Damelian Automobile Limited v Leichhardt Municipal Council

CASES CITED: Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

DATES OF HEARING: 29/03/2007 and 30/03/2007

APPLICANT Ms A. Bowen, solicitor of Shaw Reynolds, Bowen and Gerathy LEGAL REPRESENTATIVES:

RESPONDENT Ms J. Reid, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10788 of 2006 Damelian Automobile Limited v Leichhardt Municipal Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Leichhardt Council's refusal of a development application for the premises known as 573-577 Parramatta Road, and for alterations and additions to the premises 565-571 Parramatta Road.

2 By way of background, when the appeal was lodged with the Court it was by way of a deemed refusal. Subsequent to that time the council has formally determined the application and numerous reasons were identified in the refusal. These reasons included the issue of heritage because the buildings, or some of the buildings, were of inter-war warehouse period and it was considered they should be conserved. Another reason for refusal was the impact of the proposed development on the conservation area at the rear commencing at the laneway, that is the common boundary of the subject site, known as Easter Street and extending to Albert Street. This conservation area has mainly semi-detached houses although there were some single dwellings also within the area.

3 The council also identified a number of other issues in terms of the amenity of residents and the noise, privacy, traffic impacts, lighting and other such residential amenity impacts that would be incurred by the approval of the subject development application.

4 Council also noted in its refusal that the proposed development was excessive and intrusive in terms of its height, bulk and scale, being at an FSR at that time nearly double the 1:1 contained within the Leichhardt LEP. It was also noted that the height of the building is some 900 mm higher than the existing building at the highest point and on an average some three and a half metres higher than the predominant height of the buildings proposed to be demolished on the site. Council also identified that vehicle access to Parramatta Road was unsatisfactory.

5 The proposed development has the effect of a continuation of the building to the east in terms of its presentation to Parramatta Road. As such this development application, while assessed on its own merits, is considered in its context of the adjoining premises to the east that are also operated under the banner of the Damelian Automobile showrooms which encompasses a number of different car manufacturers. The beginning of the Rick Damelian showrooms commences at Elswick Street and over the last few years there have been a number of development applications submitted to the council and approved for the glass showrooms that we see along Parramatta Road today. The proposal for this site is to be an extension of the same design of showrooms.

6 The Court conducted an on site hearing yesterday and asked the parties to provide further details with respect to previous applications and approvals and the respondent has done so. The applicant has also been given the opportunity of copy.

7 For the Court record, there are a number objectors to the proposal that gave evidence on site. Mr and Mrs Smith of 42 Albert Street, on the south-western corner of Albert and National Streets submitted a written objection to the proposal when it was advertised.. They expressed concerns about the proposed development in particular the elevation to National Street and the extensive glazing that would allow for overlooking, and privacy concerns from customers within the showroom looking into their rear Courtyard and also into their dwelling house. They also raised concerns about light penetration, signage and car transporters/car carriers being unloaded within the surrounding streets of the subject site, and their concern is that this would be exacerbated if the development was approved.

8 The owner of 6 Albert Street, Mr Prudnyc, expressed concern about the proposed development having unreasonable impacts and, further, impact on amenity in terms of the existing premises. He identified his house as being three down from the Elswick intersection.

9 Mr Dawson of 30 Albert Street, was concerned about the bulk of the building, in particular the corner, which reaches some 13 m, the delivery of cars to the site and the car carriers within the area.

10 Mrs Balsamo of 40 Albert Street, is concerned about the lights and the impact on her residential amenity. She indicated that there had been shades provided over the street lights to reduce glare. She was concerned about the semi-trailers and also in terms of the damage to her property in particular her garage at the rear that adjoins Easter Street with the unloading of vehicles from car carriers.

11 Mr Sclippa of 36 Albert Street, was also concerned about the cars along Easter Street and the garages, which are often blocked, that service the residential properties facing Albert Street, and the unloading of cars, et cetera.

12 Ms Smith of 38 Albert Street referred to the parking within Albert Street, the overflow parking from the existing premises, and the increased traffic that would be incurred by the proposed development.

