McKerrell and Lloyd v Hornsby Shire Council

[2005] NSWLEC 550

Land and Environment Court

of New South Wales

CITATION:

McKerrell and Lloyd v Hornsby Shire Council [2005] NSWLEC 550

PARTIES:

APPLICANT
Mr and Mrs McKerrell and Mr and Mrs Lloyd

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11513 of 2004

CORAM:

Brown C

KEY ISSUES:

Development Application :- subdivision - access driveway - appropriate building envelopes - private open space - character

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994

CASES CITED:

Parrot v Kiama Municipal Council [2004] NSWLEC 77

DATES OF HEARING:

20/09/05

 
DATE OF JUDGMENT: 

10/06/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan, barrister
SOLICITORS
Spiegel & Associates

RESPONDENT
Mr M Connell, solicitor
SOLICITORS
HWL Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 October 2005

11513 of 2004 Mr and Mrs McKerrell and Mr and Mrs Lloyd v Hornsby Shire Council

JUDGMENT

Introduction

1 This is an appeal against the refusal of Development Application No. 518/04 by Hornsby Shire Council (the council) for the subdivision of three existing lots into five lots at 25, 37 and 39 Belinda Crescent, North Epping (the site).

2 An inspection of the site and some adjoining properties was carried out on the morning of the first day of the hearing with representatives from both parties, local residents and Court appointed experts.

3 For the reasons set out in the judgement I have concluded that the appeal should be upheld and development consent granted subject to conditions.

The site

4 The site consists of three separate allotments with a total area of 4508 square metres. Lots 4 and 5 in DP 211420 (37 and 39 Belinda Crescent) have a direct frontage to Belinda Crescent and each are developed with a single dwelling. Lot 11 in DP 211420 (25 Belinda Crescent) is a battle-axe lot and is also developed with a single dwelling. Lot 11 is accessed by a driveway with reciprocal rights of carriageways benefiting 29, 31 and 33 Belinda Crescent. These properties use the driveway for access to car parking facilities at the rear of the lots (see Attachment 1). The existing driveway design does not satisfy Australian Standard AS 2890.1-2004 or the council design requirements and is not located fully within the right of carriageway. The driveway surface has been repaired over time and while still trafficable has a limited lifespan.

5 Lot 11 has an average grade of 24% to the eastern boundary and Belinda Crescent. Lots 4 and 5 have an average grade of 36% to the Belinda Crescent frontage.

6 Development in the area is made up of single detached residential dwellings with open space on the western side of the Belinda Crescent.

The proposal

7 The proposal involves the subdivision of three existing lots into five lots. The proposal was amended during the hearing and the amended proposal provides for:

• Lot 101 – 884.3 square metres (642.0 square metres ex-access),
• Lot 102 – 1139.0 square metres (681.0 square metres ex-access) (25 Belinda Crescent),
• Lot 103 – 777.4 square metres,
• Lot 104 – 851.0 square metres (37 Belinda Crescent) and
• Lot 105 - 857.2 square metres (39 Belinda Crescent).
  

8 The dwellings on the existing three lots are to be retained (Lots 102, 104 and 105) and building platforms provided for the new lots (Lots 101 and 103).

9 The proposal includes the upgrading of the existing right of carriageway at the expense of the applicant (see Attachment 2). The proposed right of carriageway is located wholly within the site whereas the existing right of carriageway spans the site and the properties benefiting from the right of carriageway in Belinda Crescent.

Relevant planning controls

10 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). Clause 7(2) provides that the objectives for the zone are to be taken into account before development consent is given. Clause 14(2) provides a minimum subdivision standard of 500 square metres. There was no dispute that the proposal satisfies the requirements of cl 14(2). Clause 15 provides a development is not to result in a building that exceeds a floor space ratio of 0.4: 1. As the proposed development seeks only subdivision approval, the requirement in cl 15 has limited relevance.

11 The Residential Subdivision Development Control Plan (the Subdivision DCP) also applies. The document provides a number of specific design elements for subdivision. The relevant elements relate to Density, Allotment Design, Setbacks, Private Open Space, Landscaping, Land Sensitivity, Fire Hazard, Accessway Design and Acoustics.

