Drewitt-Smith v Hornsby Shire Council
[2008] NSWLEC 62
•20 February 2008
Land and Environment Court
of New South Wales
CITATION: Drewitt-Smith v Hornsby Shire Council [2008] NSWLEC 62 PARTIES: APPLICANT
RESPONDENT
John Drewitt-Smith
Hornsby Shire CouncilFILE NUMBER(S): 10664 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Subdivision, minimum lot size in sloping topography, character of area, overdevelopment, overlooking, aural impacts. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan No. 20
Hornsby Local Environmental Plan 1994
Dwelling House Development Control Plan.
Sustainable Water Development Control Plan.
Car Parking Development Control Plan.
Planning for Bushfire Protection, NSW Rural Fire ServiceDATES OF HEARING: 12/02/2008
DATE OF JUDGMENT:
20 February 2008LEGAL REPRESENTATIVES: APPLICANT
Mr S. Kondilios, solicitor
of MaddocksRESPONDENT
Mr A. Hudson, solicitor
instructed by Mr T. Flaherty
of Wilshire Webb Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
20 February 2008
JUDGMENT10664 of 2007 John Drewitt-Smith v Hornsby Shire Council
Background.
1 This appeal was lodged against council’s refusal of development application for a 5 - lot subdivision at 202 – 206 Somerville Road, Hornsby Heights.
2 A number of issues were initially identified for the appeal, but the subsequent provision of further details, particularly that associated with ecological impacts, access and drainage satisfied councils requirements.
3 The threshold issue concerns the over-development of the site, relative to the size of the proposed new allotments, within its sloping topography. The associated issues are:
- Amenity of private open space areas.
- Visual impacts.
- Impacts on neighboring properties.
- Aural amenity
4 The site is known as Lots 3, 4 and 5 DP 237647 (Nos 202, 204 and 206) Somerville Rd and has a total area of 2827.5 sq m and is situated on the eastern side of Somerville Rd. The three existing lots comprise:
- No 202; having an area of 943.5 sq m and a stated average gradient of 18.4% towards the rear of the site. It contains a part 2-storey house with rear deck and attached garage.
- No 204; having in the area of 943 sq m and a stated average gradient of 20.8% to the rear of the site. It currently contains a part 2-storey brick dwelling with a timber deck at the rear.
- No 206; having an area of 941 sq m and a stated average gradient of approximately 20.8% to the rear of the site. It contains a part 2-storey residence with timber deck overlooking the rear portion of the site and an attached carport. There are two existing rock ledges traversing the centre of site and an unused in-ground swimming pool is situated towards the rear of the site.
5 The site is surrounded by mainly one and two-storey low-density residential dwellings on large allotments, generally in the order of 950 sq m, within an established landscape setting.
6 There is an existing open drainage system traversing the common boundary between No.s 204 and 206.
7 This development application proposes the subdivision of the rear portion of the existing lots to create 2 additional hatchet-shaped allotments (Lots 4 and 5, which are accessed by a combined driveway) as follows:
- Lot 1; No 206 with a reduced area of 503.4 sq m and retaining its existing vehicular access onto Somerville Road. There is an existing rock ledge in the rear portion of this lot and it has a stated average gradient of approximately 24.5%.
- Lot 2; No 204 with a reduced area of 531.8 sq m and fronting Somerville Rd. It has a stated average gradient of 22% to the rear. The proposal provides car parking spaces in the form of a hardstand area in front of the existing dwelling and access to this lot will be via a central accessway, which provides access to the rear lots.
- Lot 3; No 202 having a reduced area of 608.9 sq m and maintaining its separate access to Somerville Road.
- Lot 4; the new hatchet-shaped allotment to be created at the rear of Lot 1 and having an area of 504.1 sq m, excluding access handle. The proposed lot falls to the rear and has a stated average gradient of 19% and contains a large rock ledge along the western portion of the site. The proposed building envelope for this lot requires the removal of the existing swimming pool.
