Daly v Hornsby Shire Council

[2007] NSWLEC 745

Land and Environment Court

of New South Wales

CITATION:	Daly v Hornsby Shire Council [2007] NSWLEC 745
PARTIES:	APPLICANT Phillip Daly RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10957 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of two existing dwellings and the erection of a medium density residential development - compliance with Masterplan - future access - loss of privacy - private open space
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 1994
DATES OF HEARING:	31/10/07
DATE OF JUDGMENT:	1 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC SOLICITORS Gadens Lawyers RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

1 November 2007

10957 of 2006 Phillip Daly v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of DA 1007/2005 for the demolition of two existing dwellings and the erection of a medium density residential development at 3 and 5 Turner Road, Berowra Heights (the site).

The site

2 The site comprises two battle-axe allotments with a total site area of 2,498 sq m. The property at 3 Turner Road is described as Lot 8 in DP 232401 and 5 Turner Road is described as Lot 3 in DP 223291. The site is relatively flat with a fall of approximately 1.5 m from the southern corner to the northern corner. The access handle has a more noticeable slope, falling towards the street at an average grade of 6%.

3 The improvements on the site comprise two single storey dwelling houses with detached fibro garages. The site also contains a few trees, located along the boundary line. The surrounding development comprises the Berowra Village shopping complex to the south and low-density residential dwellings on other sides and on the opposite side of Turner Road.

4 The adjoining residential sites are similarly zoned and have the potential of being developed to a similar capacity as the site in the near future under the current zoning. The Berowra Marketplace is also located in close proximity to the north of the site.

The proposal

5 The proposal provides for the construction of a medium density residential development, comprising 10 x 2 storey townhouses with associated parking and landscaping. The ground floor comprises the primary living areas directly linked to a rear yard and kitchen. The first floor comprises three bedrooms and a balcony. All townhouses are provided with a single lock-up garage and an open car parking space in front of the garage in a stacked parking configuration.

Relevant planning controls

6 The site is zoned Residential B (Medium Density) under Hornsby Local Environmental Plan 1994 (LEP 1994). The use is defined as multi-unit housing and is permissible with consent within this zone. Clause 15 provides that development is not to result in a building that exceeds a floor space ratio (FSR) of 0.6:1 within this zone. The proposal complies with this requirement, having, a FSR of 0.5:1.

7 The site is located within the catchment of the Hawkesbury-Nepean River and as such is subject to the provisions of Sydney Regional Environmental Plan No 20 although no issues were raised in relation to this document.

8 The proposal is also subject to the provisions of the council’s Medium Density Multi-Unit Housing Development Control Plan (the Multi-Unit DCP) with particular reference to the requirements relating to setback, privacy, solar access, open space, landscaping, vehicular access and parking. The Housing Strategy Precinct Master Plan element is relevant and of particular relevance is the Turner Road Commercial Centre Master Plan (the Turner Road Master Plan). The site falls within Area 2 of this master plan area.

9 The proposed development is also subject to the provisions of the Berowra-Cowan Development Control Plan, the Car Parking Development Control Plan, Access and Mobility Development Control Plan and Waste Minimisation and Management Development Control Plan.

The issues

10 The Statement of Issues originally raised 14 issues although with the submission of amended plans that reduced the number of townhouses from 11 to 10, issues with visual amenity (Issue 6), traffic safety, access and parking (Issue 9), garbage (Issue 10) and insufficient information (Issue 13) were deleted. Following further plans and consideration by the Court-appointed town planning expert, Mr Chris Young, issues relating to, privacy (Issue 2), solar access (Issue 3), landscaping (Issue 5) and adaptable dwellings (Issue 12) were not pressed.

11 The remaining issues relating to open space (Issue 4), the Turner Road Master Plan (Issue 5), sight distances for vehicles (Issue 8) remained active although they were limited in their extent.

12 The remaining issues can be summarised as:

1) whether the size and seperate private open space areas are acceptable, considering the size of the dwellings, and
2) whether the front courtyard walls limit sight distances for vehicles entering and leaving the designated car parking spaces.

