Marco De Rossi v Parramatta City Council [2006] NSWLEC 13 | Case summary

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Parramatta City Council's refusal of a development application for a multi-unit development at the property known as 36 Caloola Road, Wentworthville. 2 The subject site is located on the western side of Caloola Road, between Geoffrey Street to the north and Boonah Street to the south. Refer to the locality plan at figure 1. The site has a frontage to Caloola Road of 18.3 m with side boundaries of approximately 36.6 m yielding a site area of 648.3 sq m. Currently on the subject site there is a single storey weatherboard dwelling with ancillary structures including a garage and shed. The topography is relatively even. 3 At the rear of the site there is a large well vegetated area of land that has access from a laneway adjoining the southern boundary of the adjoining property at No. 34 Caloola Road that has a large two storey brick dwelling house of a more recent period than the older stock of dwellings in the street. 4 To the north of the site there is a single storey detached dwelling with a carport and detached garage adjacent to the common boundary. The area generally is characterised by a mixture of dwelling forms ranging from single storey cottages, two storey masonry dwellings with a scattering of villa and town house style multi-unit development. However, the predominant character is detached single storey and two dwelling houses, and on the western side of the street in the block of the subject site there are mainly single storey dwellings. 5 At the rear of the site there is a multi-unit townhouse development located approximately 5 m from the rear boundary of the subject site. This multi-unit development is served by an access handle from Caloola Road. Diagonally opposite the subject site there is a federation era dwelling house. 6 The proposal is for the demolition of the existing dwelling and structures and the erection of a two storey multi-unit development containing three dwellings over a level of basement parking. The site plan is attached as figure 2. 7 The planning regime for the subject site is as follows: 8 Under the Parramatta Local Environmental Plan 2001, the site is zoned Residential 2(a) and the zone objectives are: (a) To enhance the amenity and characteristics of the established residential area; (b) To encourage redevelopment of low density housing forms, including dual occupancy development, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural of the area and (c) To ensure the building form including that of alterations and addition is in character of the surrounding built environment … 9 Permissible uses in the zone include dual occupancies, dwelling houses, granny flats, housing for older people or with people with a disability. 10 Amendment No. 11 to the LEP contains a savings provision that enables council to determine the application despite the rezoning of the land from 2B to 2A. 11 The subject site and the surrounding area was down-zoned from Residential 2B to Residential 2A on the 26 March 2004 by an amendment to the Local Environmental Plan 2001 known as Amendment No. 11 - Old Toongabbie/Wentworthville. The 2B zone allows for multi-unit dwellings as shown in the Development Application. However, the 2A zone prohibits multi-unit development. Amendment No. 11 contains a savings provision at cl 5 and reads as follows: "a development application lodged but not finally determined before the commencement of this plan in relation to land which this plan applies is to be determined as if the plan has not been made". 12 Having regard to the rezoning and the savings provision it is also of interest to look at the zone objectives for 2B. For the 2B zone the objectives are: (a) to enhance the amenity and characteristics of the established residential area; (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 … is in character with the surrounding built environment … 13 Multi-unit housing is defined in the LEP as: "three or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling …". Dual occupancy means "two separate self-contained dwellings on a single allotment of land". 14 Clause 16(3) states that : "consent must not be granted …unless… the carrying out of the development is consistent with the objectives of the zone …" 15 The Parramatta Development Control Plan 2001 provides guidelines for development in the Parramatta City Council area. Section 4 .3.1 considers amenity issues of visual and acoustic privacy, safety and security, public domain, vehicular access and parking access. For visual privacy the DCP states that "direct overlooking of habitable rooms and private open space of other dwellings is to be minimised through building layout, the location and design of windows and balconies and screening devices, including landscaping". 16 The design solutions and controls for basement parking are that it should be located under the building footprint and project no more than 1200 mm above natural ground level. 17 For views and vistas the objective is to ensure that significant view corridors are protected from development and to minimise view loss to adjoining buildings while providing opportunities for views from the development. 18 Section 4.4 includes a number of design elements in particular the streetscape objectives include: o Complement and conserve the visual character of the street and neighbourhood through appropriate building scale form detail and finish o Reinforce or sensitively relate to existing streetscape features such building setbacks, alignments, heights, landscaping, vegetation and fence design.

