Hunters Hill Developments Pty Ltd v Hunters Hill Council

[2016] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hunters Hill Developments Pty Ltd v Hunters Hill Council [2016] NSWLEC 1180

Hearing dates:

15, 16 and 29 February 2016

Date of orders:

19 May 2016

Decision date:

19 May 2016

Jurisdiction:

Class 1

Before:

Tuor C

Decision:

(1)   The appeal is dismissed.
(2)   The development application (DA2015/1078) for the demolition of the existing buildings and construction of a three storey residential flat building containing 18 units with basement parking for 28 cars at 9-15 Ryde Road, Hunters Hill, is refused.
(3)   The exhibits, except Exhibit 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION: Residential flat building. Height, bulk and scale; impact on streetscape and significance of heritage conservation area; residential amenity.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Hunters Hill Local Environmental Plan 2012
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development

Cases Cited:

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
Zhang v Canterbury City Council [2001] NSWCA 167.

Category:

Principal judgment

Parties:

Hunters Hill Developments Pty Ltd (Applicant)

  Hunters Hill Council (Respondent)

Representation:

Counsel:
Mr J Robson SC (Applicant)

 

Mr M Staunton (Respondent)

 

Solicitors:
Mr C Drury, Sparke Helmore (Applicant)

  Mr J Cole, HWL Ebsworth Lawyers (Respondent)

File Number(s):

10751 of 2015

Judgment

1. Hunters Hill Developments Pty Ltd (applicant) is appealing under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application (DA2015/1078) by Hunters Hill Council (council) for demolition of the existing buildings and construction of a three storey residential flat building (RFB) containing 18 units with basement parking for 28 cars at 9-15 Ryde Road, Hunters Hill (site).

2. The key contentions in dispute are whether:

1. the bulk and scale of the proposal is an overdevelopment of the site and inappropriate in its context (Contention 1);

2. the proposal is inconsistent with the streetscape, design and form of surrounding development (Contention 2);

3. the proposal compliments and improves the HCA and appropriately responds to heritage items in the vicinity (Contention 3);

4. the proposal will adversely impact on the amenity of neighbouring properties, particularly overlooking (Contention 5);

5. the proposal is not consistent with the design principles in State Environmental Planning Policy 65–Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (RFDC);

6. Matters raised by objectors (Contention 9).

3. The contentions in relation to tree removal (Contention 4) and stormwater (Contention 6) were resolved by conditions and the contention in relation to inadequate information was resolved by the provision of further information, although details of the gross floor area (GFA) of the proposal remain unresolved (Contention 8).

Site and locality

4. The site is located on the north eastern side of Ryde Road, near its intersection with Gladesville Road. It comprises three allotments (Lots 3, 4 and 5 DP 7691) with a combined frontage of 36.57m to Ryde Road and a depth of 46.925m on its north western boundary and 54.375m on its south eastern boundary with a total area of 1896sqm. The site is flat with vegetation and trees on the site, including a large Blue Gum Tree and Fig tree located in the front setback of 15 Ryde Road. Each allotment is developed with a single storey dwelling.

5. Adjoining the site on Ryde Road and at the rear on Avenue Road, are dwelling houses. Directly opposite the site, across Ryde Road, is a recent three storey mixed residential commercial development that adjoins Fig Tree Park.

6. Surrounding development to the north west along Ryde Road is single storey detached dwellings. There is a recent medium density residential development at 22-27 Ryde Road, older RFBs near the corner of Figtree Road and a service station with a commercial development opposite. The rear of the site is characterised by detached houses in landscaped settings on large allotments that front Avenue Road.

7. At the corner of Ryde Road and along Gladesville Road is a neighbourhood centre with older commercial buildings and recent mixed use residential commercial developments.

Background and proposal

8. The development application for the site was lodged on 15 May 2015 and notified to nearby properties. The application was considered by council’s Conservation Advisory Panel (Panel) prior to and after lodgement. The Panel raised a number of concerns with the proposal, which reflect the contentions raised by council.

