Soliman v Parramatta City Council

CASES CITED: Currey v Hargraves and Others [2007] NSWLEC 471 Wehbe v Pittwater Council [2007] NSWLEC 827

DATES OF HEARING: 25 February 2009, 26 February 2009 and 6 March 2009

APPLICANT Ms D Holm (solicitor) SOLICITOR McKees's Legal Solutions LEGAL REPRESENTATIVES:

RESPONDENT Mr P Marcowitz (solicitor) RESPONDENT Phillip Fox Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10394 of 2008 Dr Fawzy Ibrahim Soliman v Parramatta City Council

JUDGMENT 1 The applicant in these proceedings is seeking to refurbish the existing heritage cottages, with frontage to Lennox Street Parramatta, and use these for commercial purposes, and also to construct two attached dwellings at the rear of the property with frontage to Marsden Street.

2 The site consists of two allotments on the southeastern corner of Lennox and Marsden Streets, Parramatta, known as 1-3 Lennox Street and being Lots 1 and 2 in DP 501508. The site is generally rectangular in shape with a 19 metre frontage to Lennox Street and a long boundary to Marsden Street of some 29 metres, yielding a site area of 558 square metres.

3 The immediate surrounding area is varied as shown in the aerial photograph at Figure 1. Opposite the subject site in Lennox Street there are relatively large residential apartment buildings of varying age although the one on the corner immediately opposite is a more recent construction.

4 Adjoining the site in Lennox Street, is a single storey dwelling and further to the east there are a number of residential dwellings, with frontage to Lansdowne Street and with the rear of the properties and vehicle access to Lennox Street. Where Lennox and Lansdowne Streets converge there is a triangular shaped allotment with a large residential flat development. Opposite the subject site in Marsden Street are multi unit developments and further to the north there is a large recreation open space area. At the rear of the subject site on the corner of Lansdowne and Marsden Streets there is a shop with an adjoining residence.

5 The pair of cottages fronting Lennox Street are listed as heritage items under the Parramatta Heritage Local Environmental Plan. The National Trust has included the cottages on the State Heritage Register and provided the following description: Pair of small single storey semi-detached brick cottages. Twelve pane sash windows. Gabled roof clad with slate. Front verandah also clad with slate. National Trust (Parramatta Branch): Fabric: Flemish bond brick walls, now painted, and slate roof. Roof Construction: Gable. Chimneys: Central shared brick chimney with two tall terracotta pots. Verandah: Slate skillion roof over verandah across front of both cottages. Verandah Floor: Concrete. Verandah Supports: Timber posts stop chamfered. Verandah Decoration: Both cottages have three rail timber balustrade along fence line. Window Sill: Painted sandstone. Fence: Verandah balustrades along fence line have wrought iron gates. Additions: Skillion addition across rear. Archit Style: Victorian attached single-storey cottages. Front Door: Timber flush. 6 The inventory form for the City of Parramatta Heritage Study describes the cottages "as historic and representative. Professional, trade and manufacturing practice - intact example of an early housing type now rare… rare example of modest 1860's rental cottages roofed with slate".

Issues 7 The respondent submitted a Statement of Facts and Contentions and these can be summarised as follows: - the multi unit housing and the commercial use of the existing cottages are not permissible in the 2(e) zone and that the five preconditions for dispensation, for uses not allowed by the zone, have not been satisfied by the proposed development. - the floor space ratio of 0.6:1 should not be exceeded and the SEPP No. 1 objection is not supported. - the proposal is unacceptably bulky and an overdevelopment of the site. - the development does not meet the objectives for the conservation area. - privacy would be unacceptably reduced because of inadequate setbacks and limited landscaping. - the two new dwellings do not comply with the front setback requirement and the proposed car space for one of the new dwellings is not proximate. - the two new dwellings will not maintain the visual importance of the heritage cottages. - the proposed development has an unacceptable impact on the Marsden streetscape. - there will be an unacceptable impact on the heritage significance - the curtilage and setting of the two existing cottages and the conservation area. - insufficient information has been provided to assess overshadowing. - there is a lack of deep soil zone landscaping which should be a minimum of 30%.

