Tannous v Parramatta City Council

Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; CASES CITED: Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NEWLEC 138

APPLICANT Mrs M.L. Taylor, solicitor SOLICITORS Norman Waterhouse

RESPONDENT Mr C. Drury, solicitor SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10066 of 2005 Jack Tannous v Parramatta City Council

JUDGMENT 1 This is an appeal against the refusal of DA1581/2003 by Parramatta City Council (the council) for the demolition of two existing dwelling houses and the erection of a multi-unit housing development at No. 46-48 Greenleaf Street, Wentworthville, the corner of Peachtree Avenue (the site).

2 The site is described as Lots 206 and 207 in DP219762. The site is slightly irregular in shape with a frontage to Greenleaf Street of 46.6 m and a frontage to Peachtree Avenue of 16.8 m. The site has a slope of approximately 1.7 m from the south-eastern corner to the north-eastern corner. It is located in the Old Toongabbie-Wentworthville area. 3 The properties to the east and south are single dwellings. Development within the immediate locality consists primarily of modest single-storey dwellings with more recent two-storey dwellings and second storey additions.

4 The proposed development seeks to construct a multi-unit housing development containing seven units consisting of 5 x 3 bedroom units and 2 x 2 bedroom units. A basement car park provides for seven garages, a car wash bay and storage facilities. 5 The site is zoned Residential 2A under Parramatta Local Environmental Plan 2001 (the LEP). The proposed development is prohibited within this zone however the application was submitted prior to the coming into effect of the current Residential 2A zone. The development was lodged on 14 August 2003. 6 Amendment 11 to the LEP was gazetted on 22 March 2004 and changed the zoning of the site from Residential 2B to Residential 2A. Amendment 11 contains a savings provision at cl 5 that states: "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 had not been made."

7 Cl 40 of the LEP states that the floor space ratio (FSR) for a multi-unit housing development shall not exceed 0.6:1. The proposal provides an FSR of 0.58:1.

8 Cl 16.3 of the LEP states that" "Consent must not be granted unless the development is consistent with the objectives of the zone."

9 Cl 16 also provides objectives for the Residential 2A and Residential 2B zones.

10 Parramatta Development Control Plan 2001 (the DCP) also applies to the application. Relevant sections include s 4.3 amenity issues, 4.4 design issues and 5.5 specific controls for multi-unit housing.

11 The council filed a Statement of Issues containing six issues. The provision of bicycle racks and the relocation of the garbage enclosure (Issue 1) was addressed through a condition of consent. The need for direct access to the car park from each unit was not pressed by the council and the amenity impacts relating to visual and acoustic privacy, safety and security, vehicular access, parking circulation and solar access (Issue 5) were also not pressed by the council although they were still issues raised by local residents. 12 The remaining issues can be grouped into the following main areas: 1. whether the proposed development is consistent with the future desired character of the Residential 2A zone (Issue 2) 2. whether the proposed development is substantially the same development as determined by the council (Issue 1), and 3. matters raised by the objectors.

13 The parties agreed to the appointment of Mr Charles Hill as the Court appointed town planning expert. 14 On the issue of consistency with the character of the Residential 2A zone, s 79C(a)(ii) of the Environmental Planning and Assessment Act requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case, the amending LEP is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development. This requires a consideration of whether the making of the amending LEP is imminent and certain, and also the savings and transitional provisions.

15 President Mason in Terrace Tower Holdings Pty Limited v Sutherland Shire Council 2003 NSWCA 289 at par 5 states: "The weight that will be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted, on the basis of its imminence and certainty."

16 He further states at pars 50 and 51: "The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provisions and the command of s 79C(1)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight.

Cowdroy J did not err in law in paying significant weight to the fact LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned by virtue of the command of the transitional provision. S 79C(1)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in the draft instrument. Its provisions have become certain and its commencement imminent (in relation to the date of lodgement of the instant development application). Commonsense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or" "arrival."