9. The applicant lodged an appeal against the deemed refusal of the application on 27 August 2015. A conciliation conference under s34 of the Land and Environment Court Act1979 was held. The parties did not reach agreement and the conference was terminated.

10. The application seeks consent to demolish the existing structures and construct a three storey RFB with 18 units (2 x 1 bedroom, 12 x 2 bedroom, 4 x 3 bedroom) and basement parking for 28 cars with vehicular access off Ryde Road.

Statutory framework

11. The site is zoned R3 Medium Density Residential under Hunters Hill Local Environmental Plan 2012 (LEP) and the proposal is permissible with consent. The R3 zone extends along Ryde Road to Figtree Road and to north west of Figtree Park. The objectives of the R3 zone that, under cl 2.3(2), the consent authority must have regard to are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that development is compatible with the character and heritage of the locality.

• To provide for levels of amenity that are reasonable for a medium density residential environment.

12. Clause 4.3 of the LEP provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Height Map shows a maximum height of 10m for the site. The objectives of the height standard are:

4.3 Height of buildings

(1) The objectives of this clause are as follows:

(a) to specify limits for the size and scale of development that would be compatible with the character, amenity and potential of particular locations,

(b) to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in the low density residential zone, heritage conservation areas and foreshore areas facing Lane Cove River or Parramatta River,

(c) to consolidate developments that would be taller than two storeys in business zones, while ensuring a suitable visual transition to the adjoining zones,

(d) to protect existing dwellings from excessive overshadowing, loss of privacy, obstruction of views and general visual impacts.

13. Clause 4.4 of the LEP provides that the maximum floor space ratio (FSR) of a building on any land is not to exceed the floor space ratio shown for the land on the FSR Map. The FSR Map shows a maximum FSR of 0.6:1 for the site. The site is also within “Area 2” on the FSR Map and under cl 4.4A the maximum FSR for a residential flat building on land in the Hunters Hill Village that has a site area of 1,000sqm or more is 0.8:1. The objectives of the FSR standard are:

4.4 Floor space ratio

(1) The objectives of this clause are as follows:

(a) to specify limits for the size of development that would be compatible with the character and potential of particular locations,

(b) to encourage higher-intensity development in business zones that are well-serviced by public transport and shops,

(c) to manage the density and intensity of multi unit residential development according to the purpose of each residential zone,

(d) to encourage buildings that maximise the proportion of site area that may be retained as landscaped area.

14. The site is within the General and Landscape Heritage Conservation Area No 1–The Peninsular (C1 HCA), which extends across the majority of the Hunters Hill Peninsula. It is also within Figtree Subdivision Heritage Conservation Area (C450 HCA), which is largely confined to the land between Ryde Road and Avenue Road and includes part of the commercial centre on Gladesville Road. C450 HCA partially reflects the extent of the 1882 subdivision, which was re-subdivided in 1914. The site is within the vicinity of a number of heritage items, including 1 and 3 Ryde Road and 12, 20, 22, 24 and 26 Avenue Road. Clause 5.10 of LEP 2012 includes provisions which require that the effect of the development on the heritage significance of the HCAs is considered.

15. Hunters Hill Development Control Plan 2013 (DCP) applies to the application. Part 2 of the DCP provides general requirements which apply to all development applications that include Character (2.2) and Heritage Conservation (2.4). Part 3 provides specific requirements for residential development. Part 3.4 applies to Multi Unit Residential including RFBs. Part 3.4.7 includes Special Controls for the Ryde Road Precinct, which extends along the north eastern side of Ryde Road, between Figtree Road and Gladesville Road and contains the site. These controls include Strategic Objectives, Height, Setbacks, Landscaped Areas, Built Forms and Facades. In summary, the form of development envisaged by these controls for the precinct is two storey and an attic within a pitched roof with eaves and traditional dormers and an articulated building that reflects the existing subdivision pattern and is within landscaped setback areas. The key disagreement between the parties is the relevance of these controls and the proposal’s achievement of the objectives of the controls.

16. Land to the north and north east of the site is within the R2 Low Density Residential zone and to the south and south east of the site is within the B4 Mixed Use zone under LEP 2012. The R2 zone has a maximum height of 8.5m and the B4 zone has a maximum height of 11m and a maximum FSR of 1.5:1.

