D & C Consortium Pty Ltd v Parramatta City Council

The site and its context 5The site is a square, corner allotment located on the western side of Buller Street, North Parramatta. It has a frontage of 30.48 m to each street and site area of 923 square metres. The site currently contains a single storey weatherboard house at the front, a tennis court within the northern half of the site and a detached fibro garage and workshop located along the western boundary 6Immediately to be north and west of the site are single storey detached dwelling houses, with a multi unit housing development to the west along Belmore Street on its northern side and a number of similar developments on the southern side. That multi unit development on the northern side is the only multi unit development in the block bounded by Belmore, Buller, Bellevue and Brickfield Streets. 7There are a higher proportion of multi unit housing developments and residential flat buildings on the southern side of Belmore Street interspersed with single dwelling houses. It is apparent that the area has been in transition over a number of years from single storey detached housing to medium density development. The form of development is similar to that proposed, comprising basement carparks, two levels of residential accommodation and attic rooms at the third floor. There are also a number of new detached dwellings and dual occupancy developments within the vicinity of the site.

The planning controls 8At the time the application was lodged the site was zoned 2(b) Residential under LEP 2001. LEP 2011 commenced on 7 October 2011 and zoned the site R2 Low Density Residential. Under that zone the proposed development, defined as, multi-dwelling housing, is a prohibited use. However, clause 1.8A provides savings and transitional provisions as follows: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. Note. However, under Division 4B of Part 3 of the Act, a development application may be made for consent to carry out development that may only be carried out if the environmental planning instrument applying to the relevant development is appropriately amended or if a new instrument, including an appropriate principal environmental planning instrument, is made, and the consent authority may consider the application. The Division requires public notice of the development application and the draft environmental planning instrument allowing the development at the same time, or as closely together as is practicable. 9Those savings provisions apply to the application as it was lodged prior to LEP 2011 commencing. 10Prior to the gazettal of LEP 2011 the proposed development was permissible with consent in the 2(b) zone, as multi unit housing. The objectives for the 2(b) zone were: (a) to enhance the amenity and characteristics of the established residential area, and (b) to encourage redevelopment of low density housing forms, including dual occupancies and multi unit housing, 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, and (d) to provide opportunities for people to carry out a reasonable range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood, and (e) to allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods, and (f) to ensure the road network has the capacity to cater for increased development. 11The proposed development was also subject to the provisions of Parramatta Development Control Plan 2005 (DCP2005). 12LEP 2011 contains development standards for height and floor space ratio (FSR), which are not met by the application and the Council contends that this fact demonstrates the application is inconsistent with the low density residential zone. 13LEP 2011 introduces a range of zones in the vicinity of the site. Land on the south-east and south west corners of Buller and Belmore Streets is zoned R3 Medium Density Residential. That zone changes to R4 High Density Residential further west on the southern side of Belmore Street and R2 Low Density Residential further to the east. All land on the northern side of Belmore Street in the area bounded by James Ruse Drive and Pennant Hills Road, with the exception on one block between Bellevue and Belmore Streets that already contains higher density development, is included in the R2 zone.

