Fodor Investments v Hornsby Shire Council

[2005] NSWLEC 71

Land and Environment Court

of New South Wales

CITATION:

Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

PARTIES:

Fodor Investments Pty Ltd
Applicant

Hornsby Shire Council
Respondent

FILE NUMBER(S):

10882 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Existing Use Rights :- Planning principles on existing use rights

DATES OF HEARING:

20/12/2004 to 22/12/2004 and 17/02/2005

 
DATE OF JUDGMENT: 

03/01/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr P Tomasetti, barrister
instructed by Mr C Freeman of Christopher Freemen & Co

Respondent:
Mr P Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

1 March 2005

10882 of 2003 Fodor Investments Pty Ltd v Hornsby Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application in respect of lot 3 DP 828636, the Poplars Hospital, 64-66 Norfolk Road, Epping. The application seeks to

· demolish three buildings on the site;

· convert to residential use and extend a fourth building called the Tulloch Wing, and

· erect a residential complex containing 39 dwellings.

The site

2 The site is on the southeast corner of Norfolk Road and Somerset Street. Its area is 6,873m2. It falls 4.6m from the southwest to the northeast. The site now accommodates four buildings (ie Kirkwood House, the Gordon Young Wing, Somerset House and the Tulloch Wing), which constitute the Poplars Private Hospital. The surrounding development is low-density single housing, with the exception of the adjoining property to the south, which is the Carinya Retirement Village.

3 It was common ground that the site has existing use rights.

The proposal and its history

4 The applicant proposes to

· demolish all buildings except the Tulloch Wing;

· convert the Tulloch Wing to residential use and extend it;

· erect a housing complex containing 39 dwellings, of which 12 are in the converted/extended Tulloch Wing and 27 are in new buildings.

5 Vehicular access to basement parking is from Norfolk Road and Somerset Street.

6 The applicant submitted the development application in July 2002. The proposal was advertised, amended and re-advertised on several occasions. The council received 55 submissions, including some petitions. In June 2003 the council refused the application. The applicant lodged the appeal in July 2003.

7 The Court heard the matter on 20, 21 and 22 December 2004. On 22 December it became clear that the drawings indicated insufficient headroom for the basement parking, so that the proposal could not be constructed as shown. The applicant applied for adjournment and leave to file amended drawings. The leave was granted and the matter was heard further on 17 February 2005. This judgment deals with the last set of drawings.

Planning instruments

8 Local Environmental Plan 1994 (the LEP) zones the site and the surrounding area Residential A (Low Density). Multi-unit housing is permissible in this zone to a maximum Floor Space Ratio (FSR) of 0.4:1. Strata subdivision is not permissible.

The issues

9 The council identified the following as the major issues:

· The proposal has an adverse impact on the streetscape of Somerset Street.

· The internal amenity is poor.

· The proposal will overlook and visually overpower No 20 Somerset Street.

The objectors’ evidence

10 The Court heard the evidence of eleven objectors. Mr Leon Pluck of 63 Norfolk Road pointed out the strong community objection to the proposal. The objection was based on the proposal’s lack of sympathy with the scale and character of the surrounding single dwelling area. Ms Jenny Taylor of 17 Callistemon Close added to these concerns, saying that the setback to Norfolk Street was inadequate, 39 dwellings were too many, there was too little open area, and the proposal should be single-storey. Mr John Hodges, an architect retained by the adjoining retirement village, Carinya, said that his client was concerned about the overshadowing of the north-facing dwellings. Mr Peter Wheeler, of unit 2, 26 Somerset Street, said that the traffic and parking in Somerset Street were chaotic and would not take an additional 80 daily vehicle movements. Ms Alison Nicholls of 93 Oxford Street said that three-storey buildings facing Norfolk Street were out of context. Mr Tony Taylor of 47 Norfolk Street added his concerns about traffic and impact on heritage. Mr Alan Swales of 148 Pennant Parade mentioned his concern for the removal of trees. Mr David Jensen of 20 Somerset Street, whose property adjoins the Tulloch Wing, said that he was concerned about being overlooked by the new apartments in that building. Mr Keith and Mrs Elaine Lockray of 29 Somerset Street. Ms JeanetteTaylor of 55 Norfolk Street were concerned mainly about increased traffic.

11 The council did not support the objectors’ concerns about traffic and the proposal’s impact on Norfolk Street and there was no expert evidence on these matters. The other concerns of the objectors are the issues in the case.

Existing use rights

12 Section 108(3) of the Environmental Planning and Assessment Act 1979 (the Act) states:

An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

13 Regulation 41(1) of the Environmental Planning and Assessment Regulations 2000 states that

An existing use may, subject to this Division:

a) be enlarged, expanded or intensified; or
b) be altered or extended;
c) be rebuilt;
d) be changed to another use, including a use that would otherwise be prohibited under the Act.

14 A long line of legal authority has held that provisions of planning instruments that derogate (ie detract) from Regulation 41(1) do not apply to the assessment of applications on sites with existing use rights. A useful summary of the legal tests for existing use rights can be found in the decision of the Court of Appeal, Ashfield Municipal Council v Armstrong [2002] 122 LGRA 105 by Davies AJA at paragraphs 13 to 15.