17. SEPP 65 as in force when the development application was lodged applies to the development. It provides design quality principles (cll 7-18) and requires a consideration of the design quality of the development when evaluated in accordance with the design quality principles (cl 30(2)(b)) and the RFDC (cl 30(2)(c)).

The evidence

18. The Court visited the site and heard from objectors whose principal concerns were that the height, bulk and scale of the proposal was not compatible with the character of the area and its heritage significance. They noted that there had been significant community consultation in the preparation of the DCP and that this sought to provide new development, which respected the existing character. In particular, they were concerned about the three storey form and flat roof of the development and the impacts on privacy, solar access and loss of landscaping. They were also concerned about the increased traffic and demand for parking generated by the proposal.

19. Mr N Dickson and Mr N Juradowitch, for the applicant, and Mr B McDonald, for the council, provided urban design and planning evidence. Mr G Brooks, for the applicant, and Mr G Patch, for the council provided evidence on heritage issues.

Proper planning approach

20. Mr Robson SC, for the applicant, outlined the following approach to the construction and interpretation of the statutory and non – statutory planning instruments:

Principles of statutory construction in relation to planning instruments are well known: see Dobrohotoff v Bennic [2013] NSWLEC 61; 194 LGERA 17 at [34]-[36], referring to s 33 of the Interpretation Act 1987, Cranbrook School v Woollahra Council (2006) 66 NSWLR 379; 146 LGERA 313 at [36]-[46] and [63]; Matic v Mid Western Regional Council [2008] NSWLEC 113 at [7]-[9]; Wilson v State Rail Authority (2011) 78 NSWLR 704 at [12]-[13] and Wollongong City Council v Vic Vellar (2010) 178 LGERA 445 at [39]

The fundamental principles in relation to "determining the meaning of a provision in an environmental or planning instrument" are now clear. "Although 'concepts of context and purpose are broad in scope', the proper interpretation of a planning instrument is 'not to be discerned by reference to pre-conceived ideas or vague notions of what might or might not be desirable'" (Dobrohotoff at [35]).

In Dobrohotoff (adopting earlier authority), Pepper J, at [36], was careful to note that "when determining the objective intention of the court should avoid a construction of the instrument that produces irrationality or absurdity", and noted that planning instruments are "not always drafted with pellucid clarity or with a keen eye to taxonomy" (Olsson v Goulburn (2010) 176 LGERA 71 at [15].

The relationship between an LEP and a DCP is well-known and very recently (18 February 2016), Basten JA noted (In Elachi v Council of City of Shoalhaven [2016] NSWCA 15 at [27]) that there is a "clear hierarchy of legislative instruments, with the EP&A Act at the apex, environmental planning instruments at the second level (with an internal hierarchy), each involving a level of public consultation and Ministerial control, and finally, DCPs as a mechanism permitting certain matters of detail and guidance to be specified without any equivalent level of public involvement. The relevance of these considerations is reflected in the objects of the EP&A Act, which include the provision of 'increased opportunity for public involvement and participation in environmental planning instruments'." (emphasis added) The other objects are well known.

Section 79C(3A) Introduced in 2012 and commenced operation in March 2013. It states:

(3A) Development control plans.

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a)   if those provisions set standards with respect to an aspect of the development and the application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and

(b)   if those provisions set standards with respect to an aspect of the development and the application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)   may consider those provisions only in connection with the assessment of that development application.

Council seeks to promote "more onerous standards" and does not, in any event, "amount to being...flexible in applying those provisions" and does not embrace to wording "allow reasonable alternative solutions".

21. Mr Staunton, for the council, accepted this approach and the hierarchy of instruments but not the conclusions drawn by Mr Robson. He submits that while the LEP contains “primary” or “core” controls these are not limited to zoning, and numerical maximums of height and FSR but also includes heritage controls, which he submits:

……are contained in the aims of the plan (clause 1.2), the objectives of the R2 & R3 zones (land use table), the objectives of the height control (clause 4.3), the objectives of the FSR control (clause 4.4) and the core heritage controls (clause 5.10).