12 The Residential Development Control Plan (the Residential DCP) also applies. The document provides a number of specific requirements but are generally the same or similar to the requirements in the Subdivision DCP. Relevant requirements for considering hypothetical dwelling designs relate to height, number of storeys and car parking provision.

The issues

13 The council filed a Statement of Issues containing 8 issues and a number of sub-issues. The amended plans addressed a number of the original issues and the remaining issues can be conveniently grouped into the following main areas:

1) whether the proposed to driveway is appropriate considering:
• the design,
• the access point with Belinda Crescent,
• the potential loss of amenity to adjoining properties,
• the loss of access during reconstruction.

2) whether proposed Lots 101 and 103 are suitable for the erection of a dwelling considering the proposed building envelopes, the provision of private open space and the impact on the character of the area.

14 The issue of bushfire protection was addressed by the Rural Fire Service and through appropriate conditions.

15 The concerns of the local residents are addressed as part of the consideration of the above issues.

The evidence

16 The parties agreed to the appointment of Ms Deborah Laidlaw as the Court appointed town planning expert, Mr Oleg Sannikov as the Court appointed traffic expert and Dr John Cooke as the Court appointed expert on pedestrian safety.

17 Additional evidence for the council was provided by a number of local residents on the site. The Court also had the benefit of the submissions provided to the council when the application was advertised.

18 Mr Rodney Wallman, a landscape architect, provided additional evidence for the applicant.

The driveway
Design

19 The proposed driveway design was not the subject of any expert evidence at the hearing as it was considered by Mr Fraser, the council’s subdivision engineer that the proposed driveway design complied with the requirements in the Subdivision DCP. There was some disagreement from the local residents, based on a traffic report from Mr Craig McLaren, a traffic engineer, that the design and did not satisfy the standards within Australian Standard AS 2890.1-2004. The areas of disagreement relate to the driveway width and passing bay design.

20 Accepting that there is a difference in the standards of Australian Standard AS 2890.1-2004 and the Subdivision DCP, I agree that there is no need to satisfy the more stringent standards in Australian standard AS 2890.1-2004 when the Subdivision DCP requirements have been met. In my view, preference should be given to the Subdivision DCP as it has been adopted by the council after public exhibition and provides the design requirements considered appropriate for the local government area. In any event, the differences are not so significant that the adoption of the Subdivision DCP requirements are likely to have any noticeable impact on access or safety.

Pedestrian access

21 The original proposal provided for a 1 metre wide footpath and steps for the length of the proposed new driveway. The design of the footpath and steps was also an issue raised by Mr McLaren. Following discussions on-site, Dr Cooke agreed that the dedicated footpath and steps were not necessary because of the limited likely traffic generation but subject to the retention of the balustrade and appropriate treatment of the driveway surface to prevent pedestrians slipping.

22 The amended plans provide for the deletion of the footpath and steps and the use of this area for additional landscaping.

23 I accept the evidence of Dr Cooke that the proposed footpath and steps are unnecessary in this instance and can be deleted.

Amenity impacts

24 The proposed driveway raised concerns over the visual and aural privacy to the properties that had common boundaries with the driveway. The most impacted were the properties located at 23 and 27 Belinda Crescent. These properties are located on either side of the driveway at its intersection with Belinda Crescent. The potential impacts on these properties were assessed on the site view.

25 The applicant provided an acoustic report by Bassett Acoustics that recommended treatment to the driveway to protect the adjoining properties from unacceptable noise. The recommendations provide for a 1 metre high fence to the northern boundary and a 1.7 metre high fence to the southern boundary. In the consideration of the potential overlooking impacts, Ms Laidlaw suggested that the northern boundary fence should be extended to 1.7 metres to protect the visual privacy of the adjoining residents from cars and particularly pedestrians using the driveway.

26 I accept the findings of the acoustic report and the provision of the recommended fencing. Based on the concerns expressed by the residents on the potential impact on visual privacy, I also accept the suggestions of Mr Laidlaw for the extension of the northern fencing. In coming to this conclusion I acknowledge that the open outlook created by the existing lack of fencing will be lost. I also acknowledge that the reconstruction of the driveway will result in the loss of a number of existing trees that will also impact on the existing outlook from a number of residences. These matters, however, are not in my view of sufficient severity to warrant the refusal of the development application.

