Lanvin v Hunters Hill Council

[2007] NSWLEC 179

Land and Environment Court

of New South Wales

CITATION:	Lanvin v Hunters Hill Council [2007] NSWLEC 179
PARTIES:	APPLICANT Tana Lanvin RESPONDENT Hunters Hill Council
FILE NUMBER(S):	11172 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- alterations and additions to an existing dwelling - height - setbacks - character - streetscape
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 Hunters Hill Local Environmental Plan No. 1
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	27/03/07
EX TEMPORE JUDGMENT DATE:	27 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor SOLICITORS Storey & Gough RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 March 2007

11172 of 2007 Tana Lanvin v Hunters Hill Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 06/1132 by Hunters Hill Council (the council) for alterations and additions to an existing dwelling at 1 Chevalier Crescent, Hunters Hill (the site).

2 The proceedings were heard as an On Site Hearing on 27 March 2007 and the judgement reflects the contents of the Statement of Basic Facts and the findings given on-site. As directed, no expert evidence was provided and there were no objections when the development application was advertised.

The site and surrounding area

3 The site is Lot 14 in DP 806848. It is irregular inn shape with a frontage of 15.545 m, side boundaries of 46.130 m and 38.6 m and a rear boundary of 35.325 m giving a site area of 1003 sq m. The surrounding area is predominantly residential in nature with a range of dwelling types although the dwellings in Chevalier Crescent are consistently large detached dwellings of two and three storey construction on lots of a similar size to the site.

4 The site forms part of the planned residential development of a former industrial site at Pulpit Point in the 1980’s.

The proposal

5 The proposal provides for major modifications to the existing dwelling. In general, the alterations and additions swap the living areas from the ground floor area to the first floor area and bedrooms on the first floor to the ground floor area. This involves extending the dwelling towards Chevalier Crescent on both levels although not extending beyond the building alignment established by an existing double garage. Excavation for additional floor area at the rear of the dwellings is also proposed. Overall, the floor area increases from 543.9 sq m to 769.6 sq m (excluding balconies).

Relevant planning controls

6 The site is zoned Residential 2(a2) under Hunters Hill Local Environmental Plan No. 1 (LEP 1). The proposed use is permissible with consent within this zone. The relevant requirements are Height of buildings (cl 15), Garden Area (cl 16A), Foreshore Scenic Protection Area (cl 18A) and Conservation Areas (cl 19A).

7 Development Control Plan No. 15 - Residential Development (DCP 15) applies. The relevant requirements are Planning Policy - All Development - Objectives (cl 3), Planning Policy - Heritage Conservation Areas (cl 4), Height (cl 7.1), Front, Side and Rear Setbacks (cl 7.2) and Impact on streetscape (cl 8.3.3).

The issues

8 The council filed a Statement of Issues containing 7 individual issues and a number of sub issues. These can be grouped into the following main areas:

1) whether the S tate Environmental Planning Policy No. 1 - Development Standards (SEPP 1) objection to the height development standard is well founded.
2) whether the SEPP 1 objection to the garden area development standard is well founded.
3) whether the front and side setbacks are adequate.
4) whether the proposed development will have an unacceptable impact on the streetscape and character of the area, including the design, materials and alterations to the garages.
Height

9 Clause 15(2) provides the building shall not contain more than two-storeys (cl 15(2) (a)) and have a height greater than 7.2 metres (cl 15(2) (b)). Storey and height are defined in LEP 1. It was agreed that the proposal exceeded both the storey and height requirements. The extent of the height exceedance was marked on the architectural plans.

10 The applicant provided a SEPP 1 objection that addressed the questions raised in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 to show why a variation to the development standard was well founded. As LEP 1 does not contain objectives for the height development standard, the SEPP 1 objection adopts the objectives from the height control in DCP 15. The relevant objectives are:

(a) To avoid the adverse impacts associated with the excessive height, bulk and scale of development within the existing residential area;
(b) To ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality;
(c) To maintain and enhance the varied domestic scale, form and character of the residential area;
(d) To minimise visual impact, disruption of use, loss of privacy losses sunlight to existing residential development;

11 The SEPP 1 objection states that the height exceedance is not excessive and that the height, bulk and scale is not beyond the usual proper limit, given the nature of surrounding development. In terms of streetscape, Chevalier Crescent contains a diverse mix of architectural styles and an array of building forms. The additional height will not be visible to users of Chevalier Crescent as firstly, the area of roof which exceeds the height is located towards the centre of the roof and secondly, the fall of the natural ground level towards the street will restrict viewing of the dwelling. Overall, the proposed height will have no impact on the streetscape of Chevalier Crescent.

