Hilley v Blue Mountains Council

[2004] NSWLEC 412

Land and Environment Court

of New South Wales

CITATION:	Hilley v Blue Mountains Council [2004] NSWLEC 412
PARTIES:	APPLICANT Hugh Hilley RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10408 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- erection of townhouses weight to be given to draft plan building design impact on character of area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan No 4 Draft Blue Mountains Local Environmental Plan No 2002
CASES CITED:	Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289; Architects Haywood and Bakker Pty Limited v North Sydney Council (2000) NSWLEC 138
DATES OF HEARING:	26/07/2004
DATE OF JUDGMENT:	08/10/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P Crennan, solicitor SOLICITORS McIntosh, McPhillamy & Co RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner G T Brown

10 August 2004

10408 of 2004 Hugh Hilley v Blue Mountains City Council

JUDGMENT

Introduction

1 This is an appeal against the deemed refusal by Blue Mountains City Council (the council) of Development Application No: X03/1804 for the erection of 12 townhouses at 71-73 Railway Parade, Leura (the subject site)

2 I record that inspection of the subject site and surrounding areas was undertaken on the morning of the hearing with representatives from both parties. A number of residents also took the opportunity to provide their evidence at this time.

3 For the reasons set out in the judgment I have concluded that the appeal should be dismissed and development consent refused.

The subject site

4 The subject site is vacant land and consists of Portions 1, 2 and 3 in DP 1175. It is trapezoidal in shape with a northern boundary to Railway Parade of 73.86 m, a western boundary to Wascoe St of 136.4 m, an eastern boundary of 93.75 m and a southern boundary of 60.345 m, giving a total area of 6730 sq m.

5 The subject site falls approximately 30 m from north-east to south-west with the steeper slopes towards the northern end of the subject site. Native and exotic vegetation is located generally over the subject site. Due to the topography, access is not available from Railway Parade.

6 The surrounding area consists of older style single dwelling houses with some multi-unit developments in the immediate area. Leura Village is located approximately 100 m to the east of the subject site.

The proposal

7 The proposal seeks the erection of 12 townhouses at the southern end of the subject site. The northern and steeper end is to remain in its natural state. Each townhouse is designated as two-bedroom plus study with a single garage located within the dwelling form. The townhouses are located in three groups of 2 townhouses (Units 1 and 2, Units 3 and 4 and Units 5 and 6) and two groups of 3 townhouses (Units 7, 8 and 9 and Units 10, 11 and 12). A one-way internal road off Wascoe St connects the townhouses with the entry adjoining the southern boundary and the exit some 50 m to the north.

Relevant planning controls

8 The subject site is currently zoned Residential 2(b2) under the provisions of Blue Mountains Local Environmental Plan No 4 (LEP 4). The proposed development is defined as a "residential flat building Class 1" and is permissible with council consent in this zone. The relevant requirements in LEP 4 are a 2 storey height (cl 17(b)), landscaped area at the rate of 180 sq m for each dwelling (cl 19(3)) and car parking at the rate of 1.75 parking spaces for each dwelling (cl 20(a)). Clause 42 states that consent shall not be granted unless an assessment has been made of certain factors. The relevant factors are height (cl 42 (d)) and topography, existing vegetation and visual amenity (cl 42 (d)).

9 The proposal is also subject to the provisions of draft Blue Mountains Local Environmental Plan No 2002 (the draft LEP). Under the draft LEP, the subject site is zoned part Living-Bushland Conservation and part Environmental Protection-General. Clause 32 of the draft LEP prohibits the proposed development within both zones. Clause 9 of the draft LEP states that consent shall not be granted unless the consent authority is satisfied that the development satisfies a number of requirements. These include compliance with the locality management provisions in Part 2 (cl 9)(c)), the assessment requirements and provisions in Part 3 (cl 9)(c)) and the relevant development provisions in Part 4 (cl 9)(c)). Clause 13)(1)(a) states that consent shall not be granted unless the development complies with the zone objectives.

10 The draft LEP was placed on public exhibition between 16 October 2002 and 13 December 2002. At its meeting of 7 October 2003, the council resolved that the revised draft LEP be forwarded to the Minister for Infrastructure Planning and Natural Resources and requesting that the draft LEP be made. As part of its considerations, the council specifically addressed a submission on the subject site and resolved that the zonings within the draft LEP be retained (Recommendations Z6.22 and Z6.32). At this meeting, the council also resolved to include savings and transitional provisions within the draft LEP. These provisions state:

Local environmental plans (including Blue Mountains Local Environmental Planning No 4) as in force immediately before the commencement of this plan, apply to a development application that was made but had not finally been determined before that commencement as if this plan had been exhibited but had not been made.

