Farrugia v The Hills Shire Council

[2021] NSWLEC 1259

Land and Environment Court

New South Wales

Medium Neutral Citation:

Farrugia v The Hills Shire Council [2021] NSWLEC 1259

Hearing dates:

6-7 May 2021, final submissions 12 May 2021

Date of orders:

19 May 2021

Decision date:

19 May 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Development Application No. DA 794/2020/ZA for subdivision creating two residential lots including demolition at Lot 6002 DP 817992 (known as 4 Craigton Place and 122 Gilbert Road Glenhaven) is refused.

(3) The exhibits are returned with the exception of Exhibits 2 and A-K.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – infill development – neighbour amenity – visual impact

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.7
Environmental Planning and Assessment Act 1979, s 8.7
Land and Environment Court Act 1979, s 34AA
The Hills Local Environmental Plan 2019, cl 4.1

Cases Cited:

New Century Developments Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Texts Cited:

The Hills Local Development Control Plan 2012

Category:

Principal judgment

Parties:

Fiona Farrugia (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
S Kondilios (Solicitor) (Applicant)

Solicitors:
McKees Legal Solutions (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2020/337551

Publication restriction:

No

Judgment

1. This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by The Hills Shire Council (Council) of Development Application No. DA 794/2020/ZA. The development application (DA) seeks consent for land subdivision and certain associated matters on land that Council knows as 4 Craigton Place, Glenhaven. The applicant believes the site is better described as 122 Gilbert Road. Nothing of particular importance hangs on this street address description as it is agreed that the legal property description is Lot 6002 DP 817992 (site). The site is an irregular shaped battle-axe lot and has frontage to Craigton Place and Gilbert Road.

2. The site would be divided into two lots. There is an existing two-storey dwelling on the northern half of the site. The existing dwelling would be on proposed Lot 2 and continue to enjoy access from the battle-axe handle to Craigton Place. Proposed Lot 1 would have access via Gilbert Road. Other aspects of the proposal include: identification of a building platform for a future dwelling on Lot 1, demolition of a portion of the existing dwelling on proposed Lot 2 in order to facilitate this platform, provision for a new deck as an extension to this existing dwelling, certain stormwater management works, alterations to existing access off Gilbert Road and the removal of certain nominated trees.

Setting

3. The total area of the site is 1,752m². The site’s principal access is from Craigton Place, although there is a vehicle crossing and gateway to Gilbert Road.

4. The adjoining property to the north contains a two-storey dwelling. The adjoining property to the east contains a two-storey, strata-subdivided dual occupancy.

5. Gilbert Road adjoins the site on the southern boundary. Adjoining the site to the east is a Council reservation (Reservation). Mature native vegetation is prominent in the Reservation which according to Council’s bundle of documents (Ex 7, p 51) is mapped as Blue Gum High Forest, a Critically Endangered Ecological Community, as listed under the Biodiversity Conservation Act 2016. The Reserve also plays significant stormwater and flooding management functions.

6. The site, along with neighbouring residential properties, enjoy a garden setting, with pleasing outlooks towards the Reservation and its treescape. The site and nearby residential land are zoned R2 Low Density Residential under The Hills Local Environmental Plan 2019 (HLEP).

7. The zone objectives are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing low density residential character of the area.

8. Of relevance is cl 4.1 which provides for minimum subdivision lot sizes, with a minimum lot size of 700 m² applying to the site. The proposal would meet the requirements of cl 4.1 of HLEP.

9. The Hills Development Control Plan 2012 (HDCP) applies to the site. A number of provisions are pertinent.

Proceedings

10. The appeal was subject to mandatory conciliation on 6 May 2021, in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act). The proceedings commenced with a site view and the hearing of submissions from objectors. The parties were unable to reach agreement in the time available, as a consequence, and in accordance with s 34AA(2)(b) of the LEC Act, the conciliation conference was terminated and a hearing was held forthwith. The parties consented to objector evidence heard on site, along with evidence from the various experts during the site view, forming part of the evidence in the proceedings.

Objector evidence

11. There was the opportunity to hear from objectors on site, with the Court having the benefit of being able to observe the potential implications of the proposal from within a number of the nearby properties. The concerns of objectors fell into five main categories, mostly related to potential adverse effects of a proposed future dwelling. These were: (1) loss of the visual presence and wider sense of proximity to trees and nature currently experienced, (2) amenity impacts relating to privacy, visual impact or loss of quiet ambience from outdoor areas, (3) traffic concerns with the proposed direct access to Gilbert Road, (4) seeking to ensure compliance with the current HDCP 18m setback control to Gilbert Road, and (5) flooding and stormwater management concerns, noting the proximity of the adjacent stormwater management and flooding infrastructure within the Reserve. Some of these issues aligned with the contentions pressed by Council, others needed separate attention, whereby I was assisted by the experts.

