D - Studio Architects Pty Ltd v Parramatta City Council

The site 6The site comprises Lot 137 and Lot 133 in DP 8821, which is situated on the northern side of the Dixmude Street. The overall width of the site is 36.6 m, the eastern side boundary is 157.7 m, the western boundary is 112.9 m and the total area is 4900.1 sq m. The northern part of the site is low -lying and forms a boundary with the creek that is part of the Duck River system that includes an extensive open space corridor. 7This site is located within a residential area where the current pattern of development is characterised by predominantly single storey detached residential dwellings with large, private back yards. However, some redevelopment of the original dwellings has taken place recently.

Planning controls 8The following controls apply: .1 EP & A Act 1979 ; under which the development is classified as "integrated development". .2 Parramatta LEP 2001 (PLEP) ; under which the site is zoned 2B Residential and is permissible with consent. .3 Draft Parramatta LEP 2010(DLEP) ; under this DLEP the site proposed to be zones R2 (Low Density Residential). As such the proposed development would be prohibited. However clause 1.8A contains a savings clause. .4 Parramatta DCP 2005 (PDCP) ; which supplements the Parramatta LEP and provides detailed objectives and design guidelines for development.

The evidence. 9Detailed evidence was presented by:

• Ms K Lafferty; Senior Development Assessment Officer with council;
• Mr A Betros; Consulting planner for the applicant; 10A joint engineering report was submitted by Mr N Jeatheesan and Mr P Kozarovski. It dealt with potential flooding and water management issues on the basis of additional information provided by the applicant. They agreed that the proposed on-site-detention system and water tanks were satisfactory and also that the basement car and its entry driveway would be secure against flooding risk from the creek system. Consequently, they also agreed that the proposal would not have any material impact on flooding in the area and supported the application subject to the imposition of particular conditions of consent. 11The matters raised by the objectors are similar to those identified by council. Insofar as some other concerns were expressed about increased traffic and parking impacts, council does not support this. It seems that while there would be some change in the volume of traffic and on - street parking, nevertheless council is satisfied that this within the environmental capacity of Dixmude Street and does press it as an issue. 12Following joint conferencing by the planners, the applicant submitted a number of amendments to address matters of concern. A further joint planning report was submitted assessing these amendments.

Draft LEP 13Insofar as the site is zoned 2B Residential under the PLEP and the development is permissible, a DLEP has been prepared and a s65(1) Certificate issued in October 2009. It was exhibited with submissions closing on 7 May 2010. Council resolved to endorse the plan with amendments after consideration of these submissions. However, I understand that the matter of zoning for medium density and dual occupancy development in respect of the subject location is not resolved. 14Under the DLEP the site is proposed to be zoned R2 (Low Density Residential) and medium density development of the form proposed would be prohibited. However cl 1.8A contains the following savings clause: "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 been exhibited but had not commenced." 15The planners initially considered the status of the DLEP and based on their knowledge of the approval process, Ms Lafferty considers the approval of the LEP imminent and certain but Mr Betros disagrees. In the circumstances of this case, the savings clause captures this application requiring the relative merits to be assessed and appropriate weight being given to the DLEP.

Desired future character 16This issue was particularised in terms of the proposal being contrary to the desired future character of the area by reference to the following low density residential R2 zone objectives, which cl 2.3(2) requires to be considered:

• To provide for the housing needs of the community within a low density residential environment.
• To ensure that building form, including that of alterations and additions, is in character with the surrounding built environment. 17In response to this issue that the proposed form of development being prohibited under the DLEP, Mr Betros says that it is generally consistent with the aforementioned objectives because it:
• provides for the housing needs of the community within a low density residential environment,
• has a "low density" character with FSR of 0.44:1, side setbacks of 4.5m, incorporates deep soil planting has a predominant single storey scale, and
• the built form of 1 and 2 - storey dwellings within landscaped setbacks is in character with the surrounding built environment. 18Furthermore, he says that the valid 2008 approval, which is predominantly 2 - storey form also needs to be taken into account and in this case, the proposed density of 0.44:1 is below that permitted for dwelling houses - currently FSR of 0.6:1 and proposed FSR of (0.5:1) under the DLEP. On this basis, he considers the proposal is consistent with the objectives to warrant consent. 19Against this, Ms Lafferty says the proposal is not consistent with the relevant objectives because it is of a medium density form with multiple dwellings that is significantly different from the existing character of the area that mainly consists of single storey dwellings in garden settings with at grade parking. She considers the form of the 2008 consent is such that it has less impact on the character of the area and that it does not provide any reasonable basis for approval of the subject application. Accordingly, she does not consider it is consistent with the objectives of the proposed R2 zone to merit consent.