11 In April 2004, Parliamentary Counsel sought clarification on a number of matters in the draft LEP, however at July 2004 only two matters remained outstanding; neither of which relate to the subject site or proposed development.

12 The council's Performance Standards for the Design of Multiple Residential Development (the Performance Standards) applies to the proposed development. Requirements are provided for site grading, landscape design, open space, privacy, sunlight and energy conservation and noise.

The issues

13 The council provided a Statement of the Issues containing 17 separate issues. The impact on the hanging swamp (Issues 11 and 12) was not pressed by the council following the preparation of a report from a Court appointed ecologist. The energy efficiency of the buildings (Issues 14 and 15) and the grade of the entrance point (Issue 16) were also not pressed following the submission of further details by the applicant.

14 The remaining issues can be conveniently grouped into the following main areas:

1) whether sufficient weight should be given to the draft LEP to warrant the refusal of the development application ( Issue 1),
2) whether the design of the proposed development is acceptable in terms of the provision of overlooking, open space, height, excessive slope and cut and fill, accessibility and adaptability, maximum floor area, and usable site area (Issues 2, 3, 4, 5, 6, 7, 8, 9 and 13), and
3) whether the proposed development is compatible with the character of the area (Issue 10).

15 In addition to those matters raised by the council, the local residents raised additional issues relating to traffic, drainage, bushfire, loss of vegetation and loss of privacy and overlooking (Issue 17).

The draft LEP
What weight should be attributed to the draft LEP?

16 Mr Byron Tully, a town planner with the council provided evidence for the council and Mr Karl Berzins, also a town planner provided evidence for the applicant.

17 Put simply, Mr Tully states that the draft DCP is imminent and certain whereas Mr Berzins states that the imminency and certainty is ultimately a matter for the Court to decide.

18 Section 79C(a)(ii) of the Environmental Planning and Assessment Act 1979 requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case, the draft LEP is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development. This requires a consideration of whether the making of the draft LEP is imminent and certain and also the savings and transitional provisions.

19 The draft LEP is a comprehensive document consisting of over 400 pages that covers the whole local government area. It has been under consideration since 1994 in various forms and has been the subject of extensive public consultation and consideration by the council staff and elected members (Exhibit 5). It is clearly reaching the end of an exhaustive process. The undisputed evidence is that only two unrelated areas of the draft plan are yet to be finalised with Parliamentary Counsel.

20 The Court was taken to the judgment of Pearlman J in Architects Haywood and Bakker Pty Limited v North Sydney Council (2000) NSWLEC 138 where the question of imminence and certainty was addressed. In this case, a development application for attached dwellings was the subject of a draft environmental planning instrument. It also contained similar savings and transitional provisions to that proposed in the subject application. It was agreed that the proposed development took the form of "carriage development" although the draft environmental planning instrument contained objectives to "avoid carriage development". Her Honour found that this non-compliance was critical and that the proposed development did not accord with the planning approach adopted by the draft environmental planning instrument.

21 If the circumstances in Architects Haywood and Bakker are compared to the subject application, two significant points emerge that support the council's position that significant weight should be given to the draft LEP. Firstly, the consideration of the draft LEP had reached a more advanced stage than the draft environmental planning instrument considered by Her Honour. In Architects Haywood and Bakker the submissions from a second round of advertising were still being considered by the council. Secondly, the proposed development is prohibited by the draft LEP whereas the development proposed in Architects Haywood and Bakker was still permissible under the draft environmental planning instrument although not in the same form provided by the existing environmental planning instrument. I accept that these circumstances provide strong support for the council's proposition that the proposed development should be refused because of its inconsistency with the planning approach of the draft LEP.

22 In my view, the certainty of the draft LEP is of considerable importance in determining how the development application should be considered given that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289, par 5). Mr Tully anticipates that the draft LEP will be gazetted within two or three months although I am not convinced that it is necessary for the draft LEP to be gazetted within this period for considerable weight to be given its provisions. I agree with Mr Tully that there is a high level of certainty that the draft LEP will be adopted in the form presented to the Court and consequently a high level of weight should be given to its provisions.

23 The savings and transitional provisions in the draft LEP do not alter these conclusions. The Court must consider the provisions of the draft LEP as if it had been placed on exhibition, and accordingly give weight to its provisions in the assessment of the development application.