Statutory Planning Framework 8 The subject site is zoned 2(e) Residential under the Parramatta Local Environmental Plan 2001. The objectives include: (d) To provide opportunities for a range of housing types to accommodate the needs of the community. (g) To identify and conserve those localities which contribute to the natural, built and cultural heritage of the City of Parramatta. 9 The 2(e) Residential Zone is flood affected land and the zone objectives are: (a) to limit the erection of structures on land subject to flood inundation, and (b) to identify land that is subject to flood inundation and is considered to be unsuitable for intensification of development, and (c) to ensure that the adverse effect of inundation is not increased through development, and (d) to maintain the amenity and existing characteristics of areas predominantly characterised by dwelling houses, and (e) to permit only low scale development which has regard to the residential amenity of the locality, and (f) to provide opportunities for people to carry out a limited range of activities from their homes where such activities will not adversely affect the amenity of the neighbourhood. 10 Development permitted with consent in the zone includes: dwelling houses; granny flats; home business; and local shops.

11 Was 40(1) provides that multi unit housing must not exceed the maximum floor space ratio of 0.6:1.

12 The Parramatta Local Environmental Plan 1996 (Heritage and Conservation) includes the following objectives: (c) To conserve existing significant fabric, settings, relicts and views associated with the heritage significance of heritage items and heritage conservation areas. (d) To ensure that any development does not adversely effect the heritage significance of heritage items and heritage conservation areas and their settings. 13 The two cottages on the site are in Schedule 2 as items of local significance and are described as a pair of cottages.

14 Clause 14 relates to development adversely affecting a heritage item or heritage conservation area and its provisions are as follows: ( 1) Before granting consent for development that may undermine or otherwise damage a heritage item or a building, work, relic, tree or place within a heritage conservation area or will obscure, overshadow or otherwise have a substantial adverse effect on a view of a heritage item or of a building, work or tree within a heritage conservation area, or that will otherwise adversely affect the heritage significance of a heritage item or heritage conservation area (or that will have a substantial adverse effect on a view from any such item or from habitable places within any such area), the consent authority must assess the impact of the development: (a) on the heritage significance, curtilage and setting of the heritage item or the heritage significance of the heritage conservation area, and (b) on any significant views to or from the heritage item or the heritage conservation area. (2) The consent authority may refuse to grant any such consent unless it has considered a heritage impact statement that will help it to assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item or the heritage significance of the heritage conservation area. (3) The heritage impact statement should include details of the size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works and details of any modification that would reduce the impact of the proposed development on the significance of the heritage item or the heritage conservation area. 15 Clause 17, the provision for conservation incentives, states: (1) The consent authority may grant consent to the use for any purpose of a building that is a heritage item, or of the land on which a heritage item is erected, even though the use would otherwise not be allowed by an environmental planning instrument, if: (a) it is satisfied that the retention of the building or item depends on the granting of consent, and (b) the proposed use is in accordance with a conservation management plan which has been approved by the consent authority, and (c) the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and (d) the proposed use would not adversely affect the heritage significance of the heritage item or its setting, and (e) the proposed use would not adversely affect the amenity of the surrounding area otherwise than to an insignificant extent. 16 The Parramatta Heritage Development Control Plan of 2001 contains a number of general principles and of particular relevance for scale is the following: The scale and bulk of any new work is the most important issue to get right. In case of infill work in a conservation area or special character the scale of the new building needs to be similar to those around. In the case of renovations and extensions the new work should not over whelm the original building, and with almost certainly need to be no larger in size than the original building. 17 For the principle of use the DCP states: The best use for a building is usually the one for which it was built. Where this is not possible, a use which requires minimal alterations will be more compatible. 18 The DCP guidelines for new buildings under 3.5.1 states: Applicants needs to concentrate on getting the height, siting, shape and materials right so that new buildings will blend with old areas without imitation of period details... In those areas where the pattern of development is not part of the heritage significance of the place, new buildings at the rear of old buildings might be approved if they can be designed and sited successfully so that do not disrupt the streetscape, affect the setting of the heritage item or destroy the amenity of the area. 19 The subject site is shown in the DCP as in the South Parramatta Conservation Area. This is shown at Figure 2. The distinctive characteristics of this Conservation Area include: - Pattern of suburban development mostly single storey free standing dwellings or pairs of semis separated from the street and neighbours by planted garden space. - Enclosed character reinforced by width of allotment, early buildings built on or close to front fence - Groups of early cottages on narrow lots or close together and close to the street - Small groups of one and two storey shops 20 Under the Statement of Heritage significance the DCP includes the following: This area is the earliest remaining example in Parramatta of a speculative private subdivision related to the railway. The pattern of subdivision remains along with a very intact collection of early pre-1900 cottages. The consistently single storey scale of most of its housing and associated shops, and the range of building styles, from the 1850s to the 1960s, clearly demonstrate the way in which this suburb gradually developed and allows its history to be understood. Council's Objectives For The Area & How To Achieve Them This plan is directed towards keeping this historic residential area much as it is. Opportunities for development are limited. Second storey additions and new two storey buildings are not permitted so that its single storey character is not disturbed. Modest additions to increase accommodation or to provide attached dual occupancy are permitted at the back of the house. The plan also allows careful changes to upgrade facilities. Subdivision Pattern + Maintain the historical pattern of subdivision Siting, Setbacks & Garden Area + Maintain the historical pattern of development of individual dwellings on deep parcels of land surrounded and separated by garden space. + Keep views around and between buildings + Maintain amenity and privacy of back gardens + Ensure adequate rainwater absorption area per allotment Avoid: + Additions to the front or side of an existing house

