Litting v Hunters Hill Council

[2005] NSWLEC 636

Land and Environment Court

of New South Wales

CITATION:

Litting v Hunters Hill Council [2005] NSWLEC 636

PARTIES:

Applicant:
Ken Litting

Respondent:
Hunters Hill Council

FILE NUMBER(S):

10228 of 2005

CORAM:

Roseth SC

KEY ISSUES:

Development Application :- impact on censervation area
impact on neighbours

DATES OF HEARING:

16/09/2005 and 09/11/2005

 
DATE OF JUDGMENT: 

11/10/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr C Gough, solicitor of Storey & Gough

Respondent:
Mr G Riley, solicitor of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

10 November 2005

10228 of 2005 Ken Litting & Associates Pty Ltd v Hunters Hill Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Hunters Hill Council (the council) of a development application to demolish the existing house and erect a new dwelling house on lot 71 DP 7431, known as 18 Sunnyside Street, Gladesville. While at the beginning of the hearing on 16 September 2005 the parties were at issue, by its end they had reached agreement and sought consent orders.

The site

2 The site is on the western side of Sunnyside Crescent. It is rectangular, with a frontage of 12m and a depth of 50m, and an area of 613m2. There is a fall of 4.5m from the northwest to the southeast corner. The front of the site is 400mm above footpath level.

3 The locality is a heritage conservation area, characterised by single-storey brick cottages built in the early 1900s. Nos 2-16 and 20-52 have been identified as contributory buildings. Several houses in the area have had upper floor additions. No 16, owned by Mr S Weaver and Ms D Slack, is a partly two-storey house to the south of the subject site.

The proposal and its history

4 The applicant proposes to demolish the existing house and erect a new two-storey house over basement garage.

5 The applicant lodged the application in November 2004. Following notification, the council received seven submissions. After receiving the council’s comments the applicant lodged an amended application in January 2005. The notification of the amended application elicited seven submissions and a petition. In February 2005 the council’s Conservation Advisory Panel (CAP) considered the application and suggested further design changes. The applicant filed the appeal in March 2005.

Relevant planning legislation

6 The Hunters Hill Local Environmental Plan No 1 zones the site Residential 2(a1). The site is within the Foreshore Scenic Protection Area and a Heritage Conservation Area. Development Control Plan 15 – Residential Development (DCP 15) provides detailed guidelines for residential development.

The issues

7 The council submitted a Statement of Issues containing 5 issues. However, during the hearing the experts conferred and came to agreement on all but minor architectural details. It was as a result of this agreement that the parties agreed to consent orders. The major change to the proposal was its being lowered by 450mm. The lowering results in a reduction of the overshadowing of No 16.

The experts

8 The court had appointed Mr D Logan, an architect as the expert on the proposal’s impact on the conservation area, and Mr A Ludvik, a consultant planner, as the planning expert. Mr B McDonald, an architect, gave evidence in the council’s case. Mr C Vasilikas, an architect retained by the applicant, also gave evidence. In addition, Mr E Hanlon, an architect retained by the owners of 16 Sunnyside Street, gave evidence.

The views of nearby residents

9 The Court heard the evidence of Ms R. Colvin, who lives at 14 Sunnyside Street. In her opinion, the proposal is too bulky to fit into the street’s existing character. Mr S Weaver and Ms D Slack, who live at 16 Sunnyside Street, immediately adjoining the subject site to the south, said that they were concerned about the external appearance to the street, as well as the direct impact on them of visual bulk, overshadowing and overlooking. Mr M Harmelin, who lives at 17 Hillcrest Avenue adjoining the subject site to the rear, was concerned about loss of outlook and privacy.

10 All experts agreed that the impact on 17 Hillcrest Avenue was minor. As concerns the impact on 16 Sunnyside Street, Mr Ludvik thought that it was of a kind and intensity that would be expected when an underdeveloped site is redeveloped to its potential. He considered the impact acceptable. While Mr McDonald thought that the proposal’s impact at its original height was unacceptable, he agreed that a lowering by 450mm would make it acceptable.

Minor issues of architectural detail

11 By the end of the hearing there were only two issues on which Mr Logan and Mr McDonald disagreed, ie

· whether window F01 should be deleted,

· whether the windows to the front should be timber or aluminium of the same width as a timber window.

12 In my opinion, window F01 may stay since it is hardly visible from the street and enhances the amenity of Bedroom 1. The windows to the front of the house should be timber, in order to keep in harmony with the character of the conservation area.

Conclusions

13 The main issue in this case was the proposal’s impact on the southern neighbour, 16 Sunnyside Street. The Court-appointed planning expert, Mr Ludvik considered that the impact was acceptable. The council’s planning expert, Mr McDonald, disagreed; however, with the lowering of the building by 450mm he also considered it acceptable. I understand, of course, that the owners of No 16 are not satisfied, however, I have to take into consideration that the amenity they now enjoy is based on the underdeveloped nature of the subject site. Given that both the Court-appointed and the council’s planning expert agree that the impact is acceptable, I agreed to the making of consent orders, subject to the applicant revising the drawings to reflect the decisions that led to the consent orders.

14 On 9 November 2005 the parties agreed that the amended drawings reflected the above decisions. They also agreed on conditions and to my making these orders in Chambers. The appeal is therefore upheld by consent.

Consent orders

1. The appeal is upheld.

2. Development application to demolish the existing house and erect a new dwelling house on lot 71 DP 7431, known as 18 Sunnyside Street, Gladesville is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 1, A and B.

_________________
Dr John Roseth
Senior Commissioner