19 The performance criteria for building siting include buildings are sited to maximise surveillance of the street from the dwelling, retain remnant vegetation at the rear of the site, maximise the distance between the front and the rear buildings, minimise the opportunity for noise, maximise the opportunity for privacy, maximise the opportunity to plant significant 20 The DCP provides performance criteria and design solutions for building form objectives to ensure that development provides an acceptable built form. The aim of built form controls is "to ensure that the proposed development is of an appropriate scale to protect and enhance desirable aspects of the existing local character whilst reflecting the desired future character of the area as determined. Built form controls provide council and the community with more certainty of the future form of a local area and developers and the community with more certainty. The bulk and scale of new housing has significant impact on neighbourhood character. Setbacks, footprint controls, floor space ratio and height are critical controls, which define building envelopes". 21 For multi-unit housing, the maximum heights of the building is two storeys and the maximum building depth is 14 m. The minimum frontage for multi-unit housing and terrace development is 18 m and the windows of habitable rooms are to face the front and rear. The front building setback should relate to the adjacent setbacks and be a minimum of 5 m and a maximum of 9 m with the rear setback giving a minimum of 15% of the site for a soft soil zone. 22 The provisions in the DCP relating to dual occupancy require that attached dual occupancy development must be in the form of paired housing at the front of the site with the rear setback 30% of the length of the site and for detached dual occupancy the second building to the rear and facing the secondary street name the maximum is one store with additional accommodation within the roof space and the minimum separation distance between the two dwellings is 12 m. 23 The council prepared a Statement of Issues and the principal contested issues in the proceedings are whether the proposed development is consistent with the 2A Residential zone objectives; whether the proposed development will have adverse impacts on the adjoining properties; and the design of the basement parking is not located under the building footprint;. Amended plans were submitted following the lodgement of the appeal and these satisfied some of the other issues raised. 24 Evidence was given to the Court on behalf of the council by Mr A Bas, council town planning officer. On behalf of the applicant, Mr P North, architect, gave evidence. 25 When the Court carried out a site inspection evidence was given by Ms Dilles and her parents who reside at the adjoining property at No. 34. Ms Dilles expressed concern about the impact of the proposed development on the amenity of their rear terraces and backyard and the fact that the proposal will represent a bulky building with limited setback on their common northern boundary. The council's bundle also contains a number of submissions including letters of objection from the owners of no. 34 Caloola Road, the property on the northern boundary of the subject site. 26 Following the conclusion of the hearing the applicant Ms De Rossi requested the matter be reopened to provide additional evidence in the form of photographs of development in the surrounding streets. In the interests of justice and fairness, I made the unusual decision to allow the matter to be reopened to ensure the applicant was not prejudiced. 27 Apart from the weight to be given to the rezoning and the savings provision, that I discuss later in this judgment, I have assessed the merits of the application and the impacts of the proposal on the adjacent development and the area. 28 The applicant referred to the development opposite at no. 43 with a site area of 1053square metres where the council in June 2005 approved an amended application from 5 to 4 townhouses over basement parking, that is one dwelling per 263 m2. The length of the site is some 45 m with two x two storey buildings located on the site separated by a small gap but clearly reading as two separate building forms. A 7 m setback is provided from the front and rear boundaries with a similar setback to both side boundaries. 29 The above development at no 43 was cited as similar to the proposal, however, the size of the site affords greater setbacks and a lower density than the application before me. From the locality plan attached to the assessment report of no. 43 it can be seen that the multi-unit developments, both existing and approved, are on larger parcels of land than the subject application. 30 While not raised as an issue during the proceedings the gradient for the steepest section of the driveway has a height/RL difference of some two metres over a length of five metres. This can be seen on the south elevation plan at figure 3. This gradient is much greater than the 1:4 grade stated on the Level 1 plan. The steepness of this section of the driveway ramp would be impracticable and this is indicative of the difficulties of providing full basement parking on a site of this size while generally containing it within the building footprint. This miscalculation in the plans is regrettable for the applicant but the development also fails on other merit grounds. That is, because of its adverse impacts on adjoining properties in terms of a 25m building length and the bulk with an inadequate setback at the rear to the adjacent dwelling to the south at no.34. 