- Lot 5; the new hatchet shaped allotment, proposed to be created at the rear of the proposed Lots 2 and 3. It has an area of 532.1 sq m, excluding access handle. It has a stated fall of 25% towards the rear and a crossfall of about 16%.
8 The proposal involves the construction of the new driveway over the open drain, incorporating its piping and connection to an existing pit situated along the eastern boundary of the site.
9 The proposal also involves the erection of 1.3m fixed, louvered screens outside the rear decks of the dwellings at No 204 and 206.
Planning Controls.
10 Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River.
11 Hornsby Shire Local Environmental Plan 1994; under which the site is zoned Residential A - Low Density and the proposal is permissible with consent. The stated objectives for this 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 a low-density residential environment.
c) to provide for development that is within the environmental capacity of a low density residential environment.
12 Residential Subdivision Development Control Plan; which contains the controls for residential subdivision within the low density residential zones. The ‘Density Element’ states the following objective:
- To promote a low density residential environment and provide for lots of sufficient size to satisfy user requirements.
13 The performance criteria provides:
Lots are to be of sufficient area to allow for the siting of a dwelling and ancillary buildings including provisions for private open space, vehicular access and parking and to permit solar access.
Lot sizes are required to enable dwellings and driveways to be sited to protect natural or cultural features, and respond to site constraints including topography, bushland, soil erosion, drainage, and bushfire risk.
14 The prescriptive measures include:
- Lots should have a minimum area of 500 sq m...
- To provide useable areas, lot sizes should be increased where sites are steep or contain significant landscape features including watercourses and easements.
- To minimise the potential for overlooking and overshadowing and ensure the amenity of future and adjoining residents, the allotment size on sloping sites should increase as slope increases in accordance with the preferred allotment size graph.
- Lots should enable the construction of a built form which is sympathetic to the established character of the area.
15 The preferred allotment size table in the DCP indicates an increase in lot size as the site gradient increases. For an average site gradient of 0% - 10%, a lot area of 500 sq m is permitted. At an average site gradient of 20%, the preferred minimum area is in the order of 560 sq m.
Dwelling House Development Control Plan.
Sustainable Water Development Control Plan.
Planning for Bushfire Protection, NSW Rural Fire Service.Car Parking Development Control Plan.
16 Detailed expert evidence on the outstanding issues was presented by:
- Mr P Fryar; Manager, Assessments with Hornsby Shire Council,
- Mr A Minto; Consulting town planner for the applicant.
17 A number of objections were made and these were considered in conjunction with the oral evidence of the neighbours given at the view. These objections mainly concerned the overdevelopment of the site and the proposal being out of character with the neighbourhood, loss of privacy due to overlooking, potential disamenity, loss of solar access and increased traffic congestion.
Density
18 The threshold issue concerns the density of the development in terms of the size of the proposed allotments relative to the planning controls for this low density zoning.
19 The planning controls in the LEP provide for a minimum lot size of 500 sq m in this low density zone and the proposal complies with standard. However, this minimum area requirement is qualified by provisions of the subdivision DCP where there is sloping topography.
20 It is obvious from the site topography that these controls are applicable due to the sloping nature of the site and the planners agree with this proposition. However, I note the disparate interpretations of the ‘average site gradient’ control by the respective town planners. The aforementioned slope figures are those contained in the Statement of Facts and Contentions. Mr Minto disagrees with these figures.
21 The main difference is that Mr Fryar has determined the ‘average gradient’ by averaging a representative level on the upper and lower boundaries of the subject lot. This approach yields:
Difference
22 From this, Mr Fryar concludes that 4 of the proposed allotments are significantly under-sized and that in the subject context, they are not of sufficient area to provide useable areas for an appropriate dwelling and prevent overlooking of adjoining properties and future developments. Consequently he considers this a negative aspect of the proposal.
23 Against this, Mr Minto’s says this approach is extremely simplistic and may lead a person not familiar with the site to conclude that each of the sites has a constant slope consistent with the nominated percentage. His alternative application is to “recognise what is actually occurring in the points in between (the highest RL and lowest RL) such as localised areas of changes in levels.”