12 With the benefit of the site view, I not satisfied that the exceedance of the height development standard is consistent with the objectives of the height standard even taking into account that the height standard was 8 m when the dwelling was originally approved. The proposed additions generally place the additional floor space at the front of the dwelling and closer to Chevalier Crescent. The new lounge room on the upper level now occupies roof area above the existing lounge. This has the effect of bringing forward the bulk of the building by some 6 m. Similarly, the new dining room on the upper level is to extend some 4 m closer to the street. When combined with the lower residential level and garage level, the dwelling now has a clear three-storey appearance from Chevalier Crescent that that runs for approximately 17 m with little articulation. A 3.2 m x 3.2 m portico is also proposed in the front setback area and unnecessarily impacts on the generally landscaped front setbacks in the area.

13 This compares unfavourably to the existing height, bulk and scale of other dwellings in Chevalier Crescent. The site view revealed that the predominant character is large residential dwellings on lots of similar size to the site consisting of predominantly two-storey construction and in some examples a third storey is visible from the street. In these cases, the third storey is generally small in size, set well back from the lower levels and recessive in the streetscape. The design of buildings is also generally highly articulated with multiple setbacks, architectural features to break up the bulk of the building and varied roof designs. In my view, the proposal would be in direct contrast to the established domestic scale and character of Chevalier Crescent because of its overt three-storey construction, bulk and massing of the building at the setback area and the portico structure in the front setback area.

14 Mr Cole, for the council urged the Court to further find that the appearance of the proposal was inconsistent with the Foreshore Scenic Protection Area requirements in cl 18A and the Conservation Areas requirements in cl 19A in LEP 1. With the benefit of a view from an area near the Parramatta River and an estimate of the extent of proposed alterations and additions I do not accept that the appearance from this area would support the refusal of the development application for this reason.

15 Even accepting that the site is located within a Conservation Area, I also do not accept that there are any heritage reasons why the application should be refused. The character of the locality is made up of new dwellings constructed the 1980’s with no perceivable link to any heritage item or qualities that underpin the Conservation Area in other parts of the local government area and where heritage considerations are likely to be more important and play a much larger part in any assessment of a development application.

16 For these reasons I find that strict compliance with the development standard is reasonable and necessary in this instance and it follows and that the SEPP 1 objection is not well founded. The appeal must fail for this reason however I will briefly deal with the other issues.

Garden Area

17 Clause 16A(2) provide that consent must not be granted unless the allotment has a garden area equal to or greater than 50% of the area of the allotment. Garden area is defined in cl 16A(1). The parties disagreed whether the proposal satisfied cl 16A(2). The council maintained that the proposal provided only 48.5% garden area whereas the applicant maintained that the proposal exceeded the 50% requirement.

18 The differences between the parties centred on the definition of garden area. For caution, the applicant provided SEPP 1 objection. As approval cannot be granted, is not necessary to make any findings on the differences in the interpretation of the definition of garden area but adopting the worst case scenario (i.e., the council's position) and having read the SEPP 1 objection I am satisfied that the variation to the development standard could be supported.

Setbacks

19 Clause 7.2 of DCP 15 provides requirements for front, side and rear setbacks. The clause does not provide numerical requirements for the front setback but relies on an assessment of allotment dimensions, character of the street and setbacks of the buildings in the street. In this case, the existing setback to one double garage and is not to be changed although the adjoining double garage will be brought forward to a similar setback to the other double garage. In my view, the front setback is acceptable; the unacceptable impact on the streetscape being the bulk and massing of the building at the upper levels.

20 Clause 7.2.3 provides for a minimum site setback to 1.5 metres although exceptions to the setbacks provisions are provided in cl 7.2.5, including encroachments such as balconies, verandahs and porches. As the proposal provides for a 1 metres setback from a balcony in only one location along the side boundary, I accept that a variation can be supported in this case.

Other issues

21 The issues of streetscape and character of the area have been addressed previously where it was found that the proposed development will have excessive height, bulk and scale and not be compatible with the height, bulk and scale of the existing character of the locality when viewed from the street. For reasons mentioned previously the issues of materials and design is best considered in the local context rather than the broader Conservation Area context.

Orders

22 The Orders of the Court are:

1) The appeal is dismissed.
2) DA 06/1132 for alterations and additions to an existing dwelling at 1 Chevalier Crescent, Hunters Hill is refused.
3) The exhibits are returned.
___________
G T Brown
Commissioner of the Court