24 The applicant drew the Court's attention to a document produced by the council, titled Environmental Management Plan 2002 - Residential Development Strategy. It was described as a background document to the draft LEP. The applicant submitted that the zoning of the subject site under the draft LEP was predicated on the existence of a hanging swamp (Exhibit 4 ,p 73). As the existence of a hanging swamp has now been investigated and found to be incorrect, the applicant submitted that the zoning under the draft LEP must be questionable. Even if the applicant's submission does have merit, no weight can be given to this submission. It is not the role of the Court to review the zonings in the draft LEP. This is a matter that rests solely with the council.

25 What effect does the weight given to the draft LEP have on the development application?

The draft LEP provides a number of provisions that if not satisfied, prohibit development consent being granted. They require an independent assessment and the failure to satisfy any one of these provisions must see the development application refused.

Clause 13(1)(a) states that consent shall not be granted unless the development complies with the relevant zone objectives. The relevant zone objectives are:
Living-Bushland Conservation zone:
a) To allow for residential development in the form of a single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a matter that minimises impact on environmentally sensitive areas.
b) To retain a predominantly bush land character by encouraging the retention and re-establishment of native bushland and the retention of large allotment sizes.
Environmental Protection-General zone:
a) To protects environmentally sensitive land or areas of high scenic value in the City from development
b) To encourage land restoration works on disturbed bushland areas.

26 There can be little doubt that the proposed development fails to comply with objective (a) of the Living-Bushland Conservation zone. The objective provides for single detached dwellings whereas the proposal provides for multi-unit housing. Additionally, the proposed development seeks to clear nearly all vegetation within this zone and as such, the proposal does not comply with objective (b).

27 I also accept that the proposed development does not comply with objective (a) or (b) of the Environmental Protection-General zone as the proposed dwellings extends some 20 metres into this zone, even though a large portion of this zone is left in its original condition.

28 Having found that the draft LEP should be given a high level of weight because of its certainty, a high level of weight should be given to compliance with its requirements. As the proposed development does not comply with the requirements of cl 13(1)(a), development consent must not be granted and the appeal must fail. For this reason, it is not necessary to address any further provisions in the draft LEP.

29 For completeness, I will briefly deal with the other outstanding issues.

Building design
Overlooking

30 It was agreed between Mr Tully and Mr Berzins that a potential for overlooking exists from the balcony of Unit 5 into the open space areas of the Units 1 and 2 and possibly Unit 3. Mr Berzins suggested that a privacy screen could be erected along the southern edge of the balcony of Unit 5 to restrict any overlooking. While accepting that the privacy screen would restrict overlooking from the balcony, Mr Tully States that it would introduce a visually intrusive element into the Wascoe St frontage and also reduce the amenity of the balcony.

31 The Court also heard from Mr and Mrs Watson who reside at 8 Wascoe St and adjoin part of the southern boundary of the subject site. They expressed a particular concern over the potential overlooking from the first floor kitchen and bedroom windows of Units 1 and 2 to a deck area adjoining the common boundary.

32 Clause 96(1) of the draft LEP states that consent must not be granted unless the development is designed to maximise visual privacy. The clause also sets out how visual privacy can be maximised, including the use of screens (cl 96(5)(b)). In accepting that screen on the balcony of Unit 5 will achieve a suitable level of privacy, I agree that the impact on streetscape is undesirable. The overall issue of streetscape is addressed later in the judgment.

33 In terms of the impact on the adjoining property at 8 Wascoe St and even though the distance between the windows and the deck area is in the order of 10 metres, I see no reason why greater consideration should be given to this potential impact. No details were provided on landscaping, fencing or other means to ameliorate the potential overlooking. In the absence of any specific details, I accept the concerns of Mr Mrs Watson have some merit.

Open space

34 There was disagreement on the location and quantum of private open space for each unit. Mr Berzins provided a table showing the amount of private open space for each unit. All but two units provide in excess of 50 sq m (Units 8 and 11 each provide 43 sq m). Mr Tully rejects the calculations of Mr Berzins as the private open space areas include the building setback to Wascoe St. He states that these areas are unsuitable, as any fencing would create an inappropriate presentation to the street.

35 The requirement for a minimum of 50 sq m of private open space is found in cl 66(2) and relates to dwellings with three or more bedrooms. Mr Tully, in his oral evidence, agreed that the 50 sq m numerical standard is generally achieved by the units, including Units 5 and 6 if the balconies of those units are included. There was also general agreement that the slope of the private open space areas could be reduced to 10% with only a relatively small exceedance of the 1 m maximum cut for Units 7 and 10.