It is relevant to understand how the LEP operates. The land use table is called up by clause 2.3. Clause 2.3(2) requires the Court to have regard to the objectives of the zone when determining a DA. Importantly clause 2.3(4) states that clause 2.3 is subject to other provisions of this plan. All of the heritage controls are other provisions of this plan. The zoning and permissible form of development are subject to the heritage provisions.

It is also important and relevant to note that the height and FSR standards (including the consolidation "incentive) contained in the LEP are not non-discretionary development standards. They are maximums not minimums. The constraints of the site may well mean that the maximum cannot be achieved. The R3 zone permits residential accommodation in the form of dwelling houses, dual-occupancy, multi-dwelling housing, secondary dwellings, semi detached dwellings as well as residential flat buildings. The form of the development needs to be compatible with all of these forms of the development and may well have to also yield to the heritage controls.

Section 74BA(1) of the EP&A Act provides:

The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development:

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

A particular aim of the LEP is to conserve European heritage that influence the character and identity of the municipality. This aim is given effect by clause 5.10 which identifies the locality as being within 2 heritage conservation areas. Clause 5.10(4) requires the Court to consider the effect of the proposed development on the heritage significance of those heritage conservation areas. The DCP provides guidance as to how to give effect to the aims of the plan, how to achieve the objectives of the zone and how to facilitate permissible development.

The DCP contains general guidance in part 2 and specific guidance in part 3.

The applicant's designer and consultants have not given proper consideration to the planning controls. They have focused on bare permissibility and numerical standards and ignored the qualitative controls that have been adopted to protect the special heritage character of the locality.

22. Furthermore, Mr Staunton submits that SEPP 65, is higher in the hierarchy of statutory planning instruments and provides core controls, which include the design quality principles to which regard must be had and these in turn require consideration of exiting and desired future character, which is established by the DCP.

Heritage, planning and urban design

23. Mr Brooks and Mr Patch generally agreed that the locality of the site has:

…two distinct characters, based primarily on their historic subdivision pattern and subsequent development. The Ryde Road Precinct reflects a pattern of 20th century suburban development that differs considerably from the traditional 19th century villa/garden suburb character that is the most widely recognised identity of Hunters Hill.

The Ryde Road Precinct, which now largely comprises the long row of small single storey cottages dating primarily from the inter war period, set on narrow sites that reflect their relationship to an important but busy road corridor.

The lots along this frontage were originally formed as part of the subdivision known as DP 988. They were partly re-subdivided in 1914 and their average width increased from 30 feet to 40 feet. This increase reflected the change in perceived status of this land from the late 19th century artisan dwellings to support the larger villa style residences in Avenue Road and elsewhere to post World War One middle class residences, of a scale and form that was spreading to the west from the historic core centred on Gladesville Road and Burns Bay Road.

24. The experts agree that the significance of the C450 HCA is primarily the later 1914 subdivision pattern.

25. The key disagreement between Mr Patch and Mr Brooks relates to the form of development in the Ryde Road Precinct envisaged under the R3 zoning. Mr Patch considered that the intent of the R3 zone in the Precinct is set out in the specific controls in the DCP which anticipate that medium density development will occur but in a manner that is consistent with the character and forms of adjoining heritage items and conservation areas. In his opinion, development would evolve and single dwellings would co-exist with RFBs and other uses such as multi-dwelling housing and dual occupancies, which are also permissible within the zone. The proposed development is more consistent with the form of development envisaged for the adjoining R4 zone and does not provide an appropriate transition to the R2 zone at the rear of the site. In particular, he considered the proposal does not respond to the existing subdivision pattern and the three storeys with a flat roof do not provide a compatible form of development. In his opinion, there is no impediment to providing a RFB on the site with two storeys and a pitched roof that reflects the rhythm of the subdivision pattern and the form and scale of existing buildings. He noted that this had been achieved in the streetscape presentation of the recent development at 25-27 Ryde Road.