15 Thus the consequence of preserving existing use rights is that zone objectives and planning controls that limit the size of a proposal (ie floor space ratio, height and setback) have no application. None of the judgments have dealt with the question whether or nor State Environmental Planning Policy No 65 – The Design of Residential Flat Development (SEPP 65) applies to existing use right applications. Because SEPP 65 contains design principles, there is an argument that it applies.

16 A common theme running through the judgments that have established legal principles in relation to existing use rights is that they identify the matters that do not apply to the assessment of applications. Apart from confirming that s79(c) of the Act applies; they are silent on the considerations that should inform the assessment of such applications. For this reason, it is useful to establish criteria for the assessment of proposals on land with existing use rights.

Planning principles: Assessment of proposals on land with existing use rights

17 Four questions usually arise in the assessment of existing use rights developments, namely:

· How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?

While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment.

· What is the relevance of the building in which the existing takes place?

Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision.

· What are the impacts on adjoining land?

The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.

· What is the internal amenity?

Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.

18 Three of the above four principles apply to the issues in the present case; namely the proposal’s appearance in the context of the surrounding area (in particular, Somerset Street); the impact on the adjoining No 20 Somerset Street; and internal amenity. These issues are discussed below.

The Court-appointed expert’s evidence

19 The Court had appointed Mr Nigel Dickson, an architect and urban designer, as the planning expert. In response to three versions of the proposal, Mr Dickson prepared three reports. The following summarises his reports as well as his oral evidence. In essence, Mr Dickson did not support the proposal for the following reasons:

· The impact on the streetscape of Somerset Street was unacceptable, as a result of increasing the height and scale of the Tulloch Wing.

· The impact of proposed Units 2, 3, 7 and 8 on the visual privacy of 20 Somerset Street was unacceptable. The amenity of the rear open space and balcony of that property will be compromised.

· Internal privacy in the proposal was generally poor. In particular, Units 5 and 9 overlooked Unit 22, Unit 9 overlooked Unit 5, and Units 6 and 9 overlooked Unit 11.

20 Mr Dickson considered that the information supplied on the drawings did not permit a proper assessment of the adaptive re-use of that building, in particular of the extent of retained building and additions to it. The applicant clarified the drawings during the hearing. In essence, the proposal re-uses the Tulloch Wing and extends it by one unit to the west and three units on the existing roof.

21 In his oral evidence Mr Dickson said that he did not think there would be sufficient headroom in the basement parking to allow for the mechanical ventilation ducts. These comments came late because, through an administrative error by either the respondent or its solicitors, Mr Dickson did not receive the mechanical engineering drawings until the day before the final day of the hearing.

The applicant’s expert’s evidence

22 Mr Steven McMahon, a planner and urban designer retained by the applicant, gave evidence. While he was not given leave to comment on the final amended drawings, his original comments remained relevant.

· The additions to the Tulloch Wing did not add visual bulk to the existing building. They improved its appearance.

· Units 7 and 8 could not overlook 20 Somerset Street.

· The privacy within the proposal was acceptable. A certain extent of overlooking in medium density development is unavoidable.

Findings

23 As regards the impact of the additional floor on the Tulloch Wing on Somerset Street, I accept Mr McMahon’s opinion, supported by perspective drawings, that the impact will be minor. The additional floor is set back and will not be easily seen from street level.

24 As regards the overlooking of the rear yard of 20 Somerset Street from Units 2, 3, 7 and 8, I agree with Mr Dickson that it will create uncomfortable conditions for that property. I do not think, however, that this alone is a reason for refusal, since it would be possible to avoid the problem, at least from the top units, by making parts of the roof terrace non-trafficable. The applicant is gaining a great deal of floor space by adding another floor to the Tulloch Wing. With a more modest approach to the roof terraces, the top floor could be designed to have negligible impact on 20 Somerset Street.

25 The main weakness of the proposal is the amenity it would provide to its own residents. In my opinion, this is worse than Mr Dickson suggested; and he did not support the proposal. The examples he gave of overlooking are only a sample of the many instances where balconies and windows are too close to each other for comfort. I accept, of course, that in medium density developments a certain amount of overlooking from upper floors is unavoidable. In this proposal, however, overlooking occurs also at ground level. The worst example is from the communal open space into the private courtyards of the units to the south of it. The problem is due to the communal space being elevated above the courtyards, which is an unusual feature in housing projects of this kind. Privacy can be achieved only by relying on planting. Although Mr Dickson did not raise the issue, I note that the difference in levels, combined with the large balcony above, will ensure that the courtyards and the glazing to the lounge and kitchen of Units 19 and 20 will be in permanent shadow in mid-winter. It seems pointless to place living areas and courtyards to the north only to deprive them of sunlight by overhangs and level changes.

26 Mr Dickson’s concerns about insufficient headroom in the basement level appear valid. I hesitate to put too much weight on this because his evidence came late (through no fault of the applicant or Mr Dickson) and because it is unusual for mechanical ventilation drawings to come before the Court. On the other hand, the proposal is unusual in having so many different floor levels at basement and ground. My concern is that the ground levels would have to be raised further to create adequate headroom in the basement.

27 I accept the Court-appointed expert, Mr Dickson’s view that the internal amenity of this proposal falls short of acceptable. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to convert to residential use one existing hospital building, demolish the other buildings and erect a residential complex containing 39 dwellings on lot 3 DP 828636, The Poplars Hospital, 64-66 Norfolk Road, Epping is determined by refusal.

3. The exhibits are returned.

__________________
Dr John Roseth
Senior Commissioner