Mark Makhoul v Parramatta City Council

CASES CITED: Mark Makhoul v Parramatta City Council [2006] NSWLEC 386; Tenacity Consulting v Warringah Council [2004] NSWLEC 140

APPLICANT Mr M Arch (solicitor) SOLICITORS Concordia Pacific LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz (solicitor) SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: Introduction 1 This is an application for development consent to erect a residential flat building comprising nine units and associated car-parking on premises known as 22 Robert Street, Telopea. The premises are zoned Residential 2(c) under the Parramatta Local Environmental Plan 2001 (the "LEP"). The land adjoining the property to the west is zoned Environment Protection 7.

2 The land to the west has a creek line running through it and is heavily vegetated, albeit with some weed infestation on the western side of the creek. According to the statement of basic facts that has been tendered in the proceedings, the premises comprise lot 3 in deposited plan 38302. The lot is rectangular in shape. The front and rear boundaries have a length of approximately 15.2 metres. The eastern and western side boundaries have a length of approximately 79.2 metres. The lot has an area of 1208 square metres. The lot slopes with an approximate 5.7 metre fall from the front to the rear. The properties to the east and south are medium density developments. There is one existing dwelling and a significant number of existing trees that contribute to the landscape setting of the area on the lot at present.

3 The development application as originally lodged proposed what was described as a residential flat building comprising four storeys, primarily because the car park area was more than 1.2 metres clear of the natural ground level. That original development application generated significant objection from local residents, their letters being contained behind tab E and F of the Council's bundle of documents.

4 As a consequence of the four storey nature of the development, the Council raised an issue in the proceedings that the proposed development was prohibited pursuant to the LEP, given the definition of "residential flat building". I determined that issue in a separate hearing and upheld the Council's submissions (Mark Makhoul v Parramatta City Council [2006] NSWLEC 386). Thereafter, the applicant amended the development application on more than one occasion in order to reduce the overall number of storeys of the development and ensure its characterisation under the LEP as a residential flat building, having regard to my reasons for decision and to address various issues of concern that had been raised by Ms Laidlaw, whom the parties had agreed should be appointed as the single expert planner in these proceedings.

5 Ms Laidlaw provided a statement of evidence that has become exhibit 4 in the proceedings. That statement identifies the relevant planning controls and otherwise assesses the development application in its form as it was prior to amendment following my earlier decision. Ms Laidlaw provided a supplementary statement of evidence, which has become exhibit 6 in the proceedings and further comments on 29 August 2006, which has become exhibit 7 in the proceedings.

6 The applicant apparently considered Ms Laidlaw's observations in exhibits 6 and 7, and took two steps to address the outstanding issues Ms Laidlaw identified. First, the applicant provided to the Council yesterday two stormwater drainage plans, which have become exhibit C in the proceedings. The effect of these plans is to remove the need for an easement to be obtained over the adjoining land zoned Environment Protection 7. As a consequence, the Council no longer pressed the issue it had raised about that easement in the proceedings. Secondly, the applicant prepared a further set of amended plans, which has become exhibit D in these proceedings. These plans incorporated further amendments seeking to address the issues which Ms Laidlaw had raised, in particular by reinstating the planter to the western boundary of the development so as to ensure that the existence of the ground level car-parking area did not make the development present as unduly high and bulky to the western boundary, but rather as a two-storey development above a retaining wall. The exhibit D amended plans also reduced the highest point of the roof by some 800 millimetres and otherwise made consequential amendments to reduce and remove certain environmental impacts of the development that Ms Laidlaw had identified. Those amended plans were provided to the Council this morning. The amended plans caused a fundamental change of position on the part of both Ms Laidlaw and the Council.

7 Ms Laidlaw gave evidence before me in which she expressed the opinion that the exhibit D amended plans meant that the development as proposed was appropriate for this site. Ms Laidlaw recognised that the development still required the upholding of two objections under State Environmental Planning Policy No 1 ("SEPP 1"), being objections to the floor space ratio and side setback development standards contained in the LEP. Ms Laidlaw said that, in the particular circumstances of the case, and having regard to the location of the site, the fact that it could not physically be amalgamated with any other site, and that the development was of an interesting and good design and did not, in her view, have unacceptable environmental impacts, the SEPP 1 objections ought to be upheld.

8 The Council, for its part, also informed me that on the basis of the exhibit D amended plans it had reached the same conclusion as Ms Laidlaw - that there was no reason why development consent should not be granted to this development application, and the objections under SEPP 1 upheld. As a consequence, the Council raised no issues in the proceedings, but facilitated me inspecting the site as I have done today and hearing from a number of residents who were shown the exhibit D amended plans prior to my arrival on site by the Council, assisted by Ms Laidlaw. These residents mainly lived in the adjoining development to the east, known as 18-20 Robert Street, Telopea, but included one resident from 10-14 Robert Street, Telopea.

