Cameron v Hornsby SC

[2006] NSWLEC 792

Land and Environment Court

of New South Wales

CITATION:

Cameron v Hornsby SC [2006] NSWLEC 792

PARTIES:

APPLICANT
Kenneth Peter Cameron

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10650 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Development Application :- two storey dwelling on a battle axe allotment, floor space ratio, urban design,

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1
State Environmental Planning Policy Application of Development Standards 2004
Dwelling House Development Control Plan
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

11/12/2006

EX TEMPORE JUDGMENT DATE:

12/11/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Creighton, Agent

RESPONDENT
Mr T. Pickup, solicitor
of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Hoffman

11 December 2006

10650 of 2006 Kenneth Peter Cameron v Hornsby Shire Council

JUDGMENT

1 This is a Class 1 Appeal, No 10650 of 2006, between Kenneth Peter Cameron and Hornsby Shire Council in regard to the refusal of development application No 70/2006 for the erection of a two storey dwelling house on a battle axe allotment at 7 Charlotte Road, Pennant Hills (also known as 8 Charlotte Lane).

2 The site is described as Lot 5 DP 229398. The vacant battle axe shaped site has an area of 911 sq m. It is 735 sq m excluding the area of the access handle, with a 3.89 m frontage via the access handle to the eastern side of Charlotte Road and a 27.43 sq m frontage to Charlotte Lane. The site enjoys a northerly aspect. It falls on an average grade of approximately 5% to Charlotte Lane.

3 The application proposes the erection of a two storey dwelling house incorporating a double garage, laundry, study, family room, rumpus room, kitchen, living room and entry porch on the ground floor and five bedroom and a bathroom en suite toilet and walk in robe on the first floor.

4 The area generally consists of a predominance of older style one and two storey low density residential development interspersed with two storey development of a more contemporary style. The site is adjoined to the south-west by existing older style one and two storey residential development and to the north-west by a two storey dwelling house currently under construction at No 1 Charlotte Road. However, this is separated from the subject lot by an intervening vacant lot. Development to the north across a lane way comprises mainly single storey residential development facing George Street and Cecil Avenue with rear access via Charlotte Lane. Most properties have fences and garage doors facing Charlotte Lane.

5 The site is zoned Residential A Low Density under Hornsby Shire Local Environmental Plan 1994. The development is defined as a dwelling house. The proposed development is permissible with development consent pursuant to cl 4 of the statute. Clause 15 requires that development in a Residential A zone not exceed a maximum floor space ratio of 0.4:1 (FSR). The proposed FSR of the development is 0.43:1. The proposal is subject to the provisions of the council’s Dwelling House Development Control Plan and of particular relevance in the issues originally between the parties ware scale, design and height elements. The proposal is subject to the provisions of the Sydney Regional Environmental Plan Sydney Harbour Catchment. However, no issue arises in regard to that instrument.

6 The parties came before the Court with consent orders. The issues previously between the parties were:

(1) The proposed development does not comply with cl 15 of the Hornsby Local Environmental Plan 1994.


Particulars:

(a) The proposed development has a floor space of 0.43:1 which exceeds the maximum floor space of 0.4:1 with the residential A zone.

(b) The objection under State Environmental Policy No. 1 (SEPP 1)I does not adequately demonstrate that this development standard is unnecessary or unreasonable in the circumstances and does not address the draft State Environmental Planning Policy Application of Development Standards 2004 as is required under s 79C(1)(a)(ii) of the E P & A Act.
(2) The proposed development does not comply with the scale element of council’s Dwelling House Development Control Plan


(a) Development is not of a scale compatible with a low density residential environment.

(b) It exceeds the maximum FSR.

(3) The proposed development does not comply with the Dwelling House Development Control Plan


(a) The design proposed is not in keeping with the character of the surrounding area which is typified by a predominance of older style single storey residential developments surrounded by well established trees, gardens and landscaped areas.

(b) The design is inconsistent with and does not enhance the character and amenity of the surrounding residential area and does not reflect and complement the streetscape.

(c) The design of the building is not sympathetic to the topographic constraints for the site.

(4) The proposed development does not comply with the height element of the Development Control Plan


(a) The proposed two storey dwelling house is contrary to the Development Control Plan requirement that development on battle axe lots should not exceed single storey in height. This control seeks development that is designed to prevent overlooking and overshadowing on neighbouring properties with a building bulk that presents as a low scale development when viewed from neighbouring properties.

(b) The proposed development does not comply with council’s requirements in that the two storey elements of the building have windows that overlook neighbouring properties and the height and bulk of the two storey proposal will dominate the visual catchment when seen from the immediate neighbouring properties.
(c) The proposal is not in keeping with the character of the surrounding area which is typified by the predominance of older single storey residential development surrounded by well established trees, gardens and landscaped area.

(d) The topography and area of the allotment are such that a dwelling house could be skilfully designed to meet the reasonable expectations of the occupants whilst at the same time complying with the requirements of the controls.

(5) The proposed development does not comply with the privacy element of the privacy element of the Dwelling House DCP in that the design of the dwelling house will compromise the privacy and enjoyment of adjacent properties.

7 The Court heard evidence on site from Mr B Newbold whom the parties had agreed should be a joint expert and appointed by the Court on the assessment of the town planning issues of the proposal.

8 Mr Newbold said on site that there had been changes to the plans, namely, the living rooms on the upper floor had been deleted and windows of bedrooms that overlooked neighbouring properties had been agreed to have screening devices that would prevent overlooking of neighbours’ back yards. Also screening devices at the ground floor level to patios that would prevent overlooking of back yards of properties in that location.

