Homeplan Architects Pty Ltd v Baulkham Hills Shire Council

[2006] NSWLEC 209

Land and Environment Court

of New South Wales

CITATION:

Homeplan Architects Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 209

PARTIES:

APPLICANT
Homeplan Architects Pty Ltd

RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

11267 of 2005

CORAM:

Bly C

KEY ISSUES:

Development Application :- Demolition of dwellings, construction of townhouses, building separation, landscaping, private open space, pedestrian access, vehicular access

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005
Development Control Plan No. 4, Townhouses and Multi-unit Housing Urban Design Guidelines,
Residential Development Control Plan No. 3

DATES OF HEARING:

13-14/03/2006

EX TEMPORE JUDGMENT DATE:

03/14/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Galasso, barrister
Instructed by: Mr N Velcic
Of: Nicola and Velcic

RESPONDENT
Ms J Wauchope, solicitor
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

14 March 2006

11267 of 2005 Homeplan Architects Pty Ltd v Baulkham Hills Shire Council

JUDGMENT

1 This appeal relates to development application No. 1808/05/ZA, which is for the construction of a townhouse development comprising 10 dwellings and 24 carparking spaces at No. 77 Old Castle Hill Road and No. 5 Gilham Street, Castle Hill. Also involved is the demolition of two existing dwellings.

2 The townhouses are comprised in four two-storey buildings with vehicular and pedestrian access off Old Castle Hill Road. The L-shaped site has an angled frontage of 30.6 m to Old Castle Hill Road, with an area of 3233 sq m. It has a slope of about 7 m from Old Castle Hill Road to its rear boundary, where it adjoins the Coolabah Street reserve.

3 The site is situated in the predominantly residential Castle Hill area, with surrounding development primarily comprising detached dwelling houses and townhouses. The Castle Hill town centre is located approximately 250 m to the south. A recently constructed two-storey townhouse development exists on the site immediately to the north.

4 The site is zoned Residential 2(a2) under the provisions of the Baulkham Hills Local Environmental Plan 2005, in which zone the proposal is permissible with development consent. Also applicable is Development Control Plan No. 4, Townhouses and Multi-unit Housing Urban Design Guidelines, and to a lesser degree, the Residential Development Control Plan No. 3.

5 The application in slightly varying forms was advertised and at least 15 objections plus a petition were received by the council. Those objections raised matters of concern including:

• the unsatisfactory appearance of the proposed buildings, especially bulk and scale when viewed from neighbouring properties;
• the excessive bulk and scale of the buildings would be out of character with the locality and the streetscape;
• the removal of a number of large trees from the site would adversely affect the amenity of the locality;
• non-compliance with various development control plan requirements, including setbacks and landscaping;
• the proposed direct access onto the adjoining part would facilitate the inappropriate use of it, especially by prospective tenants of the development;
• overlooking of the park would also adversely affect its usability; overshadowing, overlooking and loss of visual and aural privacy including overlooking from upper level living rooms of the townhouse development to the north;
• traffic generation and associated impacts in Old Castle Hill Road;
• unsatisfactory internal pedestrian and traffic arrangements, especially in relation to vehicular access into carparking spaces;
• disabled access to the adaptable dwelling.

6 The application was the subject of a number of amendments and reconsideration by council officers. Those reports considered the proposal in the light of the resident objections and in the light of the applicable planning controls, and concluded that despite a number of relatively minor non-compliances that the application should be approved.

7 Despite this the application was refused by the council on 20 December 2005 for the following reasons:

“1. The proposal is contrary to the objectives of council’s LEP as the development does not comply with the requirements of council’s adopted DCP for townhouses in the following areas:
• building separation
• landscaping width
• courtyard fencing
• private open space
• pedestrian access
• mobility and access
• vehicle manoeuvrability.

2. The proposal is not in the public interest.

3. The applicant has not justified the departure from council’s DCP.”

8 The hearing began with an inspection of the site and its environs, including the premises of a number of objectors. A number of residents took the opportunity to explain to the Court in some detail their particular concerns.