Experts

12. The experts providing evidence to the proceedings are outlined in the table below.

Expert	Expertise	For
A Minto	Town planning	Applicant
P Hurley	Town planning	Respondent
K Lindsay	Ecology	Applicant
E Roper	Ecology	Respondent
R Jackson	Arboriculture	Applicant
R Campilongo	Arboriculture	Respondent
B Kenny	Stormwater engineering	Applicant
C Hopfe	Stormwater engineering	Respondent

Issues

13. Firstly I would say that a number of the contentions which arose with the original application were addressed through amendments to plans to the satisfaction of the experts. Expert reports from the ecological, arboricultural and stormwater specialists, each indicated that the proposal, as amended, addressed contentions previously raised. There had been some cross-disciplinary analysis to effect these agreements, including in the particulars of the stormwater management provisioning and through agreed limitations to the size of a proposed deck to the existing dwelling, both aimed at protecting trees. While neighbours were not so satisfied in regard to matters associated with stormwater and flooding, or the limited remaining tree removal, or traffic (seen as satisfactory from Council as it was not raised in contentions); I take the position that these issues are addressed, mindful of New Century Developments Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 at [61]-[64] (per Lloyd J).

14. The remaining contentions pressed by Council were:

• The setback to the potential building platform on proposed Lot 1 does not comply with the minimum setback of 18 m to Gilbert Road.

• The proposed development does not provide a suitably sized building platform in accordance with the requirements of the HDCP.

• Proposed Lot 1 does not comply with the minimum lot depth required by the HDCP.

15. Mindful of the contentions pressed by Council and the remaining neighbour objections, I can summarise the issues I need to attend to in this judgment as follows:

1. 18m setback provisions to Gilbert Road contained in HDCP.

2. Character compatibility – here I include concerns about maintaining the existing low density residential character, “restricted development area” provisions in HDCP and the sufficiency of the proposed building platform.

3. Neighbour amenity impacts – here I include more direct concerns relating to local amenity including privacy and visual impact.

18m setback to Gilbert Road

16. Mapping contained at Part B Section 2 of HDCP (in particular Sheet 3 of 46) includes the repeated use of the following text, along the alignment of Gilbert Road:

“Provision to be made for future access

18 metre building line”

17. This marking on Sheet 3 runs along the length of Gilbert Road in the immediate vicinity of the site.

18. The proposal provides for a future building platform on proposed Lot 1, setback some 10 m from the Gilbert Road reservation boundary, thus contravening the requirement indicated by text on Sheet 3.

19. Council’s Statement of Facts and Contentions (Ex 1) indicated that Council had undertaken investigations into the “practicality of the 18m setback requirement” and it was appropriate to enforce the requirement for three reasons (ibid, p 6):

“1. Where direct driveway access to Gilbert Rd was approved for individual accesses, the setback would allow future construction of a service road to replace those multiple access points with one or two accesses at each end of the service road. If the lot has alternative access to another street with the driveway leading to that street, there will be no need for a future service road.

2. Where significant embankments exist to either support the road on the low side, or support private property on the high side, the setback would ensure future integrity of that embankment, and access is available for maintenance and construction activity.

3. The 18m setback provides a reasonable area for traffic noise mitigation if the road becomes a sub-arterial route, and the 8 tonne load limit is removed. No habitable dwelling should therefore be built in that area”.

20. The applicant’s town planning expert, Mr Minto, did not think it reasonable to require compliance with the 18 m setback because: (1) the HDCP mapping predates HLEP and there are no provisions for land acquisition in HLEP, or by way of any restriction or easement on the title of land, (2) there is no particularisation of the intentions for the provisioning for future access elsewhere in HDCP and (3) there are already many buildings within the 18m setback area.

21. Council’s planning expert, Mr Hurley, responded as follows (Ex 3, p7):

“xii… the 18metre setback is intended to accommodate a future service road in the event that Gilbert Road becomes a heavy vehicle bypass road around the Castle Hill town centre.

xiii. I am advised by Council Officers that presently there are no road designs. I also acknowledge that there are topographical constraints and/or physical barriers that would need to be addressed if a service road were to be constructed.

xiv. However, this DCP control allows for a future scenario to be considered should it need to be implemented and consequently a lack of detail in the DCP such as in this instance, an actual road design and/or program for acquisition is not in my opinion sufficient reason to vary or abandon the control.

xv. From my review of an aerial map of Gilbert Road illustrating an 18metre offset line (refer Annexure C) the 18metre setback has been consistently applied to those properties with direct access to Gilbert Road.”