Extensions To Existing Buildings & New Buildings + Maintain the visual importance of historic buildings + Keep a consistency of scale and materials in new work and extensions to existing buildings so that the new work does not detract from historic buildings in the area or from the area's visual consistency and amenity For New Development Keep & Repeat: + Single storey scale with maximum wall height to relate to nearby building listed in Schedule A + Hipped or gabled pitched roofs not exceeding 35 degrees. Rooms in roof can be considered where ventilated only by flat, in-plane skylights + Setback of 8m or more for any new house + Materials for new buildings of face or common bricks, timber or fibro, with terracotta tile or corrugated steel roofs. 21 The Parramatta Development Control Plan 2005 contains general principles for development including context and site analysis and special character areas.

Evidence and submissions 22 The Court met on site the first morning of the hearing to inspect the cottages as well as the conservation area and surrounding development.

23 A number of experts gave evidence to the Court and prepared statements. For the applicant Mr Eugene Sarich, a consultant town planner, Mr Roy Lumby, heritage expert and Mr Michael Siu, landscape expert gave evidence to the Court. On behalf of the respondent Mr Allan Middlemiss, a senior development assessment officer with the council, Mr Zoran Popovic, heritage consultant and Mr Ryan Bollard, a landscape tree management officer with the council gave evidence to the Court.

Heritage 24 Mr Lumby for the applicant considers that the proposal is justified because it will ensure the retention of the heritage items. Mr Popovic on the other hand considers that the proposal should be primarily assessed against the applicable planning controls.

25 Mr Lumby is of the opinion that it is unlikely that a satisfactory conservation outcome could be achieved without additional buildings on the site. Mr Popovic states: "that while this may be true there has been no information provided that would be sufficient to conclude the development is necessary for the retention of the heritage items, he states that it remains unclear whether granting commercial use without additional buildings on the site, would be sufficient to ensure the conservation and future maintenance of the heritage items.

26 The heritage consultants agreed that while the larger curtilage is generally better the current lot boundaries are not of major heritage value in their own right being created around 1940 although a proposal to reflect the 1895 boundary may be worth exploring.

27 On the question of the addition to the heritage items the heritage experts agreed the rear skillion additions are acceptable and comply with the conservation area guidelines.

28 Both heritage experts agreed that there is scope for a new building on the site, however Mr Lumby considers that it is relevant to have regard to the new development immediately opposite that is the residential flat building of three storeys and several historic two storey buildings located within the area and that the latter establish that the conservation area is not uniform ally single storey. Mr Popovic considers the prevailing factor is for new development to be single storey with wall height related to the nearest heritage item. He does not consider the residential flat building opposite is relevant because it is outside the conservation area boundary.