9 The Court was also assisted by the following expert reports:

• a tree report by Mr Marsden;
• a flora and fauna assessment by Mr Cornelius and Mr Brown;
• a noise assessment report by Mr Benbo;
• a traffic impact statement and supplementary reports by Mr Stanbury;
• an accessibility report by Mr M Relf

10 Detailed resident objector evidence was given by Ms L Johnson, of 1 Gilham Street, Castle Hill, in the form of six letters written to the council and oral evidence, both on-site and in Court. The rear part of her property that is occupied by a recreation area including swimming pool adjoins the site to its south and east. Her expressed concerns include the following:

• numerous non-compliances with the applicable planning controls and Australian standards relating to vehicular access and manoeuvrability within the site;
• pedestrian safety and amenity and landscaping;
• overlooking and loss of privacy, both visual and aural, including the absence of effective landscape screening;
• the lengthy and inconvenient access route for the adaptable dwelling, which also suffers from lack of amenity.
• Mr Relf’s unsatisfactory adaptable housing assessment;
• loss of development potential for her site, taking into account the proximity of the proposed townhouses to the northern and western boundaries;
• the extent to which the proposal will overshadow the property;
• the floor areas of the townhouses are too small.

11 The principal issues raised by the council in arguing that the application should be refused comprise:

• insufficient building separation between townhouses 6, 7 and 8, and townhouses 9 and 10;
• inadequate width of landscaped areas along the southern side of the driveway;
• inadequate provision of private open space to townhouses 9 and 10;
• unsatisfactory amenity associated with pedestrian access, including access to the adaptable dwelling;
• unsatisfactory vehicular access into the garages.

12 In relation to building separation between townhouses 6, 7 and 8, and townhouses 9 and 10, s 5.6 of the DCP requires that there should be a separation of 10 m, although some intrusions in the form of porticos, awnings and the like may reduce this to 8 m. At the first floor level the proposed townhouses meet this requirement, however at ground level the buildings generally have a 7 m separation. The objectives of this standard involve the provision of sufficient separation to allow for vehicle manoeuvring, landscaping, privacy and amenity. In this regard I am satisfied that an appropriate level of vehicle manoeuvring space is available to gain access and egress from the garages has been achieved, although I will say more about this later.

13 Because the existence of separation between any habitable rooms is met or exceeded, again this is not a matter of concern. Some landscaping is provided in the offending areas between the two buildings, but this is not optimal and the resulting amenity will not be great. However given that there is only one living room with a window looking into the space, I do not accept that this deficiency should be critical to the application. The upstairs bedroom windows of both buildings have a 10 m separation and are therefore satisfactory.

14 Section 5.6 of the DCP also requires that where driveways are located along the property boundary there must be a landscaped area 2 m wide between the driveway and the boundary. The proposal fails to meet this requirement in an area generally to the south-east of townhouse 1, having a width of about 1 m. Also the 2 m setback area further to the west is infringed by the provision of two refuge areas measuring 2 m by 1 m.

15 The objectives of this requirement involve privacy and amenity for neighbours and the landscaping of the driveway itself. I have examined the landscape plan and am satisfied that the plantings proposed in this part of the site can be successful and, together with the landscaping in front of the setback line and adjacent to the proposed townhouses, this should result in a sufficient landscaping arrangement to provide an appropriate level of amenity for the driveway itself.

16 In this context I have also taken into account the significant kink in the driveway beyond the 6 m wide passing area, avoiding concerns that the driveway might have a gun-barrel character. Parts of the driveway are to be 3 m wide and this contributes to the reduction in hard paved areas. Overall the amenity of the driveway should be entirely reasonable for this form of townhouse development.

17 The objectives of the standard also require the protection of privacy and amenity of the residents. The landscaping arrangement alongside the driveway should also contribute to the amenity of this development generally. It should also contribute to the amenity of neighbouring properties to the south, given that the plantings will extend above the fence and will soften the appearance of the proposal.

18 In the circumstances I agree with the council officer’s analysis and conclude that the deficiency in the width of the landscaped strip is not such as to warrant refusal of the application.

19 The private open space provided for townhouses 9 and 10 was criticised because they do not each have an effective area of 5 m by 5 m. According to the council officer’s report there are two 5 m by 5 m areas, but both of these are affected by retaining walls and services, but because the total areas provided significantly exceed the minimum requirements of the DCP and given that they have an appropriate level of solar access, this deficiency is not a matter of concern. I agree with this conclusion.

20 The next issue involves the amenity associated with pedestrian access, including access to the adaptable dwelling. The main access driveway through the site is also to be used as the pedestrian access to the townhouses. A separate disabled access route is available through part of the site but otherwise is required to utilise a contrastingly paved part of the driveway and a switchback ramp arrangement between townhouses 3 and 4.