The evidence 14Expert town planning evidence was heard from Mr A Minto for the applicant and Mr L Fletcher for the council. It is common ground that the plans before the Court are compliant with all of the relevant development standards and controls contained with LEP2001 and DCP2005 and that the development, having a maximum height of 9.3 m and FSR of 0.65:1 exceeds the 9 m height control and 0.5:1 FSR control contained within LEP2011. It was agreed that the inclusion of attic rooms in the calculation of FSR under LEP2011 where those rooms were excluded under LEP2001 affects the calculation and therefore the impact of that control but disagree as to the relevance of the departure. 15The council does not raise any contentions in relation to the development having any adverse amenity impacts to adjoining properties however says the development is inconsistent with the zone objectives under both LEP2001 and LEP 2011. 16The planners disagree as to whether the development is consistent with the zone objectives and if it is consistent with the planning intent of the R2 zone. The zone objectives are: •To provide for the housing needs of the community within a low density residential environment. •To enable other land uses that provide facilities or services to meet the day to day needs of residents. •To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment. •To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods. 17Mr Minto says the bulk, scale and height of the building is consistent with the type of development that will occur in the R2 zone and says that, in the case of a dual occupancy development a FSR of 0.5:1 would be allowed. In calculation of the floor area under LEP2011 the area of garages is excluded and therefore, the provision of at grade garages would add 60 sqm to the building's bulk. With the 100 sqm that is included as attic rooms within the proposed development that equates to 160 sqm which is less than the 142 sqm floor space included in the proposal that contribute to the non-compliance with the 0.5:1 control. Mr Fletcher says that the building presents as four, not two dwellings, would be significantly different to a dual occupancy building and the additional floor area equates to one dwelling unit however agrees that the attic room floor space is not as perceptible. 18Mr Minto says the proposal does not substantially undermine the relevant objectives of LEP2011 and in particular the objective of the R2 zone, which is to provide for the housing needs of the community within a low density residential environment. He notes that the subject property now adjoins a zone boundary whereby the northern side of Belmore Street is zoned R2 whilst the southern side is zoned R3 and R4 (towards its western end). He says that in addition to future multi dwelling housing developments which will occur opposite the site as a result of the R3 zoning, there are also a number of existing multi-unit housing developments, including town house developments within the visual catchment of the site including a town house development to the west of the site separated by one single dwelling and to the south west of the site on the opposite side of Belmore Street. 19Mr Fletcher says the development is not consistent with the built form character of "a low density residential environment" and is therefore inconsistent with the zone objectives. He assesses "low density" by reference to the type or form of residential development as well as the height and bulk of the proposed development in comparison with existing and likely future forms of residential development in the same zone and concludes the proposed development fails to be characteristic of both the existing and the likely future residential development in the R2 Low Density Zone, particularly because the development, as four attached dwellings, appears as "multi-dwelling housing" which is now a prohibited form of development in the locality. Whilst he acknowledges there are similar forms of development within the visual catchment he says, that with only one exception, those developments are now within different zones and for that reason, the developments on the opposite side of Belmore Street should be given little weight in the consideration of whether the proposed development will be consistent with the character of a different zone, specifically a low density residential environment. 20Mr Minto disagrees and says the site is located within a low density residential environment which is currently made up of a range of building types including single dwelling houses, dual occupancies (duplexes) and multi-unit housing (townhouses) and says the visual catchment of the site including both sides of Belmore Street extending both to the east and west of the site should be considered and because of the mixed form of development, the proposal will sit comfortably with the context of its surroundings. 21Mr Fletcher says the proposal should be considered against the block bounded by Belmore, Buller, Bellevue and Brickfield Streets and has particular regard to it adjoining single storey detached dwelling houses. Mr Minto says that a more broad approach is required and that both sides of Belmore Street including the areas to the east of Buller Street are relevant to consideration of the application. 22With regard to the objectives of the 2(b) zone, Mr Fletcher says the proposed development, because of its appearance, typology, height and bulk, is not in character and will not enhance the amenity of those characteristics of the established residential area and the surrounding built environment and is therefore inconsistent with those objectives. Mr Minto disagrees and says the proposal provides for a high quality built form having appropriate articulation together with a bulk and scale which sits comfortably within its surroundings and that there will be no unreasonable detrimental impacts which arise as a result of the proposal particularly in relation to the amenity of the adjoining properties. Accordingly, he says the development is consistent with those zone objectives.

