Burrough v Hornsby Shire Council
[2005] NSWLEC 479
•08/29/2005
Land and Environment Court
of New South Wales
CITATION: Burrough v Hornsby Shire Council [2005] NSWLEC 479
PARTIES: APPLICANT
Rod BurroughRESPONDENT
Hornsby Shire CouncilFILE NUMBER(S): 10435 of 2005
CORAM: Hoffman C
KEY ISSUES: Development Application :- Subdivison - erection of a new house - inadequate rear boundary setback - loss of privacy - impact on the character of the area - inconsistency with prevailing subdivision pattern - easement restrictions - visual outlook - amenity impacts
LEGISLATION CITED: Hornsby Local Environmental Plan 1994
Hornsby Residential Subdivision Development Control Plan
Dwelling House Development Control PlanDATES OF HEARING: 29/08/2005 EX TEMPORE JUDGMENT DATE: 08/29/2005
LEGAL REPRESENTATIVES: APPLICANT
Mr G McKee, solicitor
SOLICITORS
McKeesRESPONDENT
Mr T Pickup, solicitor
SOLICITORS
Storey & Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
10435 of 2005 Rod Burrough v29 August 2005
Hornsby Shire Council
JUDGMENT
1 This is a class 1 appeal No. 10435 of 2005 between Rod Burrough and Hornsby Shire Council in regard to refusal of a development application for a subdivision at No. 6 Castle Lea Court, Castle Hill, into two lots and the erection of a new house on the new lot.
2 A large house already exists on the site. It would be left with a lot of 762 sq m called Lot 151 and the second lot proposed Lot 152 is to be a battleaxe lot of about 570 sq m without counting the access handle. In that allotment is a large drainage easement 6 m wide serving as a 1:100 yr overland flow path from the Anglican Retirement Village to the south beyond the rear fence of No. 6.
3 The easement occupies about one-third of the area of proposed Lot 152 and runs along the side boundary of No. 4 Castle Lea Court leading to the cul-de-sac. The overland flow path continues across the roadway of cul-de-sac and then along the public drainage way to a creek somewhere to the north. The easement when seen on the plan in Exhibit 1 folio 146 is the only outlet for stormwater from the Anglican Retirement Village that is contained in its own valley with head catchment on Castle Hill Road.
4 The easement has a 1.5 m diameter pipe under the overland flow path.
5 The evidence is that overland flow would only occur during storms greater than the one in fifty years.
6 The new home on Lot 152 is two-storeys in the style of “rooms in the roof” and it is about half the floor space of the existing house on Lot 151, and by eyesight estimation about half the size of all the other houses in the cul-de-sac. It is confined to that part of Lot 152 that is out of the drainage easement. Evidence is that this area is about 300 sq m. In spite of this the only two numeric non-compliances raised are:
- the rear setback minimum of 3 m is not met, whether the rear boundary is the common boundary with Lot 151 or the boundary with the Anglican Retirement Village.
- The second non-compliance is the fact that the proposal is two-storey when one-storey is required under the Development Control Planfor battleaxe lots.
7 It is usual for a battleaxe lot to be odd shaped and they are usually larger than those lots with full street frontage. This is to give separation from neighbours as battleaxe lot houses are usually surrounded by other houses. This proposal is not quite surrounded by other houses.
8 The nearest villa homes on the Anglican Retirement Village are some distance away behind the row of boundary vegetation. Nevertheless I was told, and it was not disputed, the Village could extend new units down close to the boundary in the future.
9 Due to the short cul-de-sac of Castle Lea Court, the backyards of several houses faced towards the proposed new house. Notably No. 4 Castle Lea Court owned by the Varnish’s and No. 9 Westminster owned by the Arora’s. They and several other owners including the Anglican Retirement Village had objected to the proposal.
10 Issues are:
- 1. The proposed development is contrary to Objective (c) of the Residential A (Low Density) Zone of Hornsby Local Environmental Plan 1994 in that it does not provide for development that is within the environmental capacity of the low density residential environment.
2. The development is inconsistent with the "Objectives" of Council's Residential Subdivision Development Control Plan in that:-
- (a) It does not enhance the established character of the low density residential area, and
(b) It does not provide development that relates to site conditions.
- i) The proposed development would result in lots of a size below the prevailing character of the area;
ii) The proposed development would result in the creation of a proposed Lot 152 with a dwelling house on it which is inconsistent with the prevailing subdivision pattern of the area;
iii) Proposed Lot 152 is constrained by an overland flow path and drainage easement; and
iv) The design of proposed Lot 152 is irregular in shape and atypical of the general character of the area.
(a) Was deleted.
- (b) To provide useable areas, lot sizes should be increased where sites are steep or contain significant landscape features including watercourses and easements.
