Heywood v Hunters Hill Council

[2007] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION:	Heywood v Hunters Hill Council [2007] NSWLEC 124
PARTIES:	APPLICANT Peter & Marion Heywood RESPONDENT Hunters Hill Council
FILE NUMBER(S):	11051 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of an awning - breach of rear and side setbacks and garden area requirements
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hunters Hill Local Environmental Plan No 1
DATES OF HEARING:	7/03/07
EX TEMPORE JUDGMENT DATE:	7 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr A Gough, solicitor SOLICITORS Storey and Gough RESPONDENT Mr P Brown, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

7 March 2007

11051 of 2006 Peter & Marion Heywood v Hunters Hill Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application 06/1119 by Hunters Hill Council (the council) for the erection of an awning at 29 Mortimer Lewis Drive, Huntleys Cove (the site).

Background

2 The proceedings were heard as an On Site Hearing on 7 March 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site.

3 The site has an area of 289 sq m and forms part of a planned residential estate between Victoria Road and Tarban Creek at Huntleys Cove. The site has a frontage to Mortimer Lewis Drive and a rear boundary that adjoins a passive open space area and Riverglade Reserve.

The proposal

4 The proposal seeks to erect an awning at the rear of the existing dwelling. The awning is described as a vergola and is an aluminium structure that has moveable blades in the roof to control sunlight and rain. It is 4.45m long with 1.48m located under an existing balcony, 4.185m wide and 2.55m high when measured from the top of the structure. The setback from the rear boundary ranges between 1.95 m and 2.2m.

Relevant planning controls

5 The site is within Zone No. 2(c)(Residential “C”) under Hunters Hill Local Environmental Plan No 1 (LEP 1). The proposed use is permissible with consent within this zone. The aims, objectives, etc of the plan are found at cl 2.

6 Hunters Hill Development Control Plan No 15 - Residential Development (DCP 15) applies. The relevant provisions are Objectives (cl 3.1), Design Parameters (cl 3.2), Front, Side and Rear Setbacks (cl 7.2) and Garden Area (cl 7.3).

The issues

7 The council filed a Statement of Issues containing five issues. The adequacy of the documentation (Issue 5) was not pressed by the council following the submission of further plans. The remaining issues can be grouped into following main areas:

1) whether the departure from the rear setback requirement can be supported?
2) whether the departure from the side setback requirement can be supported?
3) whether there was a departure from the garden area requirement and if so, whether the departure can be supported?
Rear setback

8 The departure from the rear setback requirement was the significant issue in the proceedings. Clause 7.2.4 provides that " the distance between any part of a building and the rear boundary shall be 6 metres". The clause further states, "single storey buildings will be permitted within the 6.0 metre rear boundary setback area. Single storey buildings having a maximum wall height of 2.4 metres shall be permitted up to the boundary for a maximum length of 33% of the boundary".

9 Clause 7.2.5 provides for exemptions to the front, side and rear setback provisions. It states, in part, "council may permit buildings to be erected within the calculated boundary setback area, where it can be demonstrated that the objectives of the setback controls, particularly privacy and sunshine can be achieved without strict adherence to the standards…..However, in considering such encroachments, the applicant must demonstrate to Council that the adjoining properties will not be unduly adversely affected".

10 The relevant objectives of the setback controls are:

a. To ensure that setbacks of new dwellings and alterations and extensions to existing dwellings respect the characteristic pattern of setbacks in the locality and in particular conserve the identity of the Municipality established by its townscape of pre-1930s buildings (cl 7.2.1 a).

b. To maintain the garden space between buildings which is part of the existing character of the Municipality, and to minimise the adverse visual impact on adjacent and adjoining properties (cl 7.2.1 b).

11 The council submitted that the proposed setback was inadequate in that it did not provide an appropriate transition from the residential zoning of the site to the open space zoning at the rear. It would be seen as overbearing and unacceptably bulky when viewed from the open space. No other dwelling with a rear boundary to the rear has a setback similar to that proposed in this application. The applicant submitted that cl 7.2.5 was satisfied and could be used to vary the rear setback.

12 With the benefit of the site view I agree with the applicant. DCP 15 clearly contemplates variations to the setback requirements (including a zero setback) through cl 7.2.4 and cl 7.2.5. While the proposal exceeds the 33% maximum length of the boundary requirement in cl 7.2.4, the proposal in my view adequately compensates for this departure by providing a landscaped 2 m setback rather adopting the option of being located on the boundary. Further, the vergola also occupies less than 50% of the boundary length; the remaining setback to the dwelling is in the order of 8.5m.

13 I am also satisfied that the 2 m setback provides an adequate transition between the residential and open space zones although I accept that any lesser setback could be problematic. The site view highlighted at least six other structures of different materials and construction techniques attached to the rear of existing dwellings and facing the open space area. I acknowledge that all of these structures provide a greater setback than 2m however there was no consistent setback of dwellings to the open space boundary. In my understanding of the aerial photographs tendered by the council, the dwelling on the site has one of the smallest setbacks to the rear boundary of the dwellings and the open space.

14 I do not accept the submission that the proposed structure will be overbearing and unacceptably bulky when viewed from the open space area. Adequate landscaping has already been provided in the setback area that will ultimately provide some screening from the open space area. The open space area at the rear is used for passive recreational purposes with the majority of the people likely to use the formed pathway, which is located some distance from the site.

15 In relation to potential amenity impacts on adjoining properties, I note that letters were tendered by the applicant from both adjoining owners indicating that they supported the proposed development. Potential amenity impacts on these properties was also not raised by the council.

16 Overall I am satisfied that a consideration of the provisions in cl 7.2.4 and cl 7.2.5 of DCP 15 support a variation to the 6 m rear boundary setback.

Side setback

17 Clause 7.2.4 provides that "the distance between any part of building and side boundaries of the site shall not be less than 1.5 metres". The proposal provides an eastern side setback of 1.3 metres. While the council pressed the issue of the breach of the side setback requirement, it acknowledged that it was not a significant issue in the proceedings. As the 1.3 m setback maintains the setback of the existing dwelling on the site it is difficult to argue that the setback of the structure should be increased to 1.5 m.

18 Clause 7.2.5 also applies to side setbacks and considering the particular requirements of this clause I am satisfied that a variation to the 1.5 m side boundary setback can be supported.

Garden area

19 Clause 7.3.3 provides that "a building shall not be erected on any allotment of land within a residential zoning unless it has a garden area equal to or greater than 50% of the area of the allotment". The clause provides objectives for the garden area requirement and a definition of garden area.

20 The council submitted that the proposed development would reduce the garden area from 47.75% to 43.43% and as such was unacceptable. The applicant submitted that the structure did not reduce the garden area as the area underneath the structure falls within the definition of garden area. By placing a structure above this area, its classification as garden area should not change as it is to be used for the same purpose.

21 I prefer the applicants submissions on this issue and in considering the proposed development against the objectives in cl 7.3.1, I am satisfied that the proposed development is consistent with the objectives. If I am incorrect in this conclusion, I accept that the variation to the garden area requirement in DCP 15 is minor at best, and would not be a reason that warrants the refusal of the development application.

22 I also find that the proposed development is consistent with the relevant objectives in LEP 1 and DCP 15.

Orders

23 The Orders of the Court are:

1) The appeal is upheld.
2) Development Application 06/1119 for the erection of a vergola at 29 Mortimer Lewis Drive, Huntleys Cove is approved subject to conditions in Annexure A.
3) The exhibits are returned with the exception of exhibit A.
_____________
G T Brown
Commissioner of the Court