9 Also, there was a condition agreed to the maintenance of the axe handle of the allotment to Charlotte Road which was not proposed to be used in this design.

10 As one can understand, having a 27 m frontage to Charlotte Lane the fact that the property had an axe handle to Charlotte Road was almost a superfluous component of the allotment.

11 The layout of the land and adjoining allotments around the subject property was unusual in that all of the other allotments had full frontage to adjoining streets and this was the only allotment with a full frontage to the lane way. As a result the subject property was more or less at the rear of all the other allotments which had considerable depth, in the range of 40 to 50 m, being large allotments in this subdivision that probably dated from the 1920’s and 30’s.

12 In regard to the design aspects Mr Newbold said, in relation to the character, compatibility and visibility of the subject site, any of those aspects are limited from the surrounding streets. The site can be seen from Charlotte Road only because No 3 remains a vacant allotment, otherwise the site is substantially screened by existing buildings and mature gardens lining that street. The site cannot be seen from Cecil Avenue or George Street. The site is visible from Charlotte Lane due to its wide frontage but in practice this visibility is limited by the relatively low level of vehicle or pedestrian traffic along that lane.

13 Mr Newbold said of greater significance to the neighbourhood and streetscape character, the proposed development would retain a satisfactory garden curtilage that is capable of accommodating effective landscaping.

14 A landscape plan was tendered at the hearing which Mr Newbold indicated was satisfactory. Again, he said the proposed two storey dwelling would not be inconsistent with either the form or the scale of neighbouring buildings that are situated within direct visual proximity. The relevant neighbouring properties include a three storey dwelling at No 5 Charlotte Road and the substantial two storey home under construction at No 1. The latter was nearing completion and it is elevated above the subject property and is well separated from it.

15 The proposed street façade of the design on the subject property is more elaborate than the immediate neighbours but it does incorporate traditional features of the surrounding dwellings that are important urban design considerations. Mr Newbold feels that the architectural style of the building will fit in with the immediate neighbours and the locality’s mixed architectural character. He made the observation that the design of the floor plan is split level which responds appropriately to the site’s topography.

16 In regard to the height element of the control plan he said the configuration of the subject site does not reflect typical elements of battle axe allotments because it has direct frontage to Charlotte Lane of over 27 m. It does appear from surrounding streets as a second tier allotment that is sited behind street front properties, and due to the irregular subdivision pattern and shape, future development would not inevitably be sited within proximity to the subject proposal. The design of the building is not inconsistent with either the form or the scale of neighbouring buildings within the immediate visual proximity.

17 Given the amendments to the proposal it would not affect any neighbours’ amenity to an extent that would be excessive or unacceptable. By comparison with a compliant single storey dwelling, if the allotment is considered to be a battle axe lot, the proposed two storey development would be substantially more compatible with the exiting character of the surrounding neighbourhood primarily due to the superior garden curtilage that is available on the subject site that can accommodate canopy trees around the dwelling.

18 Also, neighbours’ privacy would be enhanced by more substantial boundary setbacks accommodated by the smaller footprint of the two storey dwelling other than might be available by a one storey dwelling of 0.4:1 FSR. Also, the smaller footprint of the two storey building allows the skewed orientation of the building relative to the site boundaries, both to achieve the split level floor plan and to follow the site’s contours. This enables minimisation of cut and fill and the provision for superior solar orientation of living rooms.

19 In terms of privacy I have already mentioned the screening that has been agreed to for the neighbouring properties, but Mr Newbold also notes that there is over 20 m separation distance between the houses at Nos 5, 9 Charlotte Road and 2 Cecil Avenue from the proposed dwelling. This alone in many cases is considered to be quite sufficient for normal residential amenity in a suburban area.

20 In regard to the State Environmental Planning Policy No 1 objection it seems that the objectives of the FSR is to control the intensity and scale and development of land so that development will be in accordance with the land’s environmental capacity and the zone objectives.

21 The zone objectives of the residential A zone are:

(a) To provide for the housing needs of the population of the Hornsby area.
(b) To promote a variety of housing types and other land uses compatible with the low density residential environment and
(c) To provide for development that is within the environmental capacity of a low density residential environment.

22 Mr Newbold had reviewed the State Environmental Planning Policy No 1 objection filed by the applicant in exhibit B and concluded that the objectives of the FSR control and the zone had been achieved by the design and it was not in conflict with s 5 of the Environmental Planning and Assessment Act and therefore the proposed exceedence should be permitted.

23 The parties tendered consent orders and conditions in exhibit 7.

24 I should mention that the objectors to the proposal, who had brought this particular consideration of the overlooking and shadow aspects of the proposal, had been notified of the intention to enter into consent orders and the date and place of the hearing. None of the objectors appeared to give evidence. Only one, Mr Matthews of No 9 Charlotte Road, had contacted the respondent to confirm that he wanted the condition that had been agreed to for the ongoing maintenance of the vegetation in the unused axe handle of the allotment to Charlotte Road. The objectors had been informed of the additional conditions proposed and it is reasonable to conclude that their objections had now been satisfied.

25 Therefore I find no reason sufficient to refuse the consent orders sought by the parties and the orders of the Court by consent are:

1. The appeal is upheld.
2. Development application 70/2006 for the erection of a two (2) storey dwelling house on a battleaxe lot at 8 Charlotte Lane, Pennant Hills, is approved subject to the conditions in Annexure “A” and “B” hereto.
3. The exhibits are returned except Exhibits A, C, D, E, 1, 2, 5 and 7.
4. No order as to costs.

___________________

K G Hoffman
Commissioner of the Court
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