36 Clause 66(3) of the draft LEP states the private open space is to include at least one area of 4 m minimum width and 25 sq m minimum area that provides "appropriate access to sunlight and minimise overshadowing from adjoining building" (cl 66(3)(d)). Clause 5.0 of the Performance Standards, in relation to open space, has an objective that requires "open space should be reasonably proportioned and substantially free of shadows throughout the year".

37 In my opinion, the documentation provided to the Court does not allow for a proper consideration of solar access. No specific standards for solar access were provided to the Court so the determination of what is "appropriate access" and "substantially free of shadows" is difficult to assess. While the development application plans provide details of solar access to the private open space areas, the assessment does not include any fencing for the private open space areas. As an example, a fence would be required between the private open space area and the internal access way for Unit 4. It is likely that any fence would have a serious impact on solar access to the private open space area of this unit. Based on the evidence, I am not convinced that the requirements in cl 66(3) are satisfied.

Height

38 Clause 3, Schedule 1, Part 5, Division 5 of the draft LEP provides for a maximum 8 m height or a maximum 6.5 m eave height. As I understand, it was agreed that the proposal satisfies the maximum 8 m height limit and marginally exceeds the 6.5 m height limit. While Mr Tully expressed concern over the visual prominence of the proposed development and the impact on the character of the surrounding area, I accept that height is not a valid reason to refuse the development application.

Slope/ cut and fill

39 Clause 44(1) of the draft LEP restricts development on any land that has a contiguous area of slope greater then 20% within a designated Protected Area unless the development complies with the Protected Area objectives and other provisions within the clause. The non-compliance with these requirements relates to proposed Units 7 to 12. Clause 57(2) also limits the alteration of the natural ground level by no more than 1 m cut and fill.

40 Mr Berzins States that the slope of the subject site is not uniform and Units 7 to 12 are located at a break in the slope. For example, the slope of the land below Unit 9 is 19% whereas the slope above this land is 36%. He further states that the units have been designed to respect the landform and the construction does not require a large amount of cut and fill. The agreed position was that the proposal provides for a maximum cut of 1.49 m for Unit 7 and 1.43 m for Unit 10 with the remaining units below 1 m. The evidence of Mr Tully is largely silent on this issue of slope although he notes that the proposed development extends up to 20 m into the Environmental Protection zone and that the proposed development would not appropriately achieve the objectives of this zone.

41 In my view, the variation to the slope requirement and the amount of cut and fill would not justify the refusal of the development application for these reasons alone.

Accessibility/adaptability

42 In terms of access for people with a disability, cl 100(1) requires that consent shall not be granted unless the development is designed to comply with the relevant part of the councils Better Living DCP and Australian Standard AS 1428.1-2001. Clause 100(2) requires 20% of all dwellings to be accessible to people with a disability. Clause 101(1) requires all dwellings to be adaptable in accordance with Australian Standard AS 4299-1995 or the Better Living DCP.

43 Mr Tully states that the development does not provide dwellings that are designed to reflect the variety of choice for people with a disability. Mr Berzins states that the proposal has been designed to follow the contours of the land so that cut and fill is minimised. As a result, the buildings are 2 storeys in nature and therefore not suited to people with a disability.

44 The evidence of Mr Tully and Mr Berzins did not address this issue in any detail. In the absence of any substantive argument by the applicant that the accessibility and adaptability requirements should be varied, the requirements in the draft LEP should prevail.

Floor area

45 Clause 102(b) requires that the proposal shall include a minimum of 33% of dwellings with a gross floor area of not greater than 100 sq m.

46 There was agreement that the proposed development did not satisfy this requirement. Mr Tully maintained that compliance was necessary as the requirement for smaller sized units reflects the likely future demand for smaller units. Mr Berzins stated that Units 1 to 4 could be redesigned to decrease the floor area however it would have minimal impact on housing choice in the area.

47 I agree with the evidence of Mr Berzins and find that the departure is not sufficient to warrant the refusal of the application for this reason.

Usable site area

48 Clause 19(3) of LEP 4 contains requirements for site area per dwelling and landscaped area per dwelling. There was agreement that the proposed development satisfied the requirements for site area per dwelling but disagreement over the amount of landscape area per dwelling.