Streetscape 20This issue mainly concerns potential adverse impacts on the streetscape due to the visual dominance of the basement car parking driveway and entry, together with the street presentation of the front Units 1 and 13. Relevant controls include the provisions of clause 16 that consent must not be granted to development unless the consent authority is of the opinion that the development is consistent with the zone objectives. In this case the relevant zone objectives are: a) to enhance the amenity and characteristics of the established residential area... (c) to ensure that building form, including that of alterations and additions, is in character with the surrounding built environment, ... 21Other controls are contained within the PDCP, wherein the objectives in cl 4.2.1 state: 0.1 To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment... 0.4 To encourage attractive street frontages and improve pedestrian amenity. 22As a reference point, the planners agree that the 2008 consent includes a similar basement car park entry. In support of the proposal Mr Betros says that the driveway element occupies only 16% of the frontage and the ramp would be partly concealed by the adjoining dwellings either side of the driveway, which is screened by landscaping. Therefore the proposal would have a similar streetscape impact to the 2008 approval. 23Ms Lafferty however does not consider the driveway/basement garage acceptable in the circumstances because of its dominating central location and the associated treatment of the frontage, which she considers fails to provide visual or physical integration between the development and the public space, consequently reducing "activation of the street".

Internal amenity; building separation, building articulation, solar access. 24This issue concerns a number of elements that contribute to the resultant amenity for the future residents of this development. Firstly, the planners recognise that the elongated nature and width of the site imposes constraints on the ability to provide satisfactory access to the individual units, whilst also maintaining reasonable separation distances between the 2 rows of town houses, so as to achieve a built form that is compatible with the character of the surrounding built environment. 25The identified controls are those contained in cl 4.3.2 of DCP 2005. Mr Betros addressed this issue on the basis that the front 2 - storey dwellings significantly restrict views of the internal development from the public domain and as the internal units generally satisfy the minimum separations, albeit with a few minor non - compliances and include appropriate landscaping, this issue is satisfactorily addressed. 26Against this, Ms Lafferty says that the revised design results in a number of parts of the buildings not achieving the following minimum separation distances specified in cl 4.3.2 of the DCP:

• 12m between habitable rooms,
• 9m between habitable rooms facing blank walls,
• 3m between non -habitable rooms. 27In this regard, she identified in exhibit 13, 7 examples of non - compliances, including those where the separation between habitable rooms is in the order of 11.5 - 11.6m, e.g. T3 - T 15; bed - bed = 11.6m. Considering that the primary, central access to the units extends some 90m in length, she does not consider that the minimal separation distances over this length allows for adequate landscaping, solar access, semi - public areas, communal area and safe pedestrian access. Accordingly she says this would result in a poor level of amenity for future occupants, as well as visitors. 28The other internal amenity issue concerns the proposal's compliance with solar access control in the DCP, which prescribes a minimum of 3 hours to habitable rooms at the winter solstice. The planners agreed that 21 of the 22 townhouses achieved this and that the provision of glass block window in several of the units would improve the provision of natural light. According to Mr Betros, the remaining unit complies if the 3 hours commences at 8.30am. 29However, there was some disagreement between the planners about the classification of 'habitable rooms' as per the control. Ms Lafferty considers that kitchens and dining rooms are habitable rooms that should comply with this control. Accordingly, she does not consider all units achieve satisfactory solar access. But Mr Betros says that because of the 'open plan' type of design, it is not appropriate to make this distinction as the general living area complies.