27 Issues relating to the potential overlooking and other amenity issues from dwellings likely to be erected on Lots 101 and 103 are best left to a time when development applications are lodged for the dwellings and any amenity impacts can be properly assessed. I note that the applicant has accepted conditions on the subdivision approval that restrict future dwellings to specific locations on the new lots and limit overall heights.

Access point

28 This issue relates to the sight distances for the vehicle leaving the driveway in both and easterly and westerly direction at its intersection with Belinda Crescent. The inadequate sight distances was a matter raised by Mr McLaren.

29 Mr Sannikov provided his evidence orally on site and stated that each new lot would generate 0.85 vehicles in peak hour based on the Roads and Traffic Authority Traffic Generating Guidelines. On this basis he concluded that there was no real difference between the existing situation and that proposed by the new subdivision. Notwithstanding this, he recommended that some work should be undertaken to improve the sight distances. In a westerly direction, he proposed that the existing street tree in front of 27 Belinda Crescent be cut back. In his assessment this would provide a sight distance of 42 metres compared to the required 45 metre sight distance in Australian Standard AS 2890.1-2004. In an easterly direction, Mr Sannikov states that a sight distance around the required 55 metres can be achieved through the trimming of a bush on the adjoining property and a setback to the proposed acoustical fencing.

30 On this issue I accept the evidence of Mr Sannikov. The trimming of the tree to provide a greater sight distance to the east is addressed in condition 30A. The trimming of a bush on the adjoining property would require approval from the adjoining property owner however as explained by Mr Sannikov on-site, the amount of trimming required is minimal. Even without the trimming of the tree, a view of vehicles approaching from this general direction is available although not to the same extent as is available with the trimming of the tree. The existing nature of the driveway and the minimal additional traffic generated by the proposed development, in my view, requires some flexibility in the adoption of the sight distances standards in Australian Standard AS 2890.1-2004. I note that there was no evidence of any accident history with the vehicles leaving the driveway.

Loss of access during construction

31 This was a matter raised by residents of 29, 31 and 33 Belinda Crescent who use the driveway for access to the parking facilities at the rear of their properties. The issues related to the inconvenience of not having vehicular access to their garage facilities. While pedestrian access is still available from a Belinda Crescent, this access is not regularly used because of the grade and distance of the dwellings from Belinda Crescent.

32 The applicant provided a Construction Program for the driveway from James Development Services Pty Limited that provides for a 18.2 week construction phase (excluding contingencies or inclement weather). Access will be restricted to the properties for 15.4 weeks.

33 Ms Laidlaw describes the loss of access as significant but not to the extent that it would warrant the refusal of the application. While accepting that the works are triggered by the proposed subdivision, she states that the works address the design and construction shortcomings of the existing driveway without cost to the residents. Although the temporary loss of access is an unfortunate consequence of the proposed development it would be illogical to refuse the development application for this reason.

34 I concur with the conclusions of Mr Laidlaw and agree that in balancing the obvious inconvenience against the long-term benefits, the limited inconvenience is not a reason that would support the refusal of the development application.

Lots 101 and 103 - suitable for the erection of a dwelling?

35 Clause 7(2) provides that the objectives for the zone are to be taken into account before development consent is given. The objectives state:

( a) to provide for the housing needs of the population of the Hornsby area.
(b) to promote a variety of housing types and other land uses compatible with a low density residential environment.
(c) to provide for development that is within the environmental capacity of a low density residential environment.

36 Clause 14(2) provides a minimum subdivision standard of 500 square metres and there was no dispute that the proposal satisfies this requirement. The Subdivision DCP reiterates this control and further requires additional area for sloping sites based on a sliding scale. There was also no dispute that the proposed development satisfies the additional area requirements in the Subdivision DCP for sloping sites.

37 In her assessment of this issue, Ms Laidlaw concludes that there are no reasons why Lot 103 is not capable of accommodating a dwelling house because it is a more regularly shaped lot and less impacted upon by the proximity and configuration of adjacent structures when compared to Lot 101. She states that the lot is consistent with the "environmental carrying capacity" of the land and the character of the residential area. I accept this conclusion.

38 Lot 101 was the subject of changes brought about by the amended plans. The changes were considered by Mr Laidlaw on site and provided for an increased building footprint of around 200 square metres to satisfy the Subdivision DCP requirement, additional landscaping along the driveway brought about by the deletion of the steps along the driveway and an increased setback of the building footprint to the driveway.

