Should development consent be granted?
81Both parties agree that the development to be found on the site is "remarkable" in terms of its built form. It is clear that the Environmental Planning and Assessment Act 1979 (the Act) contemplates the determination of a development application involving works that have been carried out in breach of that Act. Section 124 provides for that to occur. This is made clear by Jago J in Sahade v The Owners - Strata plan No. 62022 & Ors [2006] NSWLEC 770 where her Honour states:
10 In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.
82The path described in Sahade is the precise path the applicant has taken in these proceedings and I have regard to the fact that the council has also commenced proceedings under Class 4 of the Land and Environment Court Act 1979 (the LECAct) as detailed at [6] and it is also open to it to take further action in relation to the unauthorised works should it deem appropriate. In this case, it is important to consider the merits of the application and not consider the legal implications of that work having been undertaken. That is a matter for another day and is made clear by Bignold J in Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276 where his Honour at [115 to 117] states:
115. The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, (decided 20 years later) was next noted, with citation of an extended passage from the judgment of King CJ at 323-324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning):
Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions.
116. In Ireland I noted (at par 87) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing (i) planning appeals, (ii) building appeals, (iii) demolition order appeals and (iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court, and its absence may go far in explaining the decision in Ellmoos).
117. I adhere to the views expressed in Ireland, noting that I did not understand the Council in the present proceedings to question those views.
83The contentions in relation to the development application require an assessment of whether the proposal as constructed is acceptable in terms of heritage impact, parking, and planning and urban design, in particular internal and external amenity.
84From the evidence provided, it is apparent that in its determination of the original application, the council granted concessions to the applicant in terms of parking and setbacks to reflect the heritage constraints of the property whilst allowing a built form that it considered did not have unreasonable impacts on the heritage item, Wingello.
85Having had the benefit of a site view and heard the evidence from the heritage experts, I prefer the evidence of Mr McDonald that the height, bulk and scale of the additional storey on each of the residential flat buildings has a negative impact on the setting of Wingello. In addition, the extent of the driveway and carparking areas, the loss of compensatory landscaping adjacent to the northern site boundary and in front of the three parking spaces to the east of that dwelling and the impacts of the above ground detention basin detract from the setting of that heritage item to an unreasonable extent. The suggestion of Mr Patch to change the colours or the upper floor, whilst having some merit, would not sufficiently mitigate the significant and detrimental impact of that additional storey. Similarly, I do not accept that the application of a stencilled pattern to the expansive driveway and car parking areas would satisfactorily address the adverse impacts of those areas.
86I do not accept the submission of Mr Hemmings that because the aesthetic significance of Wingello is not included on the heritage inventory sheet for the item that it's listing is not about the building's appearance and setting. I reject that and consider that the appearance is relevant in terms of the building having been larger than what was characteristic at the time of its construction and therefore, it is an important consideration. So too is its setting and the means of addressing the on-site detention for the site is not appropriate and should be underground or alternately, located behind the heritage item.
87I agree that the bedroom added to Wingello should be deleted and accept the opinion of the heritage experts that the additions to the upper level of the new dwelling could be retained.
88As stated in [84] the council had consented to a non-complaint and reduced setback to the residential flat buildings, both in terms of side boundaries and between those buildings. The addition of the third storey to those buildings is not considered appropriate in terms of the bulk and scale of that building and the proximity of the upper level balconies to the side and rear boundaries. I accept the fact that the council approved the first floor balconies on a similar alignment however, the increased height also increases the impact of overlooking and privacy impacts to adjoining properties. I accept the opinion of Mr Delapierre that the reduced balcony width is also inappropriate for the upper level units, particularly because of the reduction in size of the secondary balconies adjacent to the bedrooms of those units and the location and design of the common open space/detention basin.
89I agree with Mr Byrnes that the floor to ceiling heights of the units provides an acceptable level of amenity and that the floor area of the units is sufficient to accommodate the reasonable storage needs of occupants of the upper floor units and that a small shed should be provided within the courtyards of the lower units. I also agree that it is appropriate to provide a range of dwelling sizes and unit mix and this is not the case with the development proposed.
90Whilst Mr Cody has attempted to define the parking needs for the site and demonstrate that sufficient parking is provided, I do not accept the approach adopted, particularly having regard to census data that applies to the whole of the Parramatta LGA rather than the locality and the reliance on a survey conducted by the owner of the site with regard to car ownership and on-street parking. It is apparent that the site is within an area undergoing transition from low density housing to higher density residential and accordingly, it is appropriate that all developments provide for their individual parking needs on site as anticipated by the council's planning controls. Whilst I accept Mr Cody's evidence that the spaces proposed are accessible, I am not satisfied that there is any reason to vary those numerical controls for parking any more than the Council had done in its original determination of the application and find that a deficiency of 10 spaces is unacceptable.
91After consideration of the evidence, the LEP, the DCP, the oral submissions of the parties and the relevant matters in s 79 C of the EP&A Act, including the DCP which is a focal point of my consideration, it is apparent that the built form on the site is not acceptable in terms of impacts on the heritage item Wingello and when assessed on merit. For those reasons, the application should be refused. In view of these findings it is not necessary that I determine whether the provisions of SEPP65 apply to the application.