Graham v Hornsby Shire Council

[2008] NSWLEC 1114

Land and Environment Court

of New South Wales

CITATION:

Graham v Hornsby Shire Council [2008] NSWLEC 1114

PARTIES:

APPLICANT
Peter Graham

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11292 of 2007

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Use existing dwelling as Multi Unit housing (two dwellings). Adequacy of private open space.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

06/03/2008

EX TEMPORE JUDGMENT DATE:

6 March 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. McMahon,
of M E McMahon & Associates

RESPONDENT
Mr R. Graham, solicitor
of Home Wilkinson Lowry Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

6 March 2008

11292 of 2007 Peter Graham v Hornsby Shire Coucnil

JUDGMENT

1 This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application (626/2007) for multi unit housing (two dwellings) at 23 Excelsior Road, Mount Colah (the site).

2 The site is presently developed with one building containing two separate dwellings and an in ground swimming pool. The application seeks to formalise the use of the building as two dwellings. No work or subdivision is proposed.

3 The site, its context, the history of the application, the planning controls and the contentions in dispute between the parties are in the Statement of Facts and Contentions.

4 The appeal was conducted as a s 34 conference which commenced on site on 7 February 2008. The conference was adjourned for further information, including calculations of landscape area and private open space and details of the provision of parking.

5 The conference reconvened on 6 March 2008. The only issue that remained in dispute between the parties was whether suitable and adequate open space was provided for Unit 1. The parties agreed to the proceedings being disposed of under s 34(4)(b)(ii).

6 The Court heard expert evidence from Ms A. Coomar, council planner and Mr P. Graham, surveyor.

7 The key difference of opinion between the experts can be summarised as whether the proposal met the objectives and numerical requirements of the Low Density Multi Unit Housing Development Control Plan (the DCP), in particular, whether the swimming pool should be included in the private open space area.

8 The Element Objective for private open space in the DCP is:

To provide private open space which meets user requirements for outdoor activities and use.

9 The Performance Criteria include:

Private open space areas should be of dimensions to suit the projected requirements of the dwelling occupants and to accommodate both outdoor recreation needs as well as providing space for service functions such as clothes drying and domestic storage.

Part of the private open space should be capable of enabling an extension of the function of the dwelling for relaxation, dining, entertainment, recreation and children’s play, and be directly accessible from the dwelling.

10 The prescriptive measures are:

Private open space of dwellings should be directly accessible from the living areas of the dwelling and have the following minimum areas:

Dwelling type (Floorspace) Private Open Space Area
….
….
….
Extra large dwelling (>150m2) 120m2

The minimum dimension of private open space should be 5m.

The private open space provision may consist of more then one component, provided at least one component has an area of not less than 60m2.

Private open space does not include driveways, turning areas, car spaces, narrow elongated curtilage areas within boundary setback areas, and service areas.

11 Ms Coomar did not consider that the swimming pool should be included in the private open space area. If this is excluded the private open space is approximately 110 sq m instead of the required 120 sq m for a large dwelling. She also raised questions about the useability of the area around the swimming pool.

12 Mr Graham, included the swimming pool, giving an area of about 160 sq m. He excluded areas at the rear of the property from the open space area as these were at a different level and did not all provide the minimum dimensions of 5 m. Nevertheless Mr Graham considered these could also be used as private open space.

13 Mr R Graham, the solicitor for council, submits that the swimming pool cannot be included as private open space as it is recreational facility and it is not private.

Findings

14 I do not accept Mr R Graham’s submission. The swimming pool is ancillary to the use of the dwelling and provides a facility for outdoor activities and recreation. It is not expressly excluded in the DCP Prescriptive Measures as private open space. However, whether or not the pool is included as private open space. I find that the proposal meets the objectives and performance criteria of the control.

15 The proposal provides an outdoor deck, swimming pool with generous surrounds and the lower level area (which is not included in the calculations). These areas combine to provide adequate private open space to meet the likely needs of the occupants of Unit 1. If the swimming pool were to no longer meet these it could be covered or filled. There is sufficient outdoor open space that is private that can meet user requirements for outdoor activities and use.

1. The appeal is upheld.
2. The development application (626/2007) for multi unit housing (2 dwellings) at 23 Excelsior Road, Mount Colah, is approved subject to the conditions in Annexure A.
3. The exhibits except Exhibits A, B and 5 may be returned.

___________________

Annelise Tuor
Commissioner of the Court
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