49 The difference between the assessments of Mr Tully and Mr Berzins relates to the exclusion or inclusion of the land between Units 7 to 12 and Railway Parade. Mr Tully maintains that this land should not form part of the calculations, as it is not available for the use and enjoyment of future occupants. Mr Berzins takes the opposite view. He states that the land can be used and enjoyed by the future residents of Units 7 to 12 because of its natural attributes.

50 I agree with Mr Berzins that the area provides an opportunity for more passive recreational uses although if the application were to be approved greater details would be need to be provided to show how the area would be used.

Character of the area

51 Mr Tully states that LEP 4 and the draft LEP require consideration to be given to the context and characteristics of the surrounding locality and to provide for the dominance of the natural environment over the built environment. In his opinion, the proposed development does not achieve appropriate integration with the surrounding built and natural environment. The scale of the proposed buildings, their location on the site and the development overall is out of proportion with the dominant scale of development in the surrounding area.

52 Mr Berzins states that the proposed development is not out of character with the existing development pattern in the area. It will be screened by existing vegetation on the Wascoe St frontage. While the subject site can be seen from distant vantage points, it will not be visually prominent because it is cut into the site and not located near the top of the elevated portion of the subject site. Importantly, the form of housing in the area will change when the draft LEP is gazetted as it provides for multi-unit housing to the south and west of the subject site.

53 On the issue of the potential impact on the character of the area, I generally agree with the evidence of Mr Berzins. The area already has some multi-unit housing developments nearby and with the gazettal of the draft LEP; additional multi-unit housing developments are likely. In considering this issue, it is entirely appropriate to take into account the future form of development contemplated by the councils planning instruments.

54 While accepting that a multi-unit housing development would not necessarily impact on the character of the area, I am however not convinced that the design of the proposed development responds adequately to the character of the surrounding area for a number of reasons.

55 Firstly, the limited area available for the development on the subject site and the proposed access road requires the rear of Units 5 and 6 to face Wascoe St. While the balconies to these units provide some interest in the streetscape, normal domestic activities generally conducted in more private areas will be the visible from Wascoe St. The use of fencing or dense landscaping to provide privacy can create its own problems in terms of impacts on the streetscape. Also, the need to provide screening on the balcony further diminishes the developments presentation to Wascoe St.

56 Secondly, Unit 1 presents a largely blank and unattractive wall to Wascoe St. In my view, the design should give greater emphasis to the presentation to Wascoe St by orientating the building towards the street.

57 Thirdly, the lack of a landscape plan and any assessment of the existing vegetation fails to address a fundamental element of the character of the area. Even though the council did not raise these matters as issues, they are matters that are required to be addressed by LEP 4 and the draft LEP. For example, cl 42(d) of LEP 4, in terms of preserving the visual amenity of the locality, states that consent shall not be granted unless regard has been given to "……the type and extent of existing trees and vegetation". The draft LEP has more numerous requirements that require an assessment of the existing landscape features. Again, as an example, a principal objective of the plan is "to identify and retain the diverse built and landscape elements that contribute to the character and image of the Blue Mountains" (cl 12(h)). The proposed development seeks to remove all but a few of the existing trees. There was no identification of the trees to be lost and no explanation why at least some of the existing trees could not have been included within the proposed development. Without some consideration of the existing vegetation, I do not accept that it is possible to satisfactorily address the requirements in LEP 4 and the draft DCP relating to existing vegetation.

58 In saying this, I acknowledge that the applicant has provided an assessment of the flora and fauna on the subject site by AES Environmental Consultancy however this document generally provides a response to the applicant's obligations under the Threatened Species Conservation Act 1995 to protect threatened species, populations or ecological communities and their habitats rather than the protection of the existing vegetation as a means of retaining the landscaped character of the area.

Resident issues

59 The issues raised by the local residents and not addressed elsewhere in the judgment relate to traffic, drainage and bushfire risk. In relation to traffic, I accept that additional traffic will be generated by the proposed development however it is not likely to increase traffic in the local area to the point where it would be of a serious concern. I also accept that drainage can be adequately addressed through appropriate conditions that will satisfy the council requirements. Bushfire risk has been assessed by the council's Fire Control Officer and found to be acceptable.

Orders

60 For the foregoing reasons, the Orders of the Court are:

1) The appeal is dismissed.
2) Development Application No: X03/1804 for the erection of 12 townhouses at 71-73 Railway Parade, Leura is refused.
3) The exhibits are returned.

G T Brown
Commissioner of the Court