9 During the site inspection I heard from Mr Hartanto, who owns and occupies the unit 12 at 18-20 Robert Street Telopea, being the unit at the rear of that development. Mr Hartanto raised a number of concerns about the proposal. In particular, he said that the balcony at the rear of the subject development raised a privacy concern. Ms Laidlaw noted that the balcony was from a bedroom not a main living area, that it was 1.2 metres wide and, would not be used for entertainment purposes, being intended to increase the size of the bedroom. The balcony was also some 7.5 metres to 12 metres from Mr Hartanto's balcony courtyard area. Nevertheless Ms Laidlaw recommended, and the applicant accepted, that louvred privacy screens should be placed around the balcony for a distance of a half a metre in order to ensure that the view line from the balcony was not directly towards Mr Hartanto's courtyard balcony area. In Ms Laidlaw's opinion, an additional condition to this effect represented a reasonable compromise. Mr Hartanto also accepted that, provided this occurred, the privacy position would not be unreasonable.

10 Mr Hartanto was concerned about the colours, reflectivity and materials of the eastern wall and roof area. Ms Laidlaw explained on site that conditions had been recommended for imposition on any development consent requiring the building to be in appropriately muted tones, and to ensure that the reflectivity of the materials was not inappropriate.

11 Mr Hartanto raised a concern about the unit on the ground floor and its compliance with safety requirements. The architect of the development explained the various escape routes from the subject development and the Council confirmed that the standard condition requiring the building to comply with the Building Code of Australia would be imposed.

12 Mr Hartanto joined with the other residents who gave evidence before me on site about the serious concern they all held in respect of safety of access and egress during construction and generally, and particularly when the garbage was collected in the street (because apparently on Tuesday nights when the garbage bins are put out to be collected there is no room for parking on the street). Cars are otherwise parked or can be parked on both sides of the street. People tend to drive along the street, according to the residents, sometimes at inappropriately high speed. Because of the grade of the driveway coming from the subject development to the street a real concern was raised about safety and adding to the pressure on what they perceived was already a busy street.

13 Mr Segall, from unit 11, 18-20 Robert Street Telopea, said that he shared Mr Hartanto's concerns, but was also particularly concerned that the subject development was too high. It would block his view to the Environment Protection land which was well vegetated, and would block the breeze and flow of winds from that area. Because the units at 18-20 Robert Street face west they can get very hot, particularly during the summer. Mr Segall also noted the absence of appropriate on street parking and the lack of room for rubbish bin collection.

14 Mr Valentin, of unit 1 18-20 Robert Street, Telopea, emphasised the parking issue. He was of the view that the nine units proposed were simply too many for the subject site by about three to four units.

15 Mr Spence lived at unit 12, 10-14 Robert Street, Telopea. Although he expressed a concern about loss of trees from the front of the site I was informed by both parties that the trees that he identified had already been approved for removal by the Council. Mr Spence, in addition to supporting the concerns of the other resident objectors, queried the potential impacts of construction on the Environment Protection land. The architect for the development identified that a plan setting out sediment controls and other environmental protection controls for that land had been provided with the development application. The applicant said it would accept that a condition should be imposed to ensure that that land was protected from construction impacts during the development. Mr Spence noted the increased number of vehicles using the site both during construction and after and that, because of the location of the site in the dip on Robert Street, there would be increased danger as a consequence of consent being granted to the development.

16 I heard from Ms Jing Tang, at unit 9, 18-20 Robert Street, Telopea, who would lose the view from her balcony to the Environment Protection land, and would be looking at the roof of the development. She too was concerned about traffic and parking safety issues, as well as construction vehicles. She also expressed the view that sunlight to her unit in mid-winter by 3.00pm would be blocked by the development. Ms Laidlaw explained that the shadow diagrams lodged with the original development application (four storeys in height) showed that there was no inappropriate shadow impact from the subject development in mid-winter. On the plans Ms Laidlaw demonstrated that shadow in mid-winter at 3.00pm from the subject building would fall below the living areas of unit 9, and expressed the view that overshadowing was not an issue of concern in her opinion.

17 Under the LEP, the relevant provisions include cl 16, which sets out the zone objectives for the 2(c) zone and provides that residential flat buildings are permissible with consent. In particular, zone objective (a) seeks to encourage a variety of housing types including residential flat buildings where such development does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area. Under cl 16(3) consent must not be granted to the carrying out of development on land to which the LEP applies unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. For reasons that will become apparent, I have formed the opinion that the carrying out of this development is consistent with the relevant zone objectives of the zone, in particular zone objective (a).