13 Issue 14 addressed matters raised by local residents. The major issues not addressed elsewhere in the judgment relate to:

1) non-compliance with the requirements of the Multi-Unit DCP and the Turner Road Master Plan;
2) future access rights for other owners in Area 2 of the Turner Road Master Plan;
3) additional traffic;
4) out of character and over-development.
Open Space

14 The issue of the adequacy of the private open space centred on the requirements of the Multi-Unit DCP. The Open Space element provides that for a large dwelling, i.e., 85 to 125 sq m of floor area, a minimum of 60 sq m of private open space needs to be provided. For an extra large dwelling, i.e., greater than 125 sq m, 80 sq m of private open space need to be provided.

15 Only dwellings 1 to 7 are in issue as dwellings 8 to 10 have private open space in excess of 80 sq m thereby satisfying the open space requirements for an extra large dwelling. Dwellings 1 to 7 have floor areas that range from 125.13 sq m (Dwelling 1) to 127.87 sq m (Dwelling 4). Private open space areas range from 61.5 sq m (Dwelling 1) to 68.8 sq m (Dwelling 7).

16 Mr Young maintained that the dwellings should be reduced in size to 125 sq m to satisfy the requirements of the Multi-Unit DCP for private open space. While the variation to the 125 sq m requirement was small, Mr Young was of the view that as this was the first application in the Turner Road Master Plan area, strict compliance would set a desirable precedent for later development.

17 Ms Levy, the applicant’s town planner, states that the difference between the sizes of the proposed development and the 125 sq m standard in the Multi-Unit DCP are so small as to be unnoticeable and have no impact.

18 On this matter I agree with Ms Levy. While the dwellings could be reduced in size to satisfy the 125 sq m requirement, I accept that it would have no practical effect. Mr Young’s view, while not being without some merit, would have more force if the departures from the 125 sq m requirement were greater.

19 An issue was also raised over the use of two separate private open space areas, one area being located in front of the dwelling and the other at the rear of the dwelling however I am satisfied that this is appropriate and consistent with the requirements in both the Multi-Unit DCP and also the Turner Road Master Plan.

Height of courtyard walls

20 The other issue raised by Mr Young was the height of the walls for the front courtyard adjoining the stacked car parking spaces for the dwellings. In his view, the height of the walls around the front private open space areas should be limited to 1.2 m in height to allow adequate sight distance for people manoeuvring cars out of the stacked spaces. A wall of 1.2 m in height would, however, limit the privacy of these open space areas.

21 On this issue, I agree with Mr Young. There is some merit in his assessment, notwithstanding there is no appropriate Australian Standard to measure the proposal against. The potential conflict between passing vehicles and vehicles leaving the stacked spaces is a valid concern. There are also some benefits in a lower wall in this location, as it will allow greater solar penetration to the front courtyards; the rear courtyards receiving little solar access. Also a lower wall will create a less of canyon-like effect along this section of the internal roads.

Resident concerns

22 In terms of residents’ concerns, the Court heard evidence on site from:

• Mr John Farquhar, the Chairman of the Berowra and District Community Association Incorporated,
• Ms Marie Wilson on behalf of Ms Judy Webb, the owner of 7 Turner Road,
• Mr Robert and Mrs Yolanda Ledger of 11 Turner Road and
• Ms Sonia Ball of 1 Turner Road.

Future access

23 A significant issue raised by the local residents and also by the council, (through draft conditions 51 and 52) was the future access to the remaining undeveloped lots within Area 2 of the Turner Road Master Plan. The Turner Road Master Plan provides that the access proposed for the subject application will also provide access to the remaining undeveloped lots. This requirement is to minimise the number of access points to Turner Road.

24 Put simply, the residents required that, as part of this application, arrangements should be made to provide access to the remaining undeveloped sites. The council sought, through conditions 51 and 52, the creation of reciprocal Rights-of-Access over the driveway and internal roads for access to the undeveloped lots and also the creation of a Right-of-Footway for access to that part of Area 2 to the south-west.

25 The applicant opposed conditions 51 and 52. Mr Galasso SC submitted that the proposed development addressed the critical components of the Turner Road Master Plan by providing the opportunity for pedestrian and vehicle access to the remaining undeveloped sites in Area 2. There should be no further obligation on the applicant. He further submitted that the use of the applicant’s property for future access should be the subject of negotiation between the applicant and the adjoining owners when redevelopment of other properties in Area 2 is contemplated. At this stage there is no indication that development of these adjoining properties is being considered.