13 Mr Garcia of 32 Albert Street, is concerned about the noise and bulk of the building.

14 The Court heard from a number of experts during the proceedings. Mr John Coady, a traffic engineer, provided a Statement of Evidence and also provided oral evidence. Mr Payton provided evidence on behalf of the council and also conferred with Mr Coady in terms of the exit and entrance ramp and its proximity to Easter Street, and also with respect to the access of Parramatta Road. The Court also heard from Mr Stubb, the applicant's engineer, who conferred also with council's engineer regarding stormwater and geotechnical matters. These latter issues are now not at issue in terms of appropriate conditions agreed between the parties.

15 The Court also had the benefit of evidence from Mr Turissi, who provided evidence to the Court in a Statement of Evidence and the SEPP 1 objection for the exceedence in the floor space ratio. The Court also had the benefit of the applicant's architect, Mr Trevor Jones.

16 The council's issues are largely as I have already indicated in terms of its reasons for refusal. The heritage and conservation area are no longer issues. It is noted that Mr Robert Staas provided a report and Mr Robert Staas considers that there is no impact on the conservation area by the proposed development. He has also indicated that there is no need or rather that the existing buildings on the subject site do not warrant retention and as such this is also no longer an issue in the proceedings.

17 The main issue therefore became the bulk and scale of the proposed building, the excessive floor space ratio, vehicle impacts and traffic, the issues of the objectors in terms of noise, unloading, privacy, and adverse impacts on the amenity of the residential area. Additional information has been provided to the council to satisfy it in terms of the other issues that were initially raised in the proceedings.

18 The subject site is covered by the Leichhardt town plan, Leichhardt Local Environmental Plan 2000, and Development Control Plan 2000. The site is zoned industrial and the land use objectives in the LEP are in cl 7 and consent shall not be granted unless the consent authority has taken into consideration the objectives of the plan, and the development is consistent with those objectives.

19 The employment provisions are such that the objectives in particular (d) is to ensure that buildings to be used for employment are appropriately located and designed to minimise the generation of noise, traffic, car parking, waste pollution and other adverse impacts, to maintain the amenity of surrounding land uses and avoid harm to the environment.

20 The development is permissible in the zone, it being a car showroom, and business purposes or commercial purposes and industrial purposes are permissible with consent.

21 The relevant provision for amenity in the DCP defines amenity in terms of sunlight, privacy and views, residential and community life, free from nuisance arising from the emission of noise, vibration, smell, fumes, smoke, vapour, et cetera, and reasonable amenity should be ensured to future occupants of new developments and maintained to residents in their existing homes.

22 The subject site is also located within the Hampton Farm area and what is referred to as the 'West Leichhardt Distinctive Neighbourhood Area'. The subject site is on the southern part of this particular neighbourhood area. The desired future character as contained in the DCP is "to promote land uses and urban design that enhance and contribute to the character and identity of the neighbourhood whilst protecting heritage items and conservation areas that combine to help create that character, to preserve and enhance the predominant scale and character of dwellings".

23 The DCP contains a provision that the maximum building wall height of 6 m applies within the industrial business areas. There is also a requirement with respect to signage, however, it is noted the subject development application does not contain signage and will be the subject of future applications.

24 The proposed development is for a two level showroom with rooftop parking which would accommodate the storage of vehicles for the subject premises and basement parking. The development application has a floor space ratio of 1.84:1. As such a SEPP 1 objection is required in respect of the exceedence in the floor space ratio for clause cl 23(2) of the Leichhardt LEP.

25 Mr Turissi provided in his statement of evidence a SEPP 1 objection. He agreed, whilst not contained within his SEPP 1 objection, that the bulk, height and scale were the underlying objectives of such a control, and there was also reference by the respondent to the various objectives contained within its instruments. The bulk, height and scale is clearly a matter that the floor space ratio, although not on its own, seeks to provide guidance on, and the exceedence must be looked at in terms of the decision by his Honour Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. This judgment sets out a number of questions for the proper assessment of variations sought in a SEPP 1 objection. This firstly requires the identification of the underlying purpose if it is not contained within the LEP, or the overt objective if stated of such a standard. One can seek guidance from the instruments, but at the end of the day one must identify the underlying purpose of the standard itself.

26 The Court has the ability to have regard to all the evidence to the Court, even though on this occasion the SEPP 1 objection failed to identify the underlying purpose/ objective of the standard. A justification that it is consistent with other development along Parramatta Road in itself is not justification for an exceedence of the floor space ratio standard as contained in the LEP.