29 On the question of the setback of the new building to Marsden Street Mr Lumby considers consistency with other development is appropriate where as Mr Popovic considers 8 metres is required.

30 It was agreed that with the heritage incentive clause in the LEP council could grant consent to otherwise prohibited development where retention of the heritage item depends on that use. They also agreed that in order for this to take place details of costs are needed. 31 Mr Popovic considers that the heritage items are more important than the conservation area because they are two of the oldest houses in the area dating back to the 1860's. He considers the wall height of the proposal overwhelms the heritage item and that when viewed from the park in Marsden Street the free standing cottages will not be as visible. Mr Lumby on the other hand considers that the recently constructed three storey residential flat building opposite the heritage items will still be seen as the background to the cottages.

Planning issues 32 The planners prepared a joint report and the applicant submitted an objection under State Environmental Planning Policy No. 1 was submitted to vary the floor space ratio from 0.6:1 to 0.68:1. Mr Middlemiss considers the increased floor space ratio is not justified.

33 On the question of FSR the planners agree that the exceedence is barely discernable over the site and is unlikely to have any deleterious affect on the amenity of the adjoining residents. However, Mr Middlemiss considers the non compliance is not good planning and results in reduced landscaped area. Mr Sarich is of the view that the bulk and scale should be considered in the context of the surrounding built environment and this includes the residential flat buildings on the opposite side of Lennox Street.

34 Mr Middlemiss also considers that there has been insufficient evidence submitted to establish that retention of the heritage item is dependent upon the granting of consent to this development application. Mr Sarich is of the opinion the proposal will generate a recurrent rental return to enable the financing of a building loan to enable the restoration of the heritage cottages and their adaptive reuse. He considers that the proposal is not unduly intrusive.

35 Mr Middlemiss considers that the parking space for one of the residential dwellings with access from Lennox Street is detached from the dwelling and is not satisfactory. Mr Middlemiss further considers that there will be a loss of view/vista to the cottages from Marsden Street open space area whereas Mr Sarich considers that this view is of little benefit to anyone and that the built form is similar to terraces.

Landscaping 36 On the contention of inadequate landscaping it was agreed that some 43% of the site is to be landscaped, however the landscape experts agreed that the differentiation between the soft and hard surfaces is not shown on the landscape plan. However, this could be dealt by way of condition. Mr Bollard is of the opinion that the proposal will impact upon the tree in the adjoining neighbours property.

37 It was submitted on behalf of the Council that the heritage cottages have been owned by the applicant since 1994 and have been neglected and that the applicant now asks for special treatment under the conservation clause of the LEP.

38 Following the hearing the respondent provided to the Court details of the zoning at the time the applicant purchased the property in 1994. This was the Parramatta Planning Scheme Ordinance and the land was zoned 2(c) wherein residential flat buildings could be erected with consent.

39 The council wrote to Dr Soliman, 1 May 1996 to advise that the cottages had been placed on the heritage schedule in the Draft Heritage LEP which was subsequently gazetted February 1997. The council's letter of May 1996 stated that:

Incentives There are incentives available to owners of heritage listed properties. The draft LEP allows council to relax zoning and parking requirements and, in some cases, to approve increase development densities for heritage listed properties or sites within a heritage conservation area... Notwithstanding the availability of these incentives there is absolutely no requirement for owners of heritage properties to undertake any restoration or other work against their wishes. Assessment and findings 40 I have assessed the development application against the statutory planning framework and the evidence to the Court.

41 The town planners agreed that on its own the non compliant floor space is barely discernable over the site and unlikely to have any deleterious impact on the amenity of the adjoining residents. They considered that the matters relating to bulk and scale and impact on the existing heritage items and streetscapes are ones to be addressed by the heritage experts. Mr Middlemiss however was concerned about how the non-compliance compounds the non-complying landscaped area.