Private open space 30This issue was initially raised because most of the units did not provide the designated minimum 40 sq m area. However the plans were amended with most units now achieving the basic 40 sq m area, although there are some marginal variations. The planners agree there is reasonable compliance with the minimum numerical controls. 31However, Ms Lafferty maintains her concern that the amendments to widen the courtyards to satisfy the minimum private open space requirement has resulted in the aforementioned non - compliances with the building separations, which is a negative aspect of the proposal. 32An associated issue then concerns the solar access to the courtyards. The DCP control requires at least 50% of the private open space to receive a minimum of 3 hours at the winter solstice. Insofar as the initial plans did not achieve this, the subsequent amendments have improved this situation. 33According to Mr Betros, 77% of the units now achieve this design standard. He says that given the north - south orientation of the lot, this is a suitable outcome and in any case, on other days the courtyards progressively comply. 34However, this level of compliance is only achieved by the utilisation of common boundary fencing with the neighbouring properties that is 1800mm high and incorporating 2 louvres in the top 200mm to enable the penetration of additional slivers of sunlight to satisfy the numerical control. Consequently Ms Lafferty does consider these slivers of sunlight should be included so as to satisfy the control. Accordingly she does not consider the courtyards result in an acceptable level of amenity.

Findings 35I have initially considered the merits of this proposal within the parameters of the prevailing PLEP and DCP 2005, under which it is permissible with consent in the 2B Residential zone. These controls contain a number of qualitative and quantitative assessment criteria that require assessment. 36Notwithstanding this, the DLEP has to be given appropriate weight . Submissions were made regarding the authorities in this respect, which are summarised as follows: The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 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 parlicular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the preexisting instrument, which would in a substantial way undermine that objective. If the draft LEP is imminent and certain, Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by Zone R1 General Residential and whether the proposed development will undermine the objectives of Zone R 1 General Residential. In 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 [22J 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 . 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. 37Whilst I do not consider there was any compelling evidence that the DLEP is imminent and certain, I have considered the possibility that this form of development may be prohibited. But as the application has the benefit of the saving clause, I consider the provisions of the PLEP would be given determining weight. 38Relevantly then cl 16(3) of the PLEP requires the consent authority to be satisfied that the development is consistent the zone objectives to enhance the amenity and characteristics of the established residential areas and to ensure that the building form is in character with the surrounding built environment. 39Whilst the existing character of the surrounding area is that of predominantly single level detached dwellings on large garden lots, I accept that an appropriate form of multi unit housing could be acceptable. Obviously this would have a different presentation but presumably it should incorporate some of the attractive amenity elements of the neighbourhood so as to achieve a reasonable level of compatibility. These elements include vegetated street setbacks, mix of 1 and 2 - storey dwellings, side setbacks incorporating planting which provide high levels of privacy, together with large private open spaces that allows larger type vegetation. 40This type of issue was dealt with in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where the Senior Commissioner set out the following principles to be considered when assessing the compatibility of a proposal with its surroundings: 42. Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. + Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. + Is the proposal's appearance in harmony with the buildings around it and the character of the street? 41Adopting and applying these principles to the present case in terms of the disparate planning opinions, based on the planners evidence, it is apparent to me that whilst the current proposal generally satisfies the numerical compliance controls, it nevertheless seems to be 'squeezing in' the maximum number of units, which substantially achieve the minimum levels facilities that consequently compromises the objectives to enhance the amenity and characteristics of the neighbourhood in my assessment. 42This outcome arises because this proposal is for a majority of larger units i.e 7x4 bed, 12x3 bed and 3x2 beds. Consequently, it seems a reasonable assumption to me that there will likely be more people dwelling on the site than if more small units were incorporated. Therefore appropriate facilities should be provided to ensure the desired amenity outcome is to be achieved. 43As evidenced from the 2008 approval for a multi unit development, I accept that council was satisfied with this form of development in the locality. However, I initially have some concerns about the compatibility of this proposal with the existing neighbourhood character, particularly its bulk and scale. Insofar as the FSR index is commonly used to assess bulk and scale of buildings, I note that the proposal appears to demonstrate comfortable compliance (i.e 0.44:1) with the FSR numerical control. 44However about 30% of the rear of the site is low - lying and flood -prone land that constrains residential development. Consequently the residential development is concentrated towards the front of the lot and if a bulk and scale index was made on the developable portion of the land, the "apparent" FSR would be in the order of 0.6:1, which is at the maximum permissible. Whilst this is not the test, nevertheless the proposed form of development presents in my opinion, as a relatively long medium density development by comparison with the surrounding development that challenges the requirements for compatibility with surrounding properties. 45With regard to the streetscape presentation , it is obviously different due to the proposed basement garage entrance. However, I am satisfied that the proposed building form, together with the setbacks and landscaping can reasonably fit in. In this regard I note that the zoning permits large 2 - storey dwellings, which could have double driveways and associated garage doors in close proximity, which would be exposed to the street and likely to have a more obtrusive presentation than the more recessive single basement garage entry. 46But I am persuaded to accept Ms Lafferty's opinion that the internal amenity of the development is significantly compromised. As I have noted, this development optimises the number and sizes of the proposed 22 units, whilst predominantly only providing the minimum level of facilities. I am particularly concerned that there is no proportional increase in the facilities above the minimum for the larger units and accordingly I note the frequently stated position of the Court that mere compliance with the numerical controls does not guarantee approval. 47It appears to me that one of the attractive elements of this neighbourhood is availability of abundant private open space areas. This provides opportunities for landscaping and areas for relatively private outdoor entertaining. However, all of the proposed private open space areas for the units are in the order of the minimum requirement of 40 sq m only. It seems to me that the amenity of the larger units and neighbouring properties is likely to be significantly compromised in the circumstances. 48Whilst the degree of any comprise will vary due to the individual layout of the units, I refer to TH 3 as an example (See Attachment AA) because of the references to it by the planners. The specifications for this unit are:

• 4 bedrooms and a rear private open space of 39.8 sq m
• Rear back fence of 1800mm including top 200mm louvres to improve solar access,
• Side boundary fences of 1600 mm height and of translucent material to also facilitate the following level of solar access to the courtyard at the winter solstice:
  • 20.1 sq m @ 10.32 am,
  • 26.5 sq m @ 11.32 am,
  • 23.9 sq m @ 12.32 pm,
  • 20.00sq m @ 1.32 pm.
• Rear garden planter 500 - 800mm wide incorporating Blueberry Ash and Banksia hedging to be trimmed at 1500mm height.
• Combined laundry/ kitchen area of approximately 2m x 3.2m (kitchen 2m x 2m) with offset window 300mm wide.
• The planting of 3 x Blueberry Ash @ 1.5m spacing and minimum offset from the building of 800mm and located so as to screen the 300mm window.
• Building separation to TH15 of the non-habitable ground level laundries of 6.3m and upper level bathrooms of 12.19m. 49This typical unit specification confirms my assessment that this large unit basically achieves only the minimum amenity standards and there is likely to be a negative cumulative effect considering all the other units are similarly designed. This supports my assessment that the amount of unit area squeezed in is excessive and therefore unlikely to enhance the amenity of the area. 50Notwithstanding that this TH 3 just meets the minimum numerical controls, I accept Ms Lafferty's assessment that private courtyards of units T13, T14, T15 have non - complying solar access in the order of 1.20hr, 2hr, 2hr respectively. I do not consider any compelling evidence was presented, which would warrant the exercising of discretion to allow a significant reduction in amenity for these units, particularly in the circumstances of the development of a large lot such as this. This is a negative aspect of the proposal, in my assessment. 51Another negative aspect is the inability to obtain 3 hrs of solar access to the living areas of T13 and T14, which only achieve 2.5 hrs between 9am and 3pm, as required by the DCP, according to the evidence in Exhibit R on which I rely. These are larger 3 bed/media units and I consider the resultant amenity for these units is significantly compromised. 52As I have noted, the proposed design is of an elongated nature being about 90m long of practically continuous building form. As required by the DCP it does incorporate some communal open space within the central access corridor, which in places achieves only the minimum separation between buildings and compromises the visual amenity in my opinion. 53More importantly however, cl 4.3.1 of the DCP requires the provision of low maintenance communal open space areas that facilitate opportunities for recreation and social activities e.g. BBQ or play areas are identified. The design response to this is to provide 3 areas along the central access way with 4m x 5m pergolas. They each include garden beds and bench seats, which are approximately 3 - 4m from bedroom windows in some cases. 54Taking into account the predominance of larger units with minimal private open space areas, it seems to me that there would likely be demand for an area where larger family or social gatherings could take place. Such area would ideally include the BBQ area and designated play areas as indicated in cl 4.3.1. But I do not consider the proposed pergola areas adequately provide the level of convenience, attractiveness and privacy amenity envisaged by the controls. 55Interestingly, the proposal includes some landscaping of the low - lying area towards the north of the site. Access to this area is to be available from the end of the central access way via a 1.2m wide pathway adjacent to the courtyard fence of T12. In my assessment, the inclusion of T11 and particularly T12 block the visual connection of this area from the central access way of the development. It also seems that if a more direct and open access was provided to this area, it would more effectively satisfy the DCP requirement for the provision of a BBQ and other facilities in an attractive and convenient location that minimised disturbances to other residents, as is likely to happen if the pergola areas are to host communal activities. 56I also have particular concerns about the integration of the proposed landscaping to adequately achieve the stated landscaping objectives and design principles in section 4.1.10 of the DCP. In this regard, I firstly note that the landscaping theme includes various new plantings throughout the development. However I have concerns about the adequacy of volume and width of the garden beds/locations to ensure the proposed planting outcome is sustainable. 