26 If negotiations are not successful Mr Galasso submits that opportunities are available through s 40 of the Land and Environment Court Act 1979 or proceedings in the Supreme Court of New South Wales under s 88K of the Conveyancing Act 1919 to obtain the necessary access required by the Turner Road Master Plan.

27 On this issue I agree with the submissions of Mr Galasso. In my view, the critical issue is whether the proposed development makes provision for the future access to the other land in Area 2 land in accordance with the Turner Road Master Plan. The answer is clearly yes. It is reasonable and appropriate that the future redevelopment of the adjoining land negotiate the right of access over the applicant’s land. It is clearly not appropriate that rights over the applicant’s land be given away at no cost at this time, particularly when this requirement does not directly relate to the proposed development.

28 The Multi-Unit DCP and the Turner Road Master Plan do not require the creation of any access rights to adjoining land, only that the proposed development makes provision, by way of the layout of the proposed development, for this access. Consequently, conditions 51 and 52 are deleted.

Non-compliance with the multi-unit development control plan

29 The non-compliance with the Multi-Unit DCP and the Turner Road Master Plan were raised by a number of residents. Their particular concerns were non-compliance with the setbacks, the amount of landscaping and the loss of privacy. The Multi-Unit DCP provides (at p 2):

The housing strategy precinct master plan’s element of this DCP prevails over the remaining provisions of this DCP in the event of any inconsistency.
Landscaping

30 The landscaping element of the Multi-Unit DCP provides that 50% of the site is to be landscaped. The proposal provides around 30%. The Turner Road Master Plan does not require the same level of landscaping as the Multi-Unit DCP although there are no numerical requirements.

31 Mr Young, in my view, correctly addresses this issue by stating that it would be almost impossible to achieve the level of landscaped area required by the Multi-Unit DCP and still provide the yield of 9.5 dwellings advocated in the Turner Road Master Plan. As preference should be given to the Turner Road Master Plan requirements, I agree with Mr Young that the provision of landscaped area is adequate in these circumstances. I am also mindful that the site consists of two battle-axe lots with a considerable portion of the site given over to the access handles.

Setbacks

32 The setback requirements between the Multi-Unit DCP and the Turner Road Master Plan are also in conflict. The compliance with the Multi-Unit DCP requirement of a 3 m setback would effectively reduce the yield from that contemplated by the Turner Road Master Plan by at least two dwellings. As preference should be given to the Turner Road Master Plan and there are no significant amenity issues raised by the reduced setback, I agree with Mr Young that the setbacks are adequate.

33 I am comforted in this view when the proposed development is tested against the setback objectives in the Multi-Unit DCP the objectives are met.

Privacy

34 The issue of privacy was raised by a number of residents, however with some amendment to the window design in Dwelling 1 to reduce overlooking I am satisfied that the loss of privacy is not an issue.

35 In other areas, adequate separation is provided and taking in consideration the use of the upstairs rooms as bedrooms and the likely future use of the adjoining land as higher density residential development, I am satisfied there are no privacy issues that would warrant the refusal or amendment of the development application.

Traffic

36 Local residents raised concern over additional traffic generated by the proposed development. In the absence of any expert evidence to suggest that the proposal would have an unacceptable impact on traffic and safety, I am satisfied that the traffic is not an issue that warrants further consideration.

37 Importantly, the access arrangements and density are consistent with the requirements in the Turner Road Master Plan. I also note that the council staff in their consideration of the development application considered this issue and found it to be satisfactory.

Out of character and over-development

38 I am satisfied that this concern is unfounded as the proposal satisfies the majority of the development requirements for the Turner Road Master Plan, particularly density, FSR, height and general layout.

39 The form of development is clearly consistent with the form envisaged by LEP 1994, the Multi-Unit DCP and the Turner Road Master Plan notwithstanding the conflict between some provisions.

Orders

40 For the reasons mentioned above the Orders of the Court are:

1) The appeal is upheld.
2) DA 1007/2005 for the demolition of two existing dwellings and the erection of a medium density residential development at 3 and 5 Turner Road, Berowra Heights is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 2, 10, A and B.

___________________

G T Brown
Commissioner of the Court