- i) Was deleted.
ii) The construction of the proposed dwelling on proposed Lot 152 will result in a dwelling "hard up" against the private open space of the existing dwelling on Lot 151 resulting in an unacceptable visual impact, inadequate rear setback and inadequate landscaping around the curtilage of the proposed dwelling on proposed Lot 152.
- a) The lot layout and area does not mitigate environmental impacts on adjacent properties;
b) Was deleted.
6. Whether the proposed development complies with the "Setbacks" Element of the Residential Subdivision Development Control Plan and the Dwelling House Development Control Plan as the rear setback is inadequate and does not comply with the 3 m requirement of both Development Control Plans.
7. Was deleted.
8. The proposed development does not comply with the "Landscaping" Element of the Residential Subdivision Development Control Plan and Dwelling House Development Control Plan as it does not provide for sufficient setback between the proposed dwelling on Lot 152 and the existing open space area and dwelling on Lot 151 to enable landscaping to mitigate adverse visual impact.
9. The proposed development is inconsistent with the objectives of the Dwelling House Development Control Plan in that it does not:-
(a) Was deleted.
- (b) Enhance the established character of the area; and
(c) Ensure the development relates to site conditions.
- i) The proposed development would result in lots of a size below the prevailing character of the area;
ii) The proposed development would result in the creation of a proposed Lot 152 with a dwelling house on it which is inconsistent with the prevailing subdivision pattern of the area;
iii) Proposed Lot 152 is constrained by an overland flow path and drainage easement; and
v) The design of proposed Lot 152 is irregular in shape and atypical of the general character of the area.
11. The proposed development does not comply with the "Height" Element of the Dwelling House Development Control Plan in that the dwelling house on Lot 152 does not comply with the single-storey requirement for battleaxe allotments.
12. Whether, having regard to the matters raised by the objectors that the application should be refused.
Particulars
- i) Inadequate rear boundary setback;
ii) Loss of privacy;
iii) Impact on the character of the area;
iv) Inconsistency with prevailing subdivision pattern;
v) Devaluation of property prices;
vi) Easement restrictions;
vii) Visual outlook; and
viii) Parking.
11 The hearing was attended on site for the applicant by:
- Mr G McKee, solicitor
- Mr R Burrough, applicant and
- Ms H Burrough, owner
12 The respondent was represented by:
- Mr T Pickup, solicitor,
- Mr G Treadwell, resident and objector of No. 1 Castle Lea Court,
- Mr R & Mrs J Varnish, resident objectors No. 4 Castle Lea Court, and
- Mr R C Arora, resident and objector of No. 9 Westminster Road.
13 It was agreed that the Court should appoint an expert town planner Ms Kerry Gordon and her report is in Exhibit E. Her report is in summary, and subject to conditions, favourable to the applicant. In reading it I note the following:
14 In cl 2.7 Ms Gordon noted that the proposed dwelling on Lot 152 is the only likely source of impact on the privacy, solar access, or visual bulk with regard to adjoining properties and as such the existing dwelling on Lot 151 will not be addressed. It seemed to me that the only matter I should look at further was visual bulk, and that in fact the existing house on Lot 151 did play a role in the cumulative impact on neighbours when seen from their properties as a continuous line of building that included the proposed new house and the existing one.
15 Clause 2.12 in regard to acoustic privacy, Ms Gordon said the location of the driveway on proposed Lot 152 in proximity to the dwelling No. 4 Castle Lea Court is not unusual in a suburban context, and given limited use of the driveway will not result in the unacceptable acoustic impact. In seeing the situation, and hearing the objections of the neighbour at No. 4, the proposed driveway to the new house is directly underneath their master bedroom windows and the existing driveway to the existing house on No. 4 is possibly half of the allotment width away on the other side of the subject lot from the master bedroom window. It seems to me that there would be an increase in acoustic impact because there would be two driveways, and two houses where there was one previously.
16 Clause 2.15 says the proposed dwelling represents a single storey façade when viewed from the rear yards of No. 4 Castle Lea Court and No. 9 Westminster Drive. The setback from their boundaries being between 6.5 m and 14 m. Ms Gordon considered such presentation is not unacceptably bulky.
17 At the on-site hearing, a height pole was erected, as apparently had been done previously. It was found that the ridge height of the roof when seen from No. 4 in their backyard would be higher than the second storey eaves gutter of the existing house on No. 6. The garage roof ridge would be at about the same height as the second storey eave gutter of No. 6. The overall height must be at the upper end of what might be considered a reasonable height for a single storey building with a very tall roof. The visual impact of the house would be that the garage commences adjoining the southern brickwork of the existing house at No. 6 and extends all the way to the back fence except for the setback that is non-complying with the Development Control Plan.
