. 23 was a matter that was looked at extensively on-site and there has been further additional information provided.

22 The proposed development is one that, given the orientation of the subdivision, I am satisfied that there will not be unreasonable overshadowing of No. 23. In fact with the setback that has been provided with house number one, this will provide for reasonable solar access to No. 23. That is not to say that there will not be some overshadowing impact. The role of the Court is to determine whether the development as proposed is reasonable and does not create unreasonable impact.

23 I am satisfied that the applicant has carefully designed the dwelling with the generous setbacks to the side boundary, that is the northern boundary of number twenty-three, such that the impacts are minimised in terms of the overshadowing on number twenty-three.

24 It could be seen that the residential amenity of the area generally is high. The rear gardens of these dwellings within the vicinity that border the subject site clearly have a desirable residential amenity. I am satisfied that with the proposed landscaping and with the amendments as further suggested, that the proposed development will sit within a landscape setting and will be commensurate with the area, with suitable species also consistent with those that we see in the vicinity of the subject site.

25 The outcome of the amended plans is worthy and I will say that the applicant in these proceedings has certainly co-operated in terms of minimising impacts on adjoining neighbours. I am satisfied the proposed development in terms of the final outcome, that is the built form, the landscaping and relationship to the adjoining properties represents good design and is appropriate for the location.

26 On the basis of my assessment and with the assistance of the council's officer, I am satisfied that approval should be granted. On the receipt of a current basix certificate within seven days together with an emailed version of the conditions within the same timeframe the formal orders of the Court will be issued,

27 Accordingly, the formal orders of the Court will be: 1. The appeal in respect of the property known as 25 Ryde Street, Epping is upheld.

2. The development application submitted to Parramatta City Council, as amended and shown in Exhibit J., is approved subject to the conditions contained in Annexure 'A'.

3. The exhibits with the exception of Exhibits J and 10 are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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.