Conclusion and findings 23The fact that LEP2011 has commenced removes any doubt that the plan is both certain and imminent. The essential question is the weight to be given to that plan, and in this regard, guidance is provided in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 where at it states: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 24In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): ...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application. 25By dint of c1.8A of LEP2011, the proposed use remains a permissible use, however, in accordance with Blackmore it is necessary to determine whether the aims and objectives of that plan are achieved. Those aims and objectives are found in clauses 1.2 (Aims of the Plan) and the objectives for Zone R2 as detailed at [16] above. Clause 2.3(2) requires a consent authority to have regard to the zone objectives when determining a development application. 26In determining whether the proposed development is antipathetic to or does not detract from the objectives or is inconsistent with or accords to the planning controls, I prefer the evidence of Mr Minto who, whilst adopting a broad approach, has demonstrated that the development would not be contrary to those planning objectives. That is because he has demonstrated that the bulk and scale of the development is not inconsistent with that anticipated in the R2 zone and I accept his view that the development, although comprising four dwellings, is not of a density that is out of character with the current locality and what will occur in the future. 27The aims of LEP2011 include the provision of housing to accommodate the needs of the existing and future residents of Parramatta whilst ensuring it enhances the amenity and characteristics of established residential area. The relevant aim of the R2 zone is to provide that housing in a low density residential environment. Low density development is not defined however, consistent with the view taken by Brown ASC in Bris v Parramatta City Council [2012] NSWLEC 1046: ... consideration of the proposed development against the objective cannot reasonably be undertaken without a consideration of the existing built form in the area. .....that given the proposed development enjoys the benefits of the savings provisions, the test of whether the proposed development undermines the relevant objective of the R2 Low Density Residential zone, in a substantial way, is essentially a test of whether the proposed development sits comfortably in its local environment or setting, particularly given the wide range of building forms within the R2 Low Density Residential Zone. 28The case considered by Brown ASC involved a site further to the east along Belmore Street, on the southern side of the road. As the Acting Senior Commissioner noted, the sites were down-zoned on the making of LEP2011 and, due to the fact that multi unit housing had been permitted under LEP2001, there are a number of such developments already constructed in the vicinity of the site. 29I agree with Mr Minto that the development is of a similar form to that characteristic in the locality and therefore does not undermine the aims of the plan. I also agree that the development, particularly due to the fact that it incorporates basement parking that is fully underground, has less impacts and presents significantly less in terms of bulk and scale to existing multi-unit housing developments in the vicinity of the site which incorporate raised basement levels. Therefore the height of those buildings is considerably greater than the two storey development proposed and, as agreed by Mr Fletcher, the configuration of the roof ensures that the non-compliant height would not be discernible. The attic rooms also are an important consideration in terms of bulk and scale and particularly with regard to the change in definition to FSR. For those reasons, I am satisfied that the proposed built form is not inconsistent with the bulk and scale that will occur in the R2 zone and is not inconsistent to that of a low density residential locality. 30Because of this finding and the fact that the development as proposed satisfies all of the relevant requirements in DCP2005 and there are no merit concerns with the proposal, I am also of the view that the proposed development is not antipathetic the objectives of LEP2011 or the R2 zone, nor would it detract from the achievement of those objectives or undermine the planning intent of the controls contained within that plan. Whilst I give the plan significant weight because it has commenced, and in particular give consideration to the fact that the proposed use would be prohibited, that weight is not determinative in view of the fact that I have found the proposed development to be consistent with the objectives and planning intent for the locality. 31During the hearing there was discussion about whether the applicant had to provide a lift or chair lift from the basement level to unit 1. It was agreed that there are no planning controls within the council's Planning Instruments or Development Control Plans that require the provision of this facility and that the relevant Australian Standard, AS 4299 is the standard to be applied if you are providing an adaptable unit. As both the experts agreed that the unit was capable of adaptation to facilitate its occupation by a person with a disability and the council's controls do not call for its immediate installation, I do not consider that it is necessary that a lift be provided as a condition of consent. All other conditions are agreed between the parties. 32The Orders of the Court are: (1)The appeal is upheld. (2)DA/314/2011 for the demolition of an existing dwelling and construction of a multi unit housing development comprising four townhouses over basement car park at 81 Buller Street, North Parramatta is approved subject to the conditions in Annexure 'A'. (3)The exhibits, other than exhibits A and 1 are returned. Sue Morris Commissioner of the Court 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: 14 January 2014