24 This application identifies 4 separate areas on Lot 4 with gradients ranging from 0-10%, 10-20%, 20-25% and 25-40%. He concludes that the majority of Lot 4 site has a site gradient of less than 15%.
25 Likewise, Lot 5 has the similar 4 areas, together with an additional area of 15-20% gradient. He says that the majority of the Lot 5 site has a slope of less than 20%.
26 Accordingly, Mr Minto says that the majority of changes in level are localised and he considers the size of the sites are appropriate for development in that:
a) They are each capable of supporting either an existing dwelling house on a 200 sq m building envelope,
b) They are each capable of supporting car parking, driveways and turning areas in accordance with the requirements of Council and the applicable for Australian Standards,
c) They are each capable of providing appropriate areas of private open space,
d) The proposal does not require significant modification of land,
e) The proposal does not require the removal of natural rock features,
f) The proposal does not require the removal of significant vegetation,
g) The proposal is capable of being appropriately drained,
h) The proposal would not result in any resort impacts on adjoining properties or existing or proposed allotments, and
i) The proposal will not result in any and recently impact upon streetscape or character of the locality.
27 Having considered these competing positions, it seems to me that the site comprises the three original allotments. They have a relatively uniform downward gradient from Somerville Road to the rear boundary ranging from 18% - 26%. For initial consideration purposes, the gradient is generally in the order of 20%, in my assessment.
28 Reference to the graph indicates all new lots in the subdivision should therefore have minimum lot areas in the order of 550 sq m. As 4 out of the proposed 5 lots are significantly deficient based on Mr Fryar’s more specific calculations for each new lot, this non-compliance indicates the overdevelopment of the site as stated by Mr Fryar.
29 Nevertheless, if a more detailed lot assessment was envisaged by the controls as suggested by Mr Minto, then his slope analysis plan indicates Lot 4 having an average gradient in the order of 15% and Lot 5 having 20%. According to the graph, the preferred minimum allotment sizes are Lot 4 – 530 sq m and Lot 5 – 560 sq m. As such, these allotments still do not satisfy the designated minimum lot sizes. Nor do the new lots 1,2 and 3.
30 Notwithstanding this, I accept that the other qualitative aspects of the controls must be taken into account, considering that the planning controls allow a variety of allotment sizes. This is providing environmental impacts are mitigated and the development is within the environmental capacity of a low density residential environment.
Private open space.
31 In accordance with councils requirements, designated 200 sq m building footprints are shown on proposed lots 4 and 5. However Mr Fryar says that insufficient area remains for the provision of appropriate private open space areas, which have reasonable levels of privacy, utility, and solar access.
32 Regarding Lot 4, Mr Fryar expresses dissatisfaction width of the proposed 5m wide, 149.4 sq m area of private open space located along the northern boundary because it contains rock outcrops with a slope of 25% in the northwestern corner, which limits utility. He says there is only an effective area of 95.5 sq m of private open space, which measures well below the minimum private open space requirement of 120 sq m. Furthermore, the landscaping plan does not show how the constraints of the rock outcrop, 1m boundary planting and stepped terracing result in satisfactory private open space.
33 Whilst Mr. Minto says the private open space is satisfactory, my assessment is that the aforementioned constraints do significantly reduce the amenity of this private open space area, relative to the amenity that is characteristic of this neighbourhood. Accordingly I consider this a negative aspect of the proposal.
34 The private open space on Lot 5 is also restricted to predominantly a 5 – 6m wide strip along the southern boundary. This is reduced by 1m to allow the provision of the boundary landscaping strip. From the building footprint, it appears that a future dwelling would incorporate the living areas on the lower-level with a floor level of RL 178.15. However, this is approximately 2m above the existing boundary level of RL 176, which I consider severely restricts the utility of this open space area due to the need for some form of stair access to the lower level open space area, within the 5m setback. This is required so that unreasonable overlooking opportunities into the neighboring properties is minimised and the desirability of providing a relatively flat area.