21 The DCP does not require separate pedestrian access for developments of 10 dwellings or less, hence separate pedestrian access is not required here. As for the general question of the amenity for pedestrians walking from Old Castle Hill Road to the various townhouses, and taking into account the landscaped design and the scale, form and design of the buildings, I do not accept that the resulting amenity would be unacceptable.

22 Clearly the disabled access route from Old Castle Hill Road to the adaptable dwelling is not an optimal solution, but given that Mr Relf finds it to be satisfactory I do not find this aspect of the proposal to be of critical concern.

23 Finally, the ability to manoeuvre cars into and out of a number of garages was criticised. It was suggested that the number of movements to get cars into or out of the garages would be excessive. This was based on the application of standard turning templates as required by Development Control Plan No. 12 (“DCP 12”).

24 Mr Stanbury was nevertheless satisfied, taking into account the now agreed amendment to the design, Exhibit K, that the vehicular access to the car spaces as required by the DCP 12 can be achieved. He explained that according to Australian Standard 2890.1 swept turning path overlays are not suitable for determining aisle widths needed for manoeuvring into and out of parking spaces. Instead the swept path overlays are more suitable for situations where higher speed manoeuvring throughout the site is involved.

25 Because the proposed car spaces meet the minimum length and width and the driveway meets the minimum aisle width requirements as referred to in AS 2890.1 the proposed parking and access arrangements are in compliance with DCP 12 and are thus satisfactory. Whilst I recognise that access and egress to and from some of the car spaces will be tight, I have been persuaded by the evidence of Mr Stanbury that the resulting arrangements are not such as to require the refusal of the application, or indeed to require any significant changes to it.

26 Finally, and more generally in relation to questions of privacy for neighbours, taking into account the relative levels, window arrangements, setbacks/distances of separation, fencing and landscaping I have not been persuaded that there will be any significant overlooking concerns sufficient to warrant refusal of the application.

27 As for issues of height, bulk and scale, taking into account that the townhouses are divided into four separate buildings that comfortably comply with applicable height controls and meet the setback requirements, and taking also into account the articulation and modulation of the design, this cannot be a matter of any serious concern.

28 Regarding the loss of trees from the site, I recognise that a number of significant trees are to be retained and some additional trees are to be planted. Clearly the treed skyline when viewed from surrounding areas will be affected by this proposal, however taking into account that the site is zoned for townhouse development I accept that the outcome is a balanced one.

29 Also, suggestions that the occupants of this development are likely to utilise the public reserve in an inappropriate manner are not matters that can attract any serious concern. I cannot but accept that the residents of this development will, like other residents of the locality, behave appropriately.

30 Clause 13 of the LEP in effect requires that consent must not be granted for development unless the consent authority is satisfied that the proposed development is consistent with one or more of the aims of the plan and any relevant objectives and would not be contrary to the objectives of the zone. The aims of the plan are extensive and general, but involve the conservation and enhancement of the natural and built environment, the efficient utilisation of land and the provision of orderly growth with a high level of residential amenity. Relevant objectives involve the improvement and integration of new development with the local character of the locality and conservation and enhancement of the natural, cultural and environmental heritage of the area.

31 The objectives of the zone provide for the development of, inter alia, townhouses, and require that building form be in character in with the surrounding built environment and does not detract from the amenity enjoyed by nearby residents. Also development should be compatible with adjoining structures, particularly in terms of building height, and should have regard to the privacy of existing and future residents. Significant vegetation is to be retained and landscaping incorporated within the building setbacks and open-space areas. Adaptable housing is to be incorporated within the development.

32 I have considered these aims and objectives in the light of all of the evidence and the materials provided to me and accept the submission made on behalf of the applicant that the proposal would not be antipathetic to these, and hence the requirement of cl 13 is met and is not an impediment to the granting of the development consent as sought.

33 Conditions of consent have now been agreed, and the orders of the Court will therefore be that:

1. The appeal is upheld.
2. Development application No. 1808/05/ZA for the demolition of two existing dwellings and the construction of a townhouse development comprising 10 dwellings and 24 carparking spaces at No. 77 Old Castle Hill Road and part of No. 5 Gilham Street, Castle Hill, is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit A is retained.

___________________
T A Bly
Commissioner of the Court
rjs