42 Clause 40 of the LEP does not contain a purpose or objectives for the FSR standard. In the SEPP No. 1 Objection the underlying purpose is stated as to control bulk and scale of developments. In the circumstances of this particular case I must also have regard to the impact on the heritage items and conservation area.

43 Clause 3 of the SEPP No. 1 states "this policy provides flexibility in the application of planning controls where strict compliance with those standards would, in any particular case be unreasonable or unnecessary or tend to hinder hinder the attainment of the objects specified in section 5(a)(i) and (ii) the of the Act."

44 In my assessment of the SEPP 1 objection to vary the FSR from 0.6 to 0.68:1 I have considered the principles established by the Chief Judge of this Court in Wehbe v Pittwater Council. Having regard to all the evidence to the court I am satisfied that the SEPP 1 objection is justified in the circumstances of this case and the standard is unnecessary and would tend to hinder the objects of the Act - "to encourage the proper management development and conservation…for the purpose of promoting the social and economic welfare of the community and a better environment" and "the promotion and coordination of the orderly and economic use and development of land".

45 The proposal will not present an unreasonable bulk or scale having regard to its context. In my opinion the proposed development is not inconsistent with the character of the area with the two storey structure on the corner of Lansdowne and Marsden and the three storey apartments and multi unit developments in the vicinity of the subject site as seen in figure 4. Furthermore, and in more sensitive terms and importance, is the context of the proposal and its relationship to the heritage items to be retained on the subject site and in this regard I am satisfied that the 5 metre separation distance between the cottages and the proposed new dwellings with the proposed landscaping on the subject site will not impact on the heritage significance of the cottages. The new two storey dwellings will also site comfortably in the Marsden Street streetscape in the context of the broader area. The standard of 0.6:1 in my assessment is unreasonable and unnecessary and would hinder the attainment of the objects of the Act. 46 In terms of clause 7, I am satisfied the objection is well founded and in terms of clause 8, I am also satisfied it does not raise any issues of State or regional significance and is not contrary to maintaining the standard.

47 It was submitted on behalf of the respondent that there is no evidence before the Court that the extent and size of the proposed new development is necessary to cover restoration works and that the Court does not have sufficient detail of the engineering works required for restoration of the cottages.

48 The judgment of Lloyd J in Currey v Hargraves and Others [2007] NSWLEC 471 was referred to the Court to assist with the words "depends on" in clause 17 of the LEP. I quote from his Honours judgment at paras 19 to 24: ... it must be remembered however that the LEP is subordinate legislation and not drafted with the particularity or specificity of a statute. It should not be construed in a strict or overtechnical way, but rather in a practical, reasonable and common sense way... It is necessary therefore to construe the LEP with the flexible and practical approach to construction adopted by Lord Reid in Gil v Donald Humberstone Company Limited [1963] 1 WLR 929... ... as noted by Kirby P words may vary greatly in colour and content in according to the circumstances in which they are used. In my view the requirement that: "The conservation of the building depends on the granting of the consent is in the circumstances met where the consent assists in or contributes to the conservation of the building since that would achieve the objective described. His Honour held that it is open to the council to be satisfied that the conservation of the heritage item depended on the funding received through the operation of the proposed tourist accommodation. 49 In my assessment there is sufficient information to the Court with the schedule of conservation works of May 2007 (Exhibit F) and the inspection schedules (Exhibit L) and the conservation management plan (Exhibit E). I note in the schedule of works there is the task of "investigating the cause of cracking at the north eastern corner of the building and remedy by a suitable method once the cause has been determined." This may require underpinning and is a matter that can be addressed by a deferred commencement condition to more precisely detail the work prior to operation of the consent.

50 On balance I agree with the evidence of Mr Lumby in that the development is an acceptable heritage outcome. In my opinion the heritage cottages will continue to be read as distinctive elements in the streetscape and the conservation area. The setback of the two storey multiunit dwellings taking the form of terrace houses will not overwhelm the heritage dwellings and the curtilage is satisfactory.

51 The applicant agrees to timber paling fences for the rear yards and this is sympathetic to the heritage items. As such a condition on the consent is to reflect same.