18 Otherwise Ms Laidlaw and the Council drew my attention to cl 39, which provides that consent should not be granted to the erection of the building if the height exceeds three storeys above ground level for residential flat buildings. Ms Laidlaw said that the development, as amended, complies with that requirement.

19 Clause 40 is also relevant because it provides that a building must not exceed the floor space ratio indicated in the table where, for residential flat buildings, the maximum floor space ratio is 0.8:1. The subject development does not comply with that development standard and the applicant has lodged an objection under SEPP 1 to that development standard.

20 Clause 47 provides that the consent authority must not grant consent to development on land abutting land within zone 7 unless it has taken into consideration all of the following:- the need to retain any bushland, the effect of the proposed development on bushland including the erosion of soil, siltation of streams and waterways and the spread of weeds and exotic plants within the bushland, overshadowing, overland flows, stormwater runoff, removal or degradation of existing vegetation, requirement for provision of a buffer zone to protect the bushland area, protection of endangered ecological communities and recovery plans prepared and approved under the Threatened Species Conservation Act 1995, and any other matters which are relevant to the protection and preservation of the bushland area. Clause 47(2) provides a further development standard to the effect that despite any other provisions of the plan, no building is to be erected within 6 metres of the boundary of zone 7. The development does not comply with the development standard in cl 47(2) and is accompanied by an objection under SEPP 1 to that standard.

21 Within Parramatta Development Control Plan 2001 ("DCP"), relevant provisions are contained in s 4.3 which relates to general amenity issues; s 4.4 which relates to streetscape, building form and design elements; and s 5.6 which specifically relates to residential flat buildings and relevantly provides that the minimum frontage for a residential flat building is 18 metres. The subject site does not comply with that requirement. It is not possible for the site to be amalgamated with any other land given the zone 7 land on the western boundary and the existing development on the eastern boundary. Section 5.6 also provides for a minimum side setback generally of 1.5 metres. This requirement in the DCP does not derogate from the 6 metre requirement in cl 47(2) of the LEP. Ms Laidlaw noted that s 5.10 of the DCP refers to landlocked sites, being sites that are isolated and unable to be consolidated with adjoining lots because the adjoining lots have already been developed to their potential. The DCP recognised that such sites might be incapable of being developed in full compliance with the numerical design control specified in the DCP and other relevant planning documents applied to the land. As such, development of a landlocked site is to be assessed on a case-by-case basis on merit, having regard to the performance criteria in the DCP the objectives of the appropriate zone and the objectives and design principles of any other relevant planning document.

22 As I have said, there are two objections under SEPP 1. The first relates to the maximum floor space ratio of 0.8:1. The reason that the development does not comply with that standard, as Ms Laidlaw explained, is that the basement carpark is more than 1.2 metres above ground level so that the whole of that basement carpark is included within the floor space ratio of the development. Excluding the car parking level, the residential component of the development would have a floor space ratio of 0.65:1. With the carpark included it has a floor space ratio of 0.99:1. Ms Laidlaw expressed the opinion that the purpose or objective of the standard was to control bulk and scale of development. A reasonable assessment of the proposed development would recognise that its bulk and scale was consistent with what the planning controls sought to achieve on a site such as this, and that the non-compliance with the floor space ratio control was a consequence of the topography of the site and the fact that the car parking level, thereby, was more than 1.2 metres above ground level. For these reasons, Ms Laidlaw concluded that the objection to that standard under SEPP 1 was well founded. I have read that objection and I share Ms Laidlaw's view that the objection is well founded having regard to the circumstances which she identified.

23 With respect to cl 47(2) of the LEP requiring a 6 metre setback from the side boundary, the SEPP 1 objection identified that there was a zero setback to the landscaped planter beds, a 2.7 metre setback to the car-parking level wall, and a 5.2 metre setback to the upper level residential units. As I understood Ms Laidlaw's evidence, it was to the effect that the setback to the upper level residential units was in fact slightly greater than this. In any event, the provisions of cl 47(1) identify that the purpose or objective of that development standard is to protect the land zoned 7 Environment Protection and to ensure an appropriate interface between development and that land. Ms Laidlaw expressed the opinion (consistent with the SEPP 1 objection) that the site was effectively an orphan site, was constrained by its width, with the car-parking dimensions a direct function of the requirements for car-parking on the site. As such, it would be unreasonable and inappropriate to require strict compliance with the side boundary setback standard. The SEPP 1 objection accordingly was well founded and should be upheld. Again, I agree with Ms Laidlaw's view in this respect.