22. The evidence in the proceedings drew attention to a number of other factors which had particular relevance to the likelihood of future road widening involving the subject site. The points were concerned with the practicalities of undertaking significant road widening in this particular vicinity. It was obvious that widening of the road in this vicinity would require a culvert or bridge, crossing the existing significant gulley or creekline in the Reserve to the west. A key issue here was in regard to the biodiversity values within these Reserve lands (see [5]). Both Ex 1 and the joint report from the ecological experts (Ex 6) indicate that these lands within the Reserve are relevantly mapped in the Biodiversity Values Map published by the Department of Planning, Industry and Environment (Ex 6, p 3). As I understood it, if engineering works required clearing or modification of a native vegetation from an area that is so mapped, then the development would constitute a significant impact under s 7.7(2) of the Biodiversity Conservation Act 2016 (ibid). Council’s ecological expert seemed to make clear to me, on site, that there would be significant hurdles involved in the required clearing for a widening of Gilbert Road in this particular locality. A second factor in this particular location was the existence of a large residence at the corner of Gilbert Road and Glenshee Place, that is in the immediate vicinity of the site, which was located well within the 18m setback area.

Character compatibility

23. Clause 2.3 of HDCP is reproduced in part as follows:

“2.3. RESTRICTED DEVELOPMENT AREAS

OBJECTIVES

(i) To protect sensitive land from development in order to retain natural drainage channels, vegetation and topographic features in accordance with Council’s ESD Objective 6.

(ii) To reduce the risk to development arising from geotechnical constraints.

DEVELOPMENT CONTROLS

(a) Development is to be limited at specified environmentally sensitive locations as identified on the locality maps for this Section of the DCP (Part B Section 2).

…”

24. Restricted development areas are marked on mapping at Part B Section 2 (in particular Sheet 3 of 46) and, so far as the site is concerned, would not allow the building platform as proposed.

25. Council acknowledges that the fact that there was agreement on the part of the experts in regard to certain matters associated with ecology, arboricultural factors and stormwater has the effect of addressing the objectives which HDCP’s “Restricted Development Areas” controls are concerned with.

Building platform

26. Council says the proposal does not meet HDCP requirements in regard to the provision of a suitably sized building platform (Ex 1, p 10):

“Proposed lot 1 is an irregularly shaped lot which results in an irregularly shaped building platform. The potential building platform does not comply with Clause 2.13.2 (a) of the DCP which requires a building platform of at least 20 metres by 15 metres. A building platform with these dimensions would result in an area of 300 square metres. The irregularly shaped building platform proposed provides an area of 278 square metres. The indicative building platform does not achieve the minimum dimensions required by the DCP.”

27. The applicant provided evidence, by way of an indicative floorplan provided by Mr Minto, demonstrating that proposed Lot 1 could accommodate a four bedroom double garaged dwelling with a total floor area of 289 m².

28. In his evidence Mr Hurley pointed to the objectives of the relevant DCP provisions (clause 2.13.1):

“i) To provide allotments of a size conducive to residential living, having regard to any development constraints or environmental qualities of that land; and

ii) To ensure allotments have sufficient area to provide adequate access, open space, a sufficient building platform and attractive presentation to the street”.

29. I understood Mr Hurley’s evidence to be less in regard to the capacity of the building platform as proposed to provide a “conducive” building area and more that the proposed building platform constrains the capacity to provide suitable boundary setbacks.

Amenity concerns

30. In consideration of the submissions from objectors that the proposal would bring about adverse impacts by way of visual intrusion or loss of outlook, I must say that, for the most part, the evidence was not there to support the submissions. That is, when standing or looking out from private areas on neighbouring properties to the north, it seemed unlikely that the proposal would have any significant effect at all. I note here that earlier iterations of the plans seemed to have involved more significant tree loss than now proposed.

31. There is one significant exception. There was the opportunity to inspect from 2A Craigton Place, the property immediately east, which shares a quite long boundary with the site. The rear open space and outdoor terrace on the south and west of this property was suggested to be of significant value to the occupants, given its ready orientation towards the Reserve and the pleasing outlook available to the mature native vegetation within it and generally towards the west and south-west. The outlook is partly constrained by existing vegetation on the boundary (ie within 2A Craigton Place) towards Gilbert Road. The concern was that there would be a loss, or reduction, of the pleasing outlook to the west and south-west, which would be replaced by a two-storey residence in quite close proximity to the boundary (with the building platform plans indicating a 900mm offset to this boundary).