52 The cottages will continue to be visible from not only Lennox Street but also Marsden Street. The heritage cottages will be interpreted and representative of their era with the proposed new development at the rear. I am also satisfied that in the context of the visual catchment and the conservation area the new two-storey dwellings provide a reasonable fit without an adverse effect on the heritage significance or views of both the items or the conservation area. Therefore in my assessment under clause 14 (2) and (3) of the 1996 LEP on the impact of the proposed development on the heritage significance, curtilage and setting of the heritage item and conservation area; and views to and from, are not impacted. In terms of subclause (3) the setbacks size shape are satisfactory. The question of materials including fencing can be appropriately conditioned but because of the Regulation to the Act are to be the subject of a deferred commencement consent. However, I am satisfied this does not create uncertainty nor is it a detail that has prevented me from assessment under clause 14(3).

53 In my assessment under clause 17 -conservation incentives, the use of the heritage items for commercial purposes is not allowed unless certain criteria are satisfied. I am satisfied that the retention of the building or item depends on the granting of consent. In my assessment under subclause (a) I am informed by the authority of Lloyd J. Furthermore heritage conservation in many instances would be thwarted by waiting for optimum or ideal solutions.

54 For subclause (b) I am also satisfied the proposed use is in accordance with the conservation management plan and the granting of a deferred commencement consent to the development will ensure that all the necessary conservation work is carried out. A condition of consent is to be imposed such that the conservation works for the heritage item are to be carried out prior to the lock-up stage for the multiunit dwellings constructed at the rear. In the circumstances this represents an appropriate resolution of the practical timing of such works.

55 I am satisfied that there is no uncertainty by the deferred commencement condition as to the details of the engineering work required for the conservation of the heritage items, to satisfy subcl c. The documentation tendered to the court by the applicant is sufficient to satisfy me in terms of this subclause and the deferred commencement is to specifically address the engineering works required under this one item only.

56 In terms sub clause (d) I am also satisfied the proposed commercial use would not adversely affect the heritage significance of the heritage item or its setting. Similarly sub clause (e) is satisfied as the proposed use would not adversely affect the amenity of the surrounding area.

57 In my overall assessment the proposed development will allow for conservation and use of the heritage items and the new development of multi-units in the form of dwellings will maintain the heritage significance of the cottages and are in keeping with the character of the area and sympathetic to the conservation area.

58 In summary the prohibited uses in the zone that is the use of the cottages for commercial purposes and the multi-unit dwellings satisfy the requirements of clause 17 of the 1996 LEP and in my assessment development consent subject to conditions should be granted. 59 I have given central consideration and made the DCP's a focus of my assessment and while the development is not in accordance with all the guidelines, such as reisidential use of the cottages, at the same time a holistic interpretation and reading of the DCP's on a merits assessment leads me to conclude the proposal warrants approval.

60 Having regard to the overall merits of this application it is important that I have regard to the impacts of the proposed development on the heritage item and in my assessment the impacts are minimal and it is not a case held in the balance as to whether less development or different uses are only appropriate.. I am satisfied that the proposal will allow for the conservation of the heritage items and use of the site for two dwellings as proposed without adverse environmental or heritage impacts.

61 The proportionality of requiring further information when clearly the poor and neglected physical condition of the cottages is a circumstance of the case must be considered. In my assessment it would be unreasonable to refuse consent on the basis that further and better particulars are required. I am satisfied the proposed development will allow for the retention of the cottages and the development is not out of character with either the area and will not impact on the heritage significance of the cottages.

62 I note that the council has not issued any notice or an order for the maintenance of the cottages and this is unfortunate. In my assessment council has not raised any contentions that would warrant refusal of the application and the development should be approved.

63 Accordingly, on the basis of my assessment above the Orders of the Court are: 1. The appeal in respect of the properties No.'s 1-3 Lennox Street, Parramatta is upheld.

2. The development application submitted to Parramatta City Council and as amended is granted a deferred commencement consent subject to the condition contained in Annexure A.

3. The exhibits are returned to the parties with the exception of A, E, H, O and 4.

          J S Murrell
          Commissioner of the Court
          ljr

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