27 The Court does not consider that the built form of the development application as submitted would allow for a variation. However, during the proceedings yesterday it was agreed to by the applicant to remove the 2 m high parapet from that portion of National Street above what will be the solid masonry wall. It was agreed this wall be extended some 10 m from the boundary on National Street from Easter Street to reduce the bulk of the subject building and its height at that point. In terms of stepping with the topography and reducing impacts to an acceptable level for the residential properties with frontage to Albert Street and rear boundaries to Easter Street. Similarly the Court is of the opinion that the 2 m parapet for the entire length of the Easter Street elevation should be set back 2 m. The importance of the setting back of the parapet is that the building will then be some 10.5 m in height on the corner of National and Easter Street, rather than 12.5 m, and for its eastern most point of that wall in Easter Street it will be some 8 m in height. This is necessary because of the interface with the residential conservation area. The objectors raised concerns about the bulk of the building and the Court had the opportunity of standing in the rear yards of the residential properties adjoining Easter Street with frontage to Albert Street in assessing the impacts of the proposal on these properties.

28 In assessing the application it is important to have regard to the residential amenity of the adjacent conservation area. And I must have regard to the underlying objectives or purpose of the FSR standard, that is to address height, bulk and scale, and this requires the reduction for the entire length of Easter Street with a 10 m return along National Street. This is not onerous for the applicant in terms of the functionality of the proposal as there is already significant parking for vehicles on the open rooftop and this must remain with no roof to ensure no further increase in the height of the building and a condition shall be attached in this regard. The visual amenity for the properties fronting Albert Street in terms of the bulk of this proposal as it presents to Easter Street and their rear boundaries must be considered. .It is important that consideration be given for the sustainability of the dwellings on Albert Street and consideration to the continued amenity for those dwellings in a conservation area.

29 The interface of a zone must be carefully considered, and there are a number of judgments within this Court in terms of special consideration or rather the heightened sensitivity that often occurs at the interface of zones. In particular between commercial/industrial and residential zones. In my assessment reducing the height of the parapet will provide for a development with reduced impact than shown in the application and in my assessment with the amendments this would be a satisfactory relationship at this zone interface.

30 The other issues that the Court must determine are with respect to the glazing and the extent of the masonry wall along National Street. I have examined the plans in Exhibit 6 approved by the council for 42 Albert Street, and I note that there is an awning on the rear of the dwelling external to the dining room area and this would provide some protection. Mr and Mrs Smith have concerns about privacy/overlooking to the rear room, however in my assessment, even in the absence of an awning, I am satisfied that the separation distance with the masonry wall extended to some 10 m from the site boundary, is appropriate. This provides for separation distances well in excess of the accepted standard of 9 m window to window, this being some 27 m, and I am satisfied that the potential for overlooking would is limited and would not require a further extension of the masonry wall than that now agreed to by the applicant. I say this with the benefit sight lines provided by Mr Turissi and on the basis of the separation distances and I am satisfied that the proposal with the 10m masonry wall willl not unreasonably impact on the residential amenity of No. 42.

31 The other issues the council raised are with respect to the vehicle driveway entrance off Parramatta Road. I am not persuaded by the applicant's evidence that the Parramatta Road opening should be allowed to remain. I am of the opinion that given this is a corner site with the side street of National Street that access should be gained from National Street to service the basement parking and the showroom. The subject site is therefore distinguishable from its neighbour where a vehicle access crossing was approved to Parramatta Road, however that site did not have the benefit of a side street as the development application before me does.

32 Also, I note that during the proceedings it was agreed to by the applicant that the entrance/exit arrangement for the basement parking provided off National Street be moved further from the corner such that it is in excess of 6 m from the corner of Easter Street. I also note this also provides for access to the vehicle display area and it would not warrant an additional ramp or an additional entrance to National Street by the deletion of the Parramatta Road access. Therefore I do not accept the submission made on behalf of the applicant that there is additional expense to the applicant in the construction of a vehicle access form National Street for showroom vehicles.

33 The conditions proposed are generally agreed to between the parties. Clearly there will have to be further amendments to the conditions to reflect what the future plans show and so that will not be required until after the plans are prepared and submitted. The condition in contention is 4A that is where the council require: "The applicant is to advise council of its proposed arrangement for the delivery of vehicles including the departure point within Sydney and mode of transport to this site".

