Lonergan v The Hills Shire Council

[2013] NSWLEC 1254

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lonergan v The Hills Shire Council [2013] NSWLEC 1254

Hearing dates:

19 December, 2013

Decision date:

20 December 2013

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. The appeal is upheld.

2. Development Application No. 72/2014/HB for the demolition of existing structures and construction of a six unit, two storey, multi-dwelling house is approved, subject to the conditions of consent attached in Annexure A.

3. The exhibits, other than exhibits 1 and 3, are returned.

Catchwords:

DEVELOPMENT APPLICATION: affordable housing units; no issues; no instructions from Council for consent.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Mr Peter Lonergan (Applicant)
The Hills Shire Council (Respondent)

Representation:

Mr Graham McKee Solicitor (Applicant)
Mr Anthony Hudson Solicitor (Respondent)
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

10720 of 2013

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 72/2014/HB (the proposal) by The Hills Shire Council (the Council) for the demolition of existing structures and construction of a six unit, two storey, multi-dwelling development including two affordable housing units, at 141 Windsor Road, Northmead (the site).

1. The appeal was subject to mandatory conciliation on 6 November 2013, in accordance with the provisions of s34 of the Land and Environment Court Act 1979 (LEC Act). Agreement was reached between the parties during the conciliation conference on the basis of minor amendments made to the proposal, however as Mr Hudson did not have instructions from the Council to enter into a s34 agreement, the conciliation conference was terminated on 20 November 2013 pursuant to s34(4) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

1. Leave was granted by the Court for the Applicant to rely on amended and additional documents on 27 November, 2013 (the amended proposal). The Council did not oppose the granting of leave.

Issues

1. Based on the amended plans, the Council raises no contentions in the matter.

The site and its context

1. The site is on the eastern side of Windsor Road, on the northern corner of Anderson Road. The site contains a single dwelling house in dilapidated condition. The site has a 15.24m frontage to Windsor Road and a 61.99m frontage to Anderson Road and a site area of 990.5 sq m. The site falls 4.5 m from Windsor Road to the rear of the site.

1. There is a service station located on the southern side of Anderson Road, on the corner of Windsor Road. There is a single storey dwelling and heritage item to the north of the site, at 145 Windsor Road. There is a bowling club on the opposite side of Windsor Road.

The proposal

1. The proposal comprises four 3 bedroom units and two 2 bedroom units. The development is proposed in the form of two separate buildings, with a communal basement car park containing 8 parking spaces and storage, accessed from Anderson Road. The buildings are two storeys and constructed from face brick with terracotta clad hipped and gabled roofs.

1. Two affordable housing units are provided.

Planning Framework

1. The development is proposed pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH).

1. The site is zoned R3 Medium Density Residential under the provisions of The Hills Local Environment Plan 2012 (LEP 2012). The objectives of the zone are as follows:

· 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 encourage medium density residential development in locations that are close to population centres and public transport routes.

1. Development for the purpose of multi-dwelling housing is permissible with consent with the R3 Medium Density Residential zone. The minimum required site area for a multi-dwelling housing development under the provisions of LEP 2012 is 1800 sq m, however as the development is proposed pursuant to SEPP ARH, the proposal is classified as 'in-fill housing' under SEPP ARH and is permitted on sites with a minimum area of 450 sq m.

Public submissions

1. Four resident objectors provided evidence on site at the commencement of the s34 conciliation conference. Their concerns can be summarised as (exhibit 8):

• the proposal is not appropriate for the size of the block;
• two storeys will be imposing;
• the proposal will increase the traffic;
• concerned about the type of housing commission people that will be living in the development;
• the height and proximity of the proposal to the eastern rear boundary will have amenity impacts on the adjoining property to the east.

1. Following amendments made to the proposal, the residents who had objected to the original proposal were re-notified of the amended proposal. No further objections were received and the objectors nominated not to give evidence at the hearing.

Amendments to the proposal

1. The following amendments were made to the proposal, following the s34 conciliation conference (the amended proposal):

• the garage door was relocated from within the garage to the driveway entry from Anderson Road to prevent a car inadvertently driving into the basement and having to reverse out if the garage doors were closed;
• minor amendments were made to the layout of the basement car parking;
• the deep soil landscaping setback from the neighbour to the east in Anderson Road was increased;
• the open space area for unit 3 was relocated from the northern side to the eastern side of the unit over the driveway entry, to increase the area for planting between the development and the northern neighbour;
• the courtyard to unit 1 was reduced to increase landscaping around the corner of Windsor Road and Anderson Road;
• external louvres to prevent overlooking of neighbouring backyards were added to four bedroom windows in the northern elevation on the first floor.

1. Expert planning evidence was provided by Ms Deborah Laidlaw for the Council and Mr Andrew Minto for the Applicant. The planning experts agreed during concurrent evidence to the following further modifications to the proposal (included in the conditions of consent, Annexure A):

• the kitchen window to unit 3, in the northern facade on the ground floor is to have a maximum head height of 1.4m to prevent overlooking of the adjoining property, as the finished floor level of unit 3 at the north-eastern corner is approximately 1m above ground level;
• the narrow terrace on the northern side of unit 3 is to be non-trafficable and the stair to the narrow terrace are to be deleted, to prevent overlooking from the raised terrace of the adjoining property.

Conclusion

1. In considering SEPP ARH, LEP 2012 and the amended plans and documents and agreed conditions of consent (Annexure A), I am satisfied that there is no reason why consent should not be granted to the amended plans.

Orders

1. The orders of the Court are:

1.   The appeal is upheld.

2.   Development Application No. 72/2014/HB for the demolition of existing structures and construction of a six unit, two storey, multi-dwelling house is approved, subject to the conditions of consent attached in Annexure A.

3.   The exhibits, other than exhibits 1 and 3, are returned.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 14 January 2014