31 The development control plan at section 5.5 contains a number of design elements for multi-unit housing on sites with an east-west orientation. And to maintain block principles one of these is that the side setbacks be a minimum 6 metres. The single storey element of the proposal is 1.5 metres from the southern boundary and this element extends beyond number 34 Caloola Road for some 7 metres. This impact is exacerbated because of the juxtaposition of this element with the location of the rear balconies, in particular the one adjoining the living area at the ground floor. In my assessment even though there are no windows to create an overlooking/ privacy concern this represents an inappropriate relationship between the dwellings. This portion of unit 3 will have an adverse visual impact in terms of the proximate bulk and extension into the rear part of the site when viewed from no. 34. Refer to the site plan at figure 2. 32 The evidence presented on behalf of the respondent has persuaded me that the proposal is not well mannered in its relationship to the adjoining dwelling and the DCP requirement for a 6m separation in the rear part of the site is even more critical in the circumstances of this case to maintain residential amenity. For this reason alone the application would fail on its merits. In my assessment I must give the DCP proper and genuine consideration consistent with the Court of Appeal judgment in Zhang v Canterbury City Council [2001] NSWCA167 wherein the Chief Justice states at paras57 and 77: The consent authority has a wide ranging discretion - one of the matters required to be taken into account is 'the public interest' - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process. A provision so directly pertinent to the application for consent before the Council… was entitled to significant weight in the decision making process but was not, of course, determinative. There was a relevant and applicable "standard" which he was obliged to "take into consideration". It ought to have served as a focal point for, or constituted a fundamental element in, his deliberations. … 33 Turning now to the issue of consistency with the objectives of the residential 2A zone. I reject the submission and evidence given on behalf of the applicant that the savings provision renders the provisions of the rezoning irrelevant or of little weight. Mr Gough referred the Court to a number of judgments in this matter, including that of the Court of Appeal in Terrace Towers Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289. In this judgment the Chief Justice, Spigelman states at paras 5-7: 5. Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft. 6 Notwithstanding "certainty and imminence", a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will 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… 34 The objectives of the 2A zone are cited above at par 8. The proposed development in my assessment would be inconsistent and antipathetic to these objectives. I have concluded that the proposal would not result in a building form that is in character with the surrounding built environment and the proposal would compromise the amenity of the surrounding residential area. While the streetscape presentation of the proposal would not be in sympathy with the future desired character, this is only one component of the character of the area which also includes the building mass not encroaching into the rear yard as the current proposal exhibits. 35 I can understand how the applicant may feel aggrieved given that the original development application was submitted to the council in December 2002 and has undergone a number of amendments. However, even if the amendment had not been gazetted, or indeed a draft plan had not been exhibited, in terms of the 2B zone the proposal would still fail in my assessment to satisfy objectives (b) and (c) as cited above. 36 While there are some multiunit developments in the locality, and others more recently approved, (as shown on the locality plan at figure1) this would not justify approval of the proposal given the adverse impact on the adjoining residence and the inconsistency with the objectives of the residential zone. Furthermore, the size and configuration of the mult-unit allotments are considerably larger and the subject site in my assessment under s79C (1)(c) is not suitable for multi-unit development. 37 I also reject the evidence for the applicant that "approval would not create a precedent because the land is now rezoned and no further applications for multi-unit development can be made". However, on the basis of my assessment and the weight that I must give to the gazetted amendment the proposal would be an aberration in the context of the residential 'A' zone and inconsistent with the existing and desired future character of the area. 38 Accordingly, on the basis of my assessment above, the Orders of Court are: 1. The appeal in respect of the property known as 36 Caloola Road, Wentworthville, is dismissed.

Marco De Rossi v Parramatta City Council

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Judgment (13 paragraphs)

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Cases Cited (2)