24. Mr Brooks held the contrary view that the R3 zone permits medium density housing with greater building height and FSR, and this will “progressively be rolled out” to replace the current buildings. He considered it unrealistic to expect that development which responds to the medium density controls in the LEP to emulate the scale of existing single storey development. There is a “tension” between the DCP controls and the expectations under the LEP and it may not be feasible to have two storeys plus an attic under the 10m height control, provide setbacks to reflect the subdivision pattern and achieve the permissible FSR. Nevertheless he considered the proposal was compatible with existing development and that 1, 2 and 3 storey development can co-exist comfortably. Similarly, it is not realistic to replicate the existing subdivision pattern but the proposal achieves appropriate articulation and streetscape outcomes, including the retention of the Fig tree on the site and the street trees.

25. Mr McDonald held similar opinion to Mr Patch. In particular, he considered that the proposal would read as three storeys from across Ryde Road, the park and the houses in Avenue Road. The “mansard” roof is not an attic and will read as a third storey, which is exacerbated by its unbroken horizontal ridge and the size and number of “dormers” which are not traditional in form. The building is not broken up to reflect the pattern and rhythm of the existing subdivision and streetscape. The proposal is not compatible with the existing character of the area and not what is sought by the DCP. He accepts that a RFB would be larger and of a different scale and form to the existing development but that it would be feasible to provide a RFB in the two storey with pitched roof and attic form that would comply with the DCP and LEP and achieve greater compatibility. He raised issues about areas in the plans that were not shown as GFA and consequently considered that the proposal did not comply with the permissible FSR under the LEP. He also considered the “interesting architectural devices” such as thickened walls and recessed doors and windows are not GFA but would add to the bulk of the building and served little purpose.

26. Mr Juradowitch and Mr Dickson opinions reflect those of Mr Brooks that the form of development is determined by the medium density zoning and the core controls of height and FSR in the LEP with which it complies. The proposal achieves an acceptable level of compatibility due to its significant setbacks, particular the rear setback at the ground level which exceeds the requirements of the DCP; its landscaping and retention of the Fig Tree; the articulation in both the horizontal and vertical plane; and the set back of the top floor from the floors below in a mansard roof form that would achieve a two storey scale and appearance from the front and rear.

27. Mr Dickson agreed some of the areas identified by Mr McDonald would be GFA but overall there would be no net gain and the proposal would comply with the permissible FSR. He also noted that the proposal uses “interesting architectural devices” to break up the mass of the building, although he acknowledged that some of these devices would not be readily perceived.

28. The experts held different opinions of whether the proposal would provide an acceptable transition to the properties to the rear in Avenue Road in the R2 zone. Mr McDonald considered the three storey bulk in one continuous form and the large dormer windows would not achieve an appropriate transition. Whereas Mr Juradowitch and Mr Dickson, considered that this would be achieved by the significant setbacks, articulation and landscaping.

29. The experts also disagree on whether the proposal would have an acceptable impact on the amenity of adjoining properties, particularly the potential for overlooking from Units 12, 13 and 17 to the rear of the properties in Avenue Road. Mr McDonald considered the overlooking to be unacceptable as it resulted from dormer windows which did not comply with the orientation, size or number in the DCP and from windows and terraces that would directly overlook the existing residential properties in Avenue Road and were also not envisaged under the DCP. Mr Juradowitch considered the dormers, windows and terraces exceeded the setback requirements in the RFDC and would be offset to prevent direct overlooking as well as intermediate landscaping, although he acknowledged that no sight lines had been prepared to demonstrate the offsetting and overlooking.

Findings

32. The “core” controls in the LEP include objectives of the LEP (cl 1.2), and the R3 zone (cl 2.3), which seek to ensure that development is compatible with the character and heritage of the locality. Notably the zoning in cl 2.3 is subject to the other provision of the LEP (cl 3.2(4)), including the heritage controls in cl 5.10 as well as the height and FSR controls. The objectives of the height control seek to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in HCAs (cl 4.3(1)(b) and consolidating developments that would be taller than two storeys in business zones. (cl 4.3(1)(c)). Similarly, an objective of the FSR control specifies limits for the size of development that would be compatible with the character and potential of particular locations (cl 4.4(1)). The intent of the LEP controls is compatibility with the character and heritage of the locality. The DCP then provides guidance as to how that compatibility should be achieved consistent with s 74BA(1) of the EPA Act.