17 In Architects Haywood and Bakker Pty Limited v North Sydney Council 2000 NSWLEC 138, Pearlman J, addresses the question of imminence and certainty. In this case a development application for attached dwellings was the subject of a draft environmental planning instrument. It also contains savings and transitional provisions with similar intent to that proposed in this application. In this case, it was agreed that the proposed development took the form of carriage development although the draft environmental planning instrument contained objectives to avoid carriage development. Her Honour found that this non-compliance was critical and that the proposed development did not accord with the planning app 18 If the circumstances in Architects Haywood and Bakker are compared to the subject application, two significant points emerge that support the council's position that significant weight should be given to the amending LEP. Firstly, the consideration of the amending LEP has reached a more advanced stage than the draft environmental planning instrument considered by her Honour. The council in Architects Haywood and Bakker were still considering the submissions from a second round of advertising. Secondly, the application in this proposal is prohibited by the amending LEP whereas the development proposed in Architects Haywood and Bakker was still permissible under the draft environmental planning instrument although not in the same form provided by the existing environmental planning instrument.

19 Relevantly on the second point, in Terrace Tower Holdings, Spigelman CJ states at paras 6 and 7: "Notwithstanding certainty and imminence, a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect.

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 application under the pre-existing instrument which would in a substantial way undermine that objective."

20 In this case the amending LEP seeks to create a different character for the area then envisaged by the pre-existing instrument. This is clearly represented by the change of zoning from Residential 2B to Residential 2A and importantly the prohibition of multi-unit housing.

21 Considering the comments in Terrace Towers Holdings, the proposal represents a significant change in character to that contemplated by the amending LEP and could be reasonably seen to undermine the objective or planning intent of the amending LEP. As such, the amending LEP is entitled to considerable weight in the assessment process.

22 When combined with the imminence and certainty of the amending LEP, I am persuaded that the level of weight that should be given to the amending LEP should be determinative, and as such the appeal must fail. I note Mr Hill reaches a similar conclusion. 23 The savings and transitional provisions in the draft LEP do not alter this conclusion. The Court must consider the provisions of the amending LEP as if it had been placed on exhibition but not made, and accordingly give weight to its provisions in the assessment of the development application.

24 In coming to this conclusion, I have taken into consideration a number of submissions made by Mrs Taylor, the applicant's advocate. Firstly, I do not accept that the form of the proposed development will be consistent with the residential character anticipated by the Residential 2A zone. While the two-storey construction could be seen to be similar to some two-storey residential development in the general area, the immediate area is almost exclusively modest single-storey dwellings. 25 In general terms, I am not overly troubled by the two-storey aspect of the proposed design. In my view the inconsistency with the anticipated form of development in the Residential 2A zone comes from the massing of the seven units in one built form. Even though genuine attempts have been made to provide an articulated presentation to the street, this does not satisfactorily address the presence of a single building containing seven dwellings in an area that is currently made up of single dwellings and in the future, potentially dual occupancy dwellings as the highest form of development.

26 Secondly, and notwithstanding the submission that the site is relatively isolated as it adjoins a park and has only two adjoining neighbours; the presence of the building in the streetscape will be clearly inconsistent with the anticipated future character of the area.

27 Thirdly, and while being urged by Mrs Taylor that I should give some consideration to the proposed public transport corridor or T-Way that is proposed nearby along Old Windsor Road and the likely possibility of increased densities to support this public transport corridor, the submission is clearly premature based on the documentation provided to the Court.

28 It is not necessary to deal with the other issues based on my previous findings, however I make the following comments. 29 The question of whether the proposed design is substantially the same development as that considered by the council was answered by Mr Hill in the affirmative. With the benefit of the architectural plans of both designs, the details of the comparison of the changes contained in the statement of basic facts, I agree with the conclusion of Mr Hill.

30 In relation to the residents' concerns and putting aside the findings on the inconsistency with the character of the area, I agree with the conclusions of Mr Hill that there are no issues identified by the local residents that would justify the refusal of the development application.

31 For these reasons, the Orders of the Court are: 1. The appeal is dismissed. 2. DA 1581/2003 for the demolition of two existing dwellings and the erection of a multi-unit development at 46-48 Greenleaf Street, Wentworthville, is refused. 3. The exhibits are returned with the exception of Exhibits 1 and 5.

G T Brown Commissioner of the Court ljr

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