57Insofar as I previously referred to the example of T3, it includes a Blueberry ash (Eleaocarpus reticulatus) in the boundary planter garden, which is designated 500mm - 800mm wide (depending on either the DA or the landscape plan scaling). Considering that the specification for this tree is a maximum height of 6m, I have considerable difficulty understanding how it will achieve anything like its natural potential when planted about 300mm from the fence and the canopy is likely to overhang the neighbouring property. 58I also have some reservations about the overall effectiveness of the proposed garden planting of the multiple Banksia spinulosa plantings that are adjacent the rear fence and specified to be kept clipped at 1.5m. Bearing in mind that this clipping would essential so as not to compromise the slithers of sunlight penetrating the louvres above the adjoining 1.6m high boundary fences. Otherwise the solar access of this courtyard would be compromised. 59I then see that it is proposed to plant 3 of these Blueberry ash @ 1.5m centres in front of T3 with the closest being 1m off the building and over the basement carpark. Whilst they might provide some screening of the building if they attain somewhere near their specified mature height, nevertheless the landscape plan indicates a canopy spread in the order of 3m, which would overhang the common accessway, interfere with the main entry path to T13 and also block natural light to the 300mm window near the kitchen. As it is proposed to plant some 35 Blueberry ash in similar circumstances throughout the development, I am not satisfied the overall landscaped design is sustainable and well integrated to achieve the landscaping objectives so as to enhance the amenity of the area. 60In connection with this, I note that in the matter of Dipper & Ors v Pittwater Council [2006] NSWLEC 273, the Chief Judge said in dealing with appropriate landscaping: 32 I reject this means of controlling the height. The far preferable planning solution is to devise a means which does not depend upon constant maintenance of landscape material. The Council's solution achieves this goal. The Council's solution is to replace trees which have an inherent capacity to grow higher than the desired height, with trees which have the inherent capacity to grow only to the desired height. This is the preferable solution. The alternative of a covenant is a second best solution. It involves, for the life of the development, continually maintaining plant material at a certain height. It involves constant dealings between respective owners of the properties burdened and benefited by the covenant and their successors in title. It would inevitably lead to discontent and argument between the owners. Generally, it is preferable that conditions imposed under the EPA Act should not depend upon private covenants between neighbouring properties 61Following this process, it would seem preferable to only plant appropriate species in the gardens, which don't rely on regular clipping. I have reservations about the utility of the proposed courtyard plantings in terms of sustainability, degree of regular maintenance, effectiveness in restricting overlooking and privacy loss along the 1600mm side fences. 62In summary then, having considered the evidence and observations at the site inspection, my assessment is that this amended proposal represents an overdevelopment of this constrained site. The design approach to maximise built form by the inclusion of a majority of larger units, which predominantly only achieve the minimal amenity for the court yard areas and solar access, minimal solar access to living rooms together with a poor level of communal open space provisions, reduces the amenity for future residents, in my opinion. Consequently, I do not consider the development would achieve acceptable levels of consistency with the objectives of the zone, as required by cl 16(3) of the PLEP. 63I recognise however that some of the aforementioned elements leading to this conclusion were not particularised in the contentions, although I expect they would be part of any 'good design practice' responding to the stated development controls. In these circumstances, I consider it reasonable to allow the applicant the opportunity to respond to the aforementioned negative features in respect of the subject development application, with particular reference to any conditions that might address the negative features, before final orders are made. The respondent may also make any appropriate response. R Hussey 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: 01 June 2011