D - Studio Architects Pty Ltd v Parramatta City Council

The evidence 4The town planners Ms K Lafferty (council) and Mr A Betros (applicant) have reviewed the amended plans and agree with the following points:

• Reduction of townhouse numbers from 22 to 19,
• 100% of the living rooms received 3-hour solar access between 9 a.m. and 3 p.m. on June 21 (however KL maintains that all habitable rooms still do not receive 3-hour solar access),
• 100% of dwellings receiving 3-hour solar access to 20 square metres of the private open space between 9 a.m. and 3 p.m. on June 21,
• All private open space areas exceed 40sqm between 44sqm - 65.7sqm,
• The potential accommodation in the dwellings has been reduced with the elimination of all 4-bedroom dwellings, noting that some of the 3-bedroom dwellings have media rooms as well,
• Townhouse 12 (at the end of the row at the northern end) has been deleted and replaced with new communal open space
• A revised landscape plan, which reduces the density of trees in the central and outer courtyards with no trees planted within 1 m of the external boundaries or overhanging neighbouring properties. 5However the planners still have some disagreement on the some aspects of the following issues: i.Incompatibility of the proposal with the surrounding residential character thereby being inconsistent with cl 16(3) of Parramatta LEP 2001 (streetscape, courtyard fence within the front setback and relationship with neighbouring dwellings), ii.Inadequate separation distance between the 2 rows of townhouses, iii.Unsatisfactory internal design layout in terms of casual surveillance/community safety. iv.Solar access provision. Compatibility with surrounding residential area 6As I noted in my previous findings, cl 16(3) of the PLEP requires the consent authority to be satisfied that the development is consistent with 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. 7My initial finding was that an appropriate form of multi unit could be acceptable, even though it may be somewhat different to the surrounding low-density detached housing. I have considered the various characteristics of the area discussed by the planners and found that the original proposal included relevant characteristics and therefore generally satisfied the zone objectives, except for the density and internal amenity. 8In this regard, I gave considerable weight to the current consent granted by council to allow 14 townhouses, with basement parking on part of the subject land, i.e. 27 Dixmude Street. This consent indicates to me, the characteristics for this type of development that council considered were required to satisfy cl 16(3). Accordingly, I note that the current application includes these characteristics. 9However, Ms Lafferty still considers the amended proposal is inconsistent because it is for medium density development with multiple attached dwellings, it includes a basement garage and the floor space and height exceeds that of the surrounding properties. 10My assessment of the amended proposal is that it is now of reduced density and the revised courtyards have increased areas, which mostly provide a 5m setback to the neighbouring properties. These setback areas are to incorporate more appropriate landscape plantings to enhance the natural environment. As there is no significant amendment to the front elevation of the proposal where the units present as 2 - storey with the internal buildings presenting predominantly as single storey with attic roofs, I consider this is consistent with the controls do allow 2 - storey dwellings fronting the street. Therefore, I am satisfied to rely on the opinion of Mr Betros that the amended proposal satisfies the provisions of cl 16(3). Internal building separation 11The reduction in units has generally allowed the townhouses to be shifted 400mmm towards the internal courtyards and enabled a reconfiguration of the internal layouts of some of the remaining units. Notwithstanding this, Ms Lafferty is concerned that there are still some non-compliances with the minimum building separation distance of 12m specified in s 4.3.2 of the DCP. An example identified is the distance between the kitchen/laundry areas of T4 and T14 where the separation is 11.6m. Ms Lafferty also considers that the separation distances between the units, over the 90m span of buildings, does not allow for the inclusion of adequate landscaping, solar access and safe pedestrian access. 12However, I am satisfied to rely on the alternate opinion of Mr Betros that in an overall consideration, the separation of buildings is acceptable. It seems to me that the non - compliances with internal separation is of a minor nature and not adjacent to the living rooms, which the planners agree comply with the minimum requirements. In the circumstances, I think it is acceptable. 13The other aspect of building separation concerns the overall length of the development. Whilst there are limited "breaks" between the townhouses, I accept the opinion of Mr Betros that the revised proposal complies with the FSR controls and the landscaping scheme will achieve a reasonable balance between the built and natural forms. I think there is a considerable improvement with the elimination of the original T12 on the northern end of the development and its replacement with landscaped communal area. Solar access 14The planners agree that the amended layout improves the solar access amenity. However Ms Lafferty still has concerns that some of the dining rooms and kitchens areas do not receive the minimum 3 hours of sunlight on 21 June. Against this, Mr Betros says the subject rooms are part of the combined "open living rooms", which combined with skylights, allow adequate solar penetration. I rely on the opinion of Mr Betros as being reasonable in this case.

Conclusions 15Having carefully considered the evidence, the amended plans, and submissions and undertaken a view, I consider this application now merits conditional consent. 16An important consideration in the determination of this matter concerns the weight to be given to the various controls. When the application was lodged, it was subject to the prevailing controls in the PLEP 2001, under which appropriate multi unit housing was permissible in the 2B Residential zone. During the passage of the development application the Draft LEP 2010 was progressed and it includes the subject land in the R2 (Low Density Residential) zone where multi unit housing is not permitted. 17Even though the parties agree the gazettal DLEP is imminent and certain, nevertheless this application has the benefit of a saving clause, which allows it to be considered under the current LEP 2001. In considering the relative weight to be given to these planning instruments, I note that one of the objectives of the 2B zone is to encourage redevelopment of low density housing forms including multi unit housing where the amenity of the surrounding area is not compromised. 18In this regard, I have given particular consideration to the existing approval granted by council for the 14 townhouses on the major part of the subject land. Whilst it is of a different orientation, nevertheless it is of a medium density form apparently considered acceptable by council. Consequently, the expanded 19 - unit development now proposed on the larger area of land includes all of the characteristics included in the approved development. 19Insofar as the planners discussed the relative merits of these multi unit developments, I am satisfied to rely on the opinion of Mr Betros that the orientation of the amended proposal is a "better fit" with the character of the existing neighbourhood. It seems to me that the elongated form of the development focuses communal activity on the central internal access way and the building orientation then provides for a minimum 5m setback for the landscaped courtyards to adjoin the existing residential lots. 20It also seems to me that the shape and orientation of the subject land is somewhat different to the neighbouring lots, some of which have various secondary buildings that will effectively mitigate any adverse impacts from the proposed development. 21However an important factor in the approval of this development is that the implementation of the landscaping scheme will enhance the development, the natural environment of the established area and in particular the large communal area at the northern end of the site. The achievement of this outcome will depend on continuing maintenance and therefore Condition 107 has been expanded to require the property owner/owners to provide regular certification to council of the progress to maturity of the landscaping scheme for a 10 year period. 22For these reasons, I am satisfied that the amended proposal reasonably satisfies the relevant controls in the prevailing PLEP 2001 to merit consent. In reaching this conclusion, I have considered the potential impacts of the existing 14 unit consent, and consequently consider the approval of the subject application achieves a preferable community outcome and represents more orderly development of the land.

Court orders 23The Court orders that: (1)The appeal is allowed. (2)Development consent is granted for the erection of a 19 multi unit development at 25 and 27 Dixmude Street, South Granville subject to the conditions in Annexure A. (3)The exhibits may be returned except 1, 15, 16, Z, DD and EE. R Hussey Commissioner of the Court ANNEXURE 'A' 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