18 In cl 2.19 Ms Gordon concluded that the visual bulk of the proposed house on Lot 152 with 1 m side setback to the boundary with Lot 151 is not an unreasonable side setback, given the open nature of the rear yard of Lot 151 at the rear. It seemed to me such a conclusion is normal where two houses were side by side. However, the offset of the new house and the proposed house would mean that the subject new house would run the full length of the remaining backyard for Lot 152. Given its height, previously described in proximity, it must dominate the backyard for the house on Lot 151.
19 In going to cl 2.21 I looked at the Residential Subdivision Development Control Plan and its objective to enhance the established character of Low Density Residential Areas. Consideration of this was involved with Issue 3 and subsequent clauses referred thereto.
20 And running through them it is only a minor observation to be made that in cll 4.17 and 4.18 Ms Gordon had thought that the area above the drainage easement is the only space that could be used for facilities like a yard shed, a fixed BBQ and clothes drying area is a triangular area adjacent the verandah of the family room of the proposal. It comprises about 50 sq m area and Ms Gordon thought it would be adequate. Looking at the plans, it seemed to me that if those three facilities are the usual found in this residential locality, the 50 sq m would be crammed full with them.
21 Turning to the drainage easement there is technical evidence to show that the rate of inundation is relatively low, although there would still be localised over land flows from adjoining properties that did not enter the drainage system beneath. It is expected that this would only lead to temporary inundation and the applicant had proposed to install two surface inlet pits directly into the 1.5 m diameter drain that would take away the surface water more quickly than at present. There is also intended to be an interception point for overland flow at the fence line with the Anglican Village in order to further reduce this effect. It seems on that basis that the use of the drainage reserve as part of the yard area is feasible. However, it is noted that no structures could be erected in it, nor any substantial vegetation.
22 Finally I come to cll 4.26 and 4.27, which dealt with the established character of the area. Ms Gordon concluded that the applicable ”area” on which to assess character should not necessarily relate to the whole suburb, or be limited to the consideration of Castle Lea Court only. She had adopted an area shown in a position paper written by another town planner Mr Moody.
23 In looking at that document, I saw that it comprises essentially the immediate subdivisional area, around the subject site, and a portion of the Anglican Retirement Village and went as far as far as David Road. Ms Gordon had quite correctly said the Anglican Retirement Village could not properly be considered part of the local character.
24 I find it best to make the comparison on the aerial photo on folio 8 Exhibit 1 and the lot sizes in folio 7. The aerial view in particular goes a little bit further a field than that examined in the position paper by Mr Moody. It shows that the large lots of the locality around Castle Lea Court and the large houses are a particular characteristic in this precinct versus the smaller lots which could be seen east of David Road. It seems to me that whereas there is a variety of allotment shapes due to the local roads following the contours and having cul-de-sacs off them, the established character is as the respondent puts, the large lots, large houses, contiguous backyards that have given open feeling due to the vistas across tops of each others backyards essentially to the vegetation and trees with some house roofs and parts of second storeys.
25 Therefore I turn to the respondent’s submissions on the evidence whereby the following is a summary:
1. That the new battleaxe allotment would be in total area 570 sq m without the access handle or 624 sq m with access handle and the existing house would have on its new lot 762 sq m. The minimum area lot size is 500 sq m so both would meet this minimum. However, as is usual in the planning instruments the adequacy of the minimum must be assessed in each case on a merit basis.
2. The battleaxe lot being 570 sq m in its main body if one took out drainage easement would leave about 300 sq m effective area.
4. The result of the constraints on this allotment is that the new house has to be quite small or modest. Its floor space is about half the size of the existing house on Lot 151.3. The aerial photograph shows large houses and large lots with open backyards is typical in this locality.
5. Whilst being a modest house it still has to be a 2 storey configuration to fit on that part of allotment that is flood free.
6. Still being a modest house, it cannot achieve the required rear setback requirement to give separation from other dwellings. On either assessment of which is the rear boundary that being the common one with Lot 151, or the Anglican Retirement Village, neither is met.
7. Landscaping between Lots 151 and 152 has to be on the existing house larger Lot 151 and none on the eastern side of the battleaxe allotment Lot 152. This emphasises the practical requirements of the Development Control Plan that battleaxe allotments need to be larger than normal are not met. The resulting impact on the private open space of the existing house would be that the new house will run the full length of the rear yard of Lot 151 with 1 m side setback. It must create a hemmed in appearance that would have been highly objected to except that the applicant is the owner of the existing house.
26 I think it is reasonable to have regard to the impact the proposal would have on the existing house and its private open space especially if there is a change of ownership in the future.
27 This further adds to the conclusion that the proposal is contrary to the established character of this locality as relevant under the prime objectives of the Hornsby Dwelling House Development Control Plan on p 2 for this the Lowest Density Residential Zone under the Local Environmental Plan.
28 Therefore the orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties except Exhibits 2, 3, B, C and E.
- 3. No orders as to costs.
_______________________
K G Hoffman
Commissioner of the Court
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