34 Before judgment this afternoon I indicated to the parties that I think appropriate signage should be painted/fixed to the walls of Easter Street on the applicant's own property. In this regard I consider that with conditions 47A and 60 that condition 4A is not necessary. The functionality of the streets is important for residential amenity and to ensure the ability for persons to access their garages along Easter Street and loading and unloading is not satisfactory in the vicinity of the site by car carriers/car transporters. This should be made clear by a condition on the consent for appropriate signage along the Easter Street wall of the development. Such a condition on the consent would run with the land.

35 The other conditions are as generally agreed to between the parties.

36 I am satisfied the development is capable of approval subject to an amended plan to show details of a splay corner for the north-eastern corner of National Street and Parramatta Road, deletion of the Parramatta Road vehicle entry, the 2 m reduction in the parapet.

37 For clarity of what is required for an amended plan this is to be submitted to the Court within 14 days, the applicant's architect or the applicant is to cause to have prepared amended plans to show a splay on the National/Parramatta Road corner such that it should be a minimum of 2 m for a length of each boundary and this would allow a design feature to punctuate the corner. It will be a matter for the applicant whether the splay is continued for the entire height of the building in that the rooftop car park above may remain without the splay being continued up. This is a matter for detail and a matter between the parties before the plan comes back to the Court. Clearly the floor space will be also be marginally reduced. However, the primary purpose is to provide continued visibility at the corner of National Street and Parramatta Road (as provided by the existing building) and to define/emphasize the corner with a splay.

38 Another requirement is that the access off Parramatta Road be deleted and the vehicles for the showroom would then only utilise the access point which has now been the subject of the amendment agreed to yesterday in plan 1F.

39 The plans are also to show the parapet setback 2 m for the entire length of the Easter Street elevation and the parapet on the return setback to National Street for the 10 m masonry portion of the building.

40 There was some discussion yesterday about the intensity of the colour of the wall on the Easter Street elevation and whether a lighter shade would be less intrusive on the upper part. That will be a matter for the applicant to submit some further details as to whether the transition sets in at 4 or 5 m from the ground for the darker portion and whether it be some form of grey or lighter tone above. The purpose to ensure the wall is not overwhelming in terms of the residents' outlook from properties on Albert Street. 41 Following the submission of the amended plans to be filed and served, council should be given the opportunity to consider the amendments accord with my judgment above. The conditions to reflect my determination, and as generally agreed to between the parties, shall provide for the amended plan numbers, et cetera, to be forwarded within one week together with any comments that council may have on the amended plans if they do not consider it accords with my judgment.

42 In terms of the corner punctuation, it may be that the architect takes the opportunity to place an awning on that corner. It is not a matter for the Court to design or interfere with the architectural integrity of the building, but clearly such details will be provided. The Court is not imposing an awning along the frontage of Parramatta Road, although awnings are often a desired urban design outcome. I understand that that would not be consistent with the philosophy of the showrooms as we see them today.

43 In terms of the timing then for the plans, two weeks from today would be 20 April, and the conditions forwarded to the Court with comments by 27 April. 44 I need to formally address that the SEPP 1 objection in the light of the evidence to the Court and in light of the amendments required and discussed, I am of the opinion that the SEPP 1 objection having regard to the underlying objectives of bulk, scale and height, would be satisfied with the amended plans and the SEPP 1 objection should be allowed in the circumstances of this case.

45 The formal Orders of the Court on the receipt of both the amended plans and the conditions will be: 1. The appeal in respect of the properties known as 573-577 and 565-571, alterations and additions, be upheld. 2. The development application submitted to Leichhardt Council and as amended for demolition of the existing buildings on the site known as 573-577 and the erection of a new car showroom and the alterations and additions to the parapet for 565-571 Parramatta Road is approved subject to the deferred commence conditions and the conditions contained in Annexure 'A'. 3. The other exhibits are returned to the parties with the exception of the amended plans and the amended conditions.

      J S Murrell
      Commissioner of the Court
      ljr

28/06/2007 - Changed PRELIMIANRY FINDINGS to JUDGMENT - Paragraph(s) Before paragraph No. 1

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.