33. The DCP is a mandatory relevant consideration under s 79C(1)(a)(ii) of the EPA Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). The consent authority is not entitled to put aside the standard set by the DCP and apply its own standard of what is reasonable (see Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226). Section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is to “allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”.

34. The specific controls in Part 3.4.7 of the DCP provide guidance for multi-unit residential development, including RFBs, in the Ryde Road Precinct and relevantly include:

STRATEGIC OBJECTIVES

Strategic objectives in relation to the Ryde Road Precinct are:

(a) Provide a transition in scale and density to low density residential areas, heritage items and conservation areas that are located immediately to the north.

(b) Ensure reasonable compatibility with the underlying historic subdivision pattern via suitably articulated buildings and landscaping.

(c) Respect the scale and form of existing buildings.

(d) Minimise amenity impacts upon adjoining properties, particularly in relation to overlooking and visual impact.

(e) Provide satisfactory landscaping as an element of each development.

HEIGHT

Objectives

Within the Ryde Road Precinct, objectives in relation to building height are:

(a) Respect the scale and form of existing buildings.

(b) Minimise amenity impacts upon adjoining properties, particularly in relation to overlooking and visual impact.

Controls

Development standards in the Hunters Hill LEP 2012 are relevant to this section:

(a) Height of buildings is specified by clause 4.3.

Development proposals should comply with the following requirements which complement objectives of the Hunters Hill LEP 2012 in relation to height of buildings:

(a) Facing Ryde Road, maximum building height should not exceed two storeys which should be measured in relation to ground level (existing) immediately below.

(b) Buildings may incorporate an attic level that is contained beneath a pitched roof.

(c) Basement parking should not protrude more than 0.5 metres above existing ground

level.

Notes. Storey is defined by the Hunters Hill LEP 2012, and does not include an attic or mezzanine (also defined), or a basement where the floor level of the storey immediately above is less than 1 metre above ground level (existing).

Ground level (existing) is defined by the Hunters Hill LEP 2012.

…….

BUILT FORM & FACADES

Objectives

Within the Ryde Road Precinct, objectives in relation to built form and the design of facades for multi-unit residential developments are:

(a) Maintain positive aspects of existing character in this precinct.

(b) Protect the amenity of adjoining residential properties.

Controls

Development proposals should comply with the following requirements:

(a) Where development sites would incorporate more than one original allotment, building forms should reflect the pattern and rhythm of the existing subdivision.

(b) Only one access driveway should be provided for each development site.

(c) Buildings should have a two storey appearance, and may include an attic level within the roof space:

(i) Pitched roofs above attics should not be steeper than 45 degrees or less than 27 degrees: flat pitched roofs are not acceptable.

(ii) Dormer windows should not be oriented toward a rear boundary, should not be wider than 1.2 metres or taller than 0.9 metres, and there should not be more than two dormer windows per existing allotment or more than one dormer for every 6 metres of exterior wall.

(d) For developments that comprise multi dwelling housing, no single building should contain more than six dwellings which have an identical façade in order to avoid an undesirable visual impact.

(e) Facades that face a rear boundary:

(i) Should step in height, according to the setback controls in this section.

(ii) Should not incorporate a single unbroken plane which is wider than

9 metres without a step of at least 1 metre, or a full height recess.

(iii) Should not incorporate windows, balconies or terraces that would directly overlook existing residential properties in Avenue Road.

(iv) Should incorporate details that provide visual interest, such as sun shades and some degree of variation for materials and finishes.

35. The application does not comply with these controls and the key question is whether the proposal provides “reasonable alternative solutions that achieve the objects of those standards”. For the following reasons, I accept the evidence of Mr Patch and Mr McDonald that it does not.