24 Ms Laidlaw explained that, in her opinion, there had been amendments to this development application since her original statement such as to make the current plans (exhibit D) an appropriate development for the site. In Ms Laidlaw's view, the development would be relatively modest from the street and would appear largely as a two storey development and, in the circumstances described, the two non-compliances with the development standards did not render the development inappropriate. Nor, in Ms Laidlaw's view, did the non-compliances with the frontage requirement and general setback requirement in the DCP, that is 1.5 metres to the eastern boundary, render the development inappropriate. In Ms Laidlaw's view, it was a better planning outcome to optimise the setback to the west in order to ensure an appropriate relationship with that land.

25 Ms Laidlaw said that because of the substantial reduction in height from the original plans the building would appear as only one storey above the living levels of the adjoining development at 18-20 Robert Street. The eastern side of the development contained bedrooms and wet areas, so there would be no inappropriate overlooking from those bedrooms to the east.

26 Ms Laidlaw addressed the issues in the Council's amended statement of issues, as it appeared prior to the Council hearing Ms Laidlaw's evidence and confirming that it no longer pressed these issues. She indicated that, with respect to issue (2), floor space ratio, her view was that the floor space ratio of the development did not indicate inappropriate height, bulk or length and that the actual bulk of the development was no greater than the standard anticipated.

27 With respect to issue (3), the frontage, Ms Laidlaw acknowledged the non-compliance with the DCP and said that it was an inevitable consequence of the site and that the site simply could not be amalgamated with any other site.

28 With respect to issue (4,) the side setback and cl 47 of the LEP, I have already identified the reasons Ms Laidlaw gave for concluding that the SEPP 1 objection was appropriate.

29 With respect to issue (5), view sharing, a number of the residents raised concerns, as set out above. Ms Laidlaw said that, in her original consideration of the application, she did not consider this issue determinative. She had considered the planning principle expressed by the Senior Commissioner in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 and, having regard to those guidelines, had concluded that the subject development sat relatively low given its location. While residents of 18-20 Robert Street would lose views of the bush from their living areas, the form of development on the subject site was envisaged by the planning controls.

30 With respect to issue 7, bulk and scale, Ms Laidlaw reiterated her views that the bulk was appropriate, that the development was a nicely designed building with appropriate articulation in its façades. She was of the view that the original development as proposed was simply too big, but that the subject development now proposed was appropriate.

31 As I have said, the Council, having heard Ms Laidlaw's evidence and had the opportunity to look at the exhibit D amended plans, informed me that all of the issues in its amended statement of issues had now been resolved.

32 I have seen the site. While I accept that there will be impacts from this development, particularly on the residents of 18-20 Robert Street, I agree with Ms Laidlaw's conclusion that this is the form of development that the planning controls envisage. I cannot characterise any of those impacts, including the view impacts, as unreasonable. In the circumstances of the planning controls and in the circumstances of the actual location of this site, the proposed development, in my view, is reasonable and appropriate.

33 I am also of the view that the other issues raised by the residents do not warrant refusal of the development application. Again, while I appreciate the concerns they have about parking and the lack of space in the street for garbage areas, the Council's position is that the car-parking and the garbage collection area proposed in the subject development are both compliant and appropriate. In those circumstances, and having seen the site, I have concluded that the Council's position in this respect is reasonable and that the concerns that have been raised should not lead to refusal of this development application.

34 The Council, as I have said, raised no other considerations under s 79C of the Environmental Planning and Assessment Act 1979. I am satisfied that the objections under SEPP 1 are well founded and am of the opinion that the granting of consent to this development application will be consistent with the aims of SEPP 1, because strict compliance with the standards would be unreasonable and unnecessary in the circumstances of this case and tend to hinder the attainment of the objects specified in s 5 of the Act. The form that the development has taken is a direct outcome of the particular topography and location of the site, in the context of planning controls that contemplate development of the site as a residential flat building.

35 As such, I am satisfied that development consent should be granted to this application. I propose to make orders that the appeal be upheld and that development consent be granted to the development application subject to the conditions required by the Council, on the basis that the two objections under SEPP 1 are upheld. As agreed by the Council and the applicant, certain additional conditions are required. The agreed additional conditions are: - (i) louvres on the rear balcony as referred to in my discussion of Mr Hartanto's evidence, (ii) extend the timber treatment of the retaining wall as referred to by Ms Laidlaw, (iii) require the stone treatment of the retaining wall to be provided, as referred to by Ms Laidlaw, and (iv) ensure appropriate construction management, particularly to protect the land zoned 7 from construction and development impacts (having regard to the provisions of cl 47(1) of the LEP). [Discussion with legal representatives about time to file agreed amended conditions]. 36 I direct the parties to file the final conditions of development consent by 6 September 2006, after which orders will be made in Chambers upholding the appeal.

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