35 Under these circumstances, I consider that the private open space area for this lot is also significantly below the amenity generally experienced in this neighbourhood and is not sympathetic to the established character of the area.
36 It also it appears to me that the proposed private open space area for these lots 4 and 5 is concentrated in a relatively narrow 3 – 4m wide strips adjacent to the neighbouring properties, which is not sympathetic to the neighborhood.
Privacy
37 The privacy issue mainly concerned potential overlooking from the existing decks of No 204 and 206 into the open space areas of the new rear lots. It also includes overlooking and noise disturbance opportunities from future new dwellings into the neighbouring open space areas.
38 From my assessment at the view, I accept Mr Minto’s evidence that the provision of fixed, louvered, screens on the eastern elevation of the decks and/or windows can address overlooking to a reasonable extent, taking into account the relative location of the open space areas and separation distances.
39 However, considering the length of such 1.3m high screens on the decks, I do not consider them an attractive element of the development or a characteristic feature of the area. They will restrict the utility of the decks and are required because of the constrained nature of the proposed private open space areas, within the smaller allotments.
Conclusion
40 Having considered the evidence, submissions and undertaken a view, I do not consider this application merits consent because the proposed density represents an overdevelopment of the site and consequently exceeds the environmental capacity of the land.
41 Whilst the planning controls allow a minimum lot size of 500 sq m throughout the shire’s residential zones, this is qualified in the DCP control, which increases the minimum lot size depending on the slope of the land. In my assessment, the subject land is relatively steep land with an average gradient in the order of 20 %. Therefore, it is situated in an area where the minimum area is to be increased.
42 The graph indicates that for an average site gradient in this order, a minimum lot size of 550-560 sq m is required to achieve the desired amenity outcomes. Accordingly, I am satisfied to rely on Mr Fryar’s evidence that 4 out of the 5 lots are non-compliant, representing an overdevelopment of the site and I give this significant weight in refusing this application.
43 I understand the 500 sq m lot size control applies shire wide and this minimum size is more applicable in the flatter areas. Notwithstanding the disparate approaches by the planners in applying the graph, I am also satisfied to rely on Mr Fryars application to determine the average gradient of the site, including the existing frontage lots. In the subject circumstances, I consider this approach is the most appropriate to assess the suitability of the proposed sites for new dwellings, which are sympathetic to the established character of the area.
44 In this regard I note that the planners agreed that the following elements describe the character of this area:
- low density residential environment,
- detached dwellings situated on “900 sq m” type lots fronting the street,
- dwellings situated in landscaped settings with significant setbacks to rear boundaries.
45 This description is generally confirmed by reference to the aerial photos on exhibit 5.
46 In my opinion the proposed lots in the order of 500 sq m, in the sloping topography are not sympathetic to the character of the area. In this regard, I agree with the interpretation by Bly C in Shaw v Hornsby Shire Council where he stated:
- “I understand this provision requires development to be sensitive to its surroundings in terms of character and also in terms of amenity impacts.”
47 Accordingly, I consider the building footprints are significantly constrained by the shape and area of the new lots to provide associated satisfactory levels of amenity and utility for private open space, privacy and overlooking, which is characteristic of this area. Instead, I accept the neighbour’s opinion that future open space areas would be more characteristic of the courtyards that are commonly provided in medium density townhouse developments and this is not the desired outcome of planning controls all this area.
48 As I have stated previously, I rely on Mr Fryar's evidence that future built form on the new rear lots is likely to be compromised in terms of satisfactory open space, overlooking and privacy. Whilst these concerns may be overcome in a detailed design, no such designs were available to the Court for assessment of these impacts on this steep, environmentally sensitive site.
1. The appeal is dismissed.
2. Development consent to DA/1718/2006 for a 5 lot subdivision of Lots 3, 4 and 5 DP 237647 Somerville Road, Hornsby Heights is refused.
3. The exhibits may be returned.
___________________
- R. Hussey
Commissioner of the Court
ljr
0
0
7