36. Firstly, the articulation of the proposed buildings does not achieve reasonable compatibility with the underlying historic subdivision pattern, which the heritage experts agree is the essence of significance of C450 HCA. The ground and first floor of the building fronting Ryde Road provides two recesses about 1m wide x 0.5m deep as well as articulation through the use of materials and balconies. However, the location of the recesses and the articulation does not adequately reflect the existing pattern and rhythm of the subdivision pattern. The building would appear as one structure built over three allotments and is not compatible with the finer grain of development in the Precinct, including the recent development at 25-27 Ryde Road, which provides a 2.5m wide gap and appears as two separate buildings from the street. Although, the gap in that development is not in the exact location of its existing lots, the council’s experts and a number of the objectors agree that it achieved an acceptable streetscape outcome that adequately reflected the existing subdivision pattern and form of development. More significant recesses could be provided in the proposal to better achieve reasonable compatibility with the subdivision pattern. Significant recesses have been provided to the southern side and rear elevations of the proposal, which appear to serve little purpose other than to not be included as GFA in the development.

37. Secondly, the “mansard” roof will be seen from vantage points in the surrounding area, including the opposite side of Ryde Road, the park and the properties to the rear. The “mansard” roof will read as a third storey due to the number of large dormer forms, which create a vertical plane. The “mansard” also forms a horizontal flat roof that is not broken into smaller elements, which would be the case if pitched rooves were provided that contained attic accommodation. Although the upper level is setback and different in appearance to the floors below, the form of the development will appear as three storeys with a flat roof, which does not reflect the scale and form of existing buildings.

38. Thirdly, the proposal does not maintain positive aspects of existing character in this precinct. Part 2.2.3 of the DCP identifies the existing character of Hunters Hill, including the Precinct, and the desired future character controls generally seek to maintain and enhance this existing character. A positive aspect of the existing character is identified as pitched roofs with eaves. Even though the Precinct will undergo change this aspect is sought to be retained in new developments.

39. The R3 zone permits a range of residential uses, including dwelling houses, dual occupancies, multi-dwelling housing and RFBs. The objectives and controls for the precinct seek to permit increased density while providing new development that is compatible with the form and scale of existing development and maintaining positive aspects of the existing character. This recognises that the area will “evolve” and that existing dwellings will be replaced over time with new residential development, but that this may take different forms. Furthermore, the DCP also seeks to provide an appropriate transition from the increased density in the Precinct to that of the low density residential development in Avenue Road. The proposal does not achieve this transition. It is a form of development that is more akin to that envisaged for the adjoining R4 zone in the Village Centre and therefore also does not provide an appropriate transition to that area.

40. Furthermore, the objective of the height control seeks to maintain the character and identity of Hunters Hill by limiting the scale of buildings to a maximum of two storeys in HCAs and to consolidate developments that would be taller than two storeys in business zones, while ensuring a suitable visual transition to the adjoining zones. There are R3 zones that are not within HCAs but the Precinct is within two HCAs and consequently what is sought for this area under the LEP is a two storey scale, which is not achieved by the development.

41. The DCP controls are not more onerous than those in the LEP. A two storey form of development with a pitched roof could be achieved within the 10m height limit under cl 4.3 of the LEP. The experts disagree on the FSR of the proposal, and I accept Mr McDonald’s evidence that the proposal would exceed the FSR control. Although, it was agreed during the hearing that if other aspects were acceptable the applicant would be given the opportunity to reduce the FSR to comply or to provide a written request under cl 4.6 of the LEP to seek to justify any exceedance. Whether or not the proposal technically exceeds the FSR control in cl 4.4A of the LEP, there are areas which add bulk to the building or which appear to serve no purpose, such as the excessive ducts, access corridors, partially enclosed areas and “interesting architectural devices”. These areas result in a building envelope that, with better planning, could readily accommodate more GFA but would exceed the maximum FSR or could be reduced to better respond to the form and scale of an envelope envisaged by the DCP.

Orders

1. The appeal is dismissed.

2. The development application (DA2015/1078) for the demolition of the existing buildings and construction of a three storey residential flat building containing 18 units with basement parking for 28 cars at 9-15 Ryde Road, Hunters Hill, is refused.

3. The exhibits, except Exhibit 1, are returned.

Annelise Tuor

Commissioner of the Court

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Decision last updated: 19 May 2016