Consideration

Character and amenity concerns

32. In relation to the R2 zone objectives Council pressed the third objective concerned with “maintaining the existing low density residential character of the area”. Council also acknowledged that the proposal involved the third zone objective concerned with “providing for the housing needs of the community in a low density environment”, and suggested there was a tension between these two objectives with this application.

33. For me this is a good summary of the tension involved in the assessment of this application more generally. I am not satisfied that the proposal, as before me at least, is in alignment with the third zone objective. Alignment with zone objectives of this kind are not mandatory requirements. However, it was Council’s position that the proposal was “too tight”. I agree so far as the building platform setback to the boundary with 2A Glenshee Place is concerned.

34. When I raised a concern about the potential impact on the amenity enjoyed from 2A Craigton Place as a consequence of future building massing in accordance with the proposed building platform, Mr Minto indicated there was some space available between this proposed building platform (on proposed Lot 1) and the existing residence (on proposed Lot 2) to allow planting to effect some screening. Mr Minto suggested a certain species (Blueberry Ash) which would, in his opinion, bring about a reasonable outcome, reducing the visual impact of a proposed two-storey dwelling in this location. Mr Minto relied on HDCP controls which allow a 900mm setback in settings like this. When I asked Mr Hurley the same question, he suggested the neighbour concern was symptomatic of the tightness of the proposal.

35. The applicant proposed a condition, essentially to the effect of the recommendation of Mr Minto. The original condition, as proposed by the Applicant (provided to the Court 10 May 2021) was as follows:

“So as to minimise impacts upon the adjoining property at 2A Glenshee Place, a minimum of two (2) x Elaeocarpus reticulatus (Blueberry Ash) having a minimum pot size of 25 litres are to be planted in the north eastern corner of Proposed Lot 1.”

36. Council did not agree with the condition as proposed above on the basis that “such a condition lacks the opportunity for precise consideration of location and effect of what is said to be the purpose of the condition” (advice in response to the proposed conditions provided to the Court on 11 May 2021). The applicant provided a further refinement to the condition as follows (provided to the Court 12 May 2021):

“So as to minimise impacts upon the adjoining property at 2A Glenshee Place, a minimum of two (2) x Elaeocarpus reticulatus (Blueberry Ash) having a minimum pot size of 25 litres are to be planted generally in the north eastern corner but specifically along the common boundary with 2A Glenshee Place (SP49049) of Proposed Lot 1”.

37. I am not satisfied with this response to the potential amenity effects on 2A Glenshee Place. In this particular “low density setting”, it is fair to expect some reasonably disciplined effort to cushion adverse impact effects for a neighbour in such close proximity. In this case this would involve a building platform control through some encumbrance on title, such as proposed here, and with the side boundary setback to the boundary with 2A Glenshee Place needing to be considered in association with landscape treatment to achieve reasonable amenity outcome, something not clear here. The goal is to allow some retention of the outlook to bushland while also screening the future building massing to the extent that there is a general fitting in with this particular setting, and that the creation of something of material impact on 2A Glenshee Place is avoided. While I acknowledge s 4.15(3A) of the EPA Act in regard to the 900mm setback control, infill development of this kind, which is non-compliant with a number of other DCP controls, would need to provide an integrated response that achieves the above stated goal. While not necessarily involving great complexity, I would need to be satisfied that the required degree of discipline by way of analysis and response has occurred demonstrating achievement. In this case I am not.

38. I also believe that, mindful of the third zone objective, and in regard to this kind of infill development, there should be some flexibility around the numerical standard for building platforms. In this case it seems there would be sufficient space for a good sized home, without causing otherwise character compatibility concerns, even with an increased side boundary setback to accommodate some well thought through landscape treatment.

Gilbert Road setback

39. I note the evidence in regard to the background to the setback provision within HDCP. It does seem to me that further explicit commentary and provisions would be expected were the 18m setback control to have compelling weight. There are some prospects for this to occur in the future. However, in this matter it is not necessary here for me to make any wide-ranging conclusion in regard to the 18m setback control to Gilbert Road, rather I need to consider the particulars of the case before me. It seems reasonably clear that even if the Gilbert Road widening were to go ahead, there would be little practical likelihood of it involving the lands in the immediate site vicinity, due to the engineering and ecological practicalities involved, and the existence of a contravening development immediately east of the site.

Conclusion

40. The Court orders:

1. The appeal is dismissed.

2. Development Application No. DA 794/2020/ZA for subdivision creating two residential lots including demolition at Lot 6002 DP 817992 (known as 4 Craigton Place and 112 Gilbert Road Glenhaven) is refused.

3. The exhibits are returned with the exception of Exhibits 2 and A-K.

…………………………..

P Walsh

Commissioner of the Court

Decision last updated: 19 May 2021