39 While the amendments addressed some matters raised by Ms Laidlaw, she still maintained some fundamental concerns. These relate to the topographical and landscape constraints of the lot and the separation between the existing dwelling on Lot 102 and the proposed building footprint. When combined this predetermines the siting of the building footprint towards the southern end of the lot. She describes this relationship as inconsistent with other battle axe arrangements in the area particularly when viewed from across the valley.

40 Ms Laidlaw's concerns also relate to the provision of private open space and the potential pressure to remove the trees on the northern part of the site and the shady environment they create to take advantage of the scenic northerly aspect.

41 While acknowledging that the building footprint could reasonably accommodate a three-bedroom dwelling Ms Laidlaw’s preference is for a specific dwelling design for this lot. In her experience it was also likely that a three-bedroom dwelling would be subject to future development application for alterations and additions.

42 In addressing those matters raised by Ms Laidlaw, the Subdivision DCP provides for a 200 square metre building envelope with a minimum dimension of 10 metres. The amended building envelope does not satisfy the minimum dimension requirement however the irregular shaped building envelope has been designed to avoid the loss of an existing tree (Tree T13). As the Subdivision DCP has a specific Performance Criteria of minimising "impacts on the natural environment", the non-compliance with the minimum 10 metre dimension can be supported in this instance.

43 The Subdivision DCP provides requirements form Private Open Space. The Prescriptive Measures provide form minimum areas based on the size of a dwelling. A minimum dimension of 5 metres is required. I understand that there was agreement that the proposal satisfied the numerical requirements with the proposed development providing private open space by way of decking fitted around the trees over the northern part of site. While the potential does exist for the trees to be removed over time, this largely speculative and not a matter that should be given any significant weight in the consideration of the development application.

44 In response to Ms Laidlaw's concerns over the future applications to extend any dwelling, I am also not convinced that this concern can be given any significant weight. Importantly, and in the event that this may occur any alterations and additions would be subject to a further development application and consideration by the council, including the advertising of the application.

45 I am also not convinced that the relationship between the existing dwelling on Lot 102 and the building envelope on Lot 101 is so unacceptable that it could be seen as a reason that to refuse the application. With an explanation on site of the relationship between the existing dwelling and the height of any proposed dwelling on Lot 101 (see condition 2) and the evidence of Mr Wallman that the setback can accommodate appropriate planting, I do not see any significant degree of inconsistency with the separation of other dwellings in the area. For example, the separation is generally consistent with the separation of the buildings at 29, 31 and 33 Belinda Crescent. Even though some battle axe allotments in the area have larger areas, the Density requirements in Subdivision DCP are met and exceeded by Lot 101.

46 The Court was referred to the decision of the Senior Commissioner in Parrot v Kiama Municipal Council [2004] NSWLEC 77 and the Planning Principles relating to subdivisions and whether it is necessary to provide constraints on buildings that are to the built at a later time. The Planning Principle states that constraints should be provided on future buildings where "the proposed allotments are smaller than usual, or environmentally sensitive or where significant impacts on neighbours is likely and needs careful design to minimise them".

47 In this case, some constraints have been placed on the proposed subdivision through the building envelopes and the maximum building heights. In my view this is sufficient, as the evidence did not suggest that the proposal fell within any of the categories of development set out in the Planning Principle in Parrot.

48 In my view, it follows that the impact on the character of the area is negligible at best. The allotment sizes comply with requirements in LEP 1994 and the Subdivision DCP. The appropriate building envelope has been identified and the evidence of Ms Laidlaw indicates that a dwelling can be adequately erected on the allotment, albeit limited to three-bedrooms. I accept that any design will need to carefully consider the particular topographical and environmental constraints together with the identified building envelope and height requirements however the task is not beyond a skilled architect or building designer.

49 Taking into account the objectives in cl 7(2) and particularly objective (c), I find that the proposal is acceptable.

Orders

50 For the preceding reasons, the Orders of the Court are:

1) The appeal is upheld.
2) Development Application No. 518/04 for the subdivision of three existing lots into five lots at 25, 37 and 39 Belinda Crescent, North Epping is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 11, 12, B and C.

_______________
Graham T Brown
Commissioner of the Court