Merhi v Hornsby Shire Council

[2000] NSWLEC 30

Land and Environment Court

of New South Wales

CITATION:	Merhi v Hornsby Shire Council [2000] NSWLEC 30
PARTIES:	APPLICANT Merhi RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10798 of 1998
CORAM:	Pearlman J
KEY ISSUES:	Development :- multi-unit residential - bulk and scale - overshadowing - privacy - access
LEGISLATION CITED:	Hornsby Local Environmental Plan 1994 High Density Multi-Unit Housing Development Control Plan 1998 Interim Hornsby Town Centre Development Control Plan
CASES CITED:
DATES OF HEARING:	15/11/99, 16/11/99, 17/11/99, 18/11/99
DATE OF JUDGMENT:	02/25/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr P R Clay (Barrister) SOLICITORS Whitehead Green & Cooper RESPONDENT Mr R K Graham (Solicitor) SOLICITORS Abbott Tout

JUDGMENT:

IN THE LAND AND

10798 of 1998

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 25 February 2000

SIMON MERHI

Applicant

v

HORNSBY SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. This is an appeal against the deemed refusal by Hornsby Shire Council of a development application to construct a multi-unit residential building at No 14 Pound Road, Hornsby.

2. The proposal is to erect a 12-storey building, consisting of 44 residential units (which will be strata subdivided) and three levels of associated carparking. A single storey factory currently on the site will be demolished. The proposed development is permissible with consent under the relevant planning instruments.

3. Although the council raised 18 issues in its amended statement of issues, in essence the issues in this appeal are four in number and are as follows:

(1) bulk and scale;

(2) overshadowing;

(3) privacy; and

(4) access.

4. I have concluded that the development application should be refused on the grounds that the proposed development is unacceptable in terms of bulk and scale and constitutes an over development of the site, and that it will cause an unacceptable impact in terms of overshadowing.

5. I record that I have had the benefit of a site inspection.

The site and its surrounds

6. No 14 Pound Road (“the site”), which is lot 10 in DP 599285 and comprises an area of 1195 square metres, is located at the cul-de-sac end of Pound Road. It is roughly rectangular in shape but has a frontage of only 7 m to Pound Road.

7. The site is surrounded by existing offices and existing and proposed residential flat buildings. Of particular significance in this case are the two sites immediately surrounding the site. First, there is a multi-unit residential development presently under construction known as 121-133 Pacific Highway. It is being constructed by Meriton Apartments Pty Ltd and I will refer to it as “the Meriton development”. It is situated on an L-shaped allotment, part of which fronts the Pacific Highway, and part of which abuts the main northern railway line. It comprises two separate blocks of units - Block A fronting Pacific Highway which is to the immediate east of the site, and Block B which is to the south of the site. Secondly, the site adjoins No 12 Pound Street, which is vacant land owned by the council. Part of this land is located to the immediate north of the site, and part of it is located to the immediate west of the site, between the site and the main northern railway line. I will refer to this land as “No 12”.

8. Beyond the Meriton development to the south of the site, a 5 storey residential flat building has been approved although construction has not commenced. On that same site there currently exists a two storey office building. Further to the south is a recently completed residential flat building known as Jubilee Towers. To the north and north east of the site, there are small retail developments. To the east, across Pacific Highway, there is a newly constructed residential flat building known as Horizon Towers and an existing service station.

The No 12 proposal

9. Although this appeal is based on a deemed refusal, the council did formally refuse to grant consent to the development application on 21 April 1999. At the same time as that refusal, the council resolved to invite the applicant to submit a new development application in respect of a development which would amalgamate the site and No 12. After negotiations between the council and the applicant, a joint development application in respect of the site and No 12 was lodged on 17 July 1999. However, negotiations broke down, and the applicant proceeded with the current appeal.

10. Evidence was furnished as to the nature of the proposed joint development for the purpose, no doubt, of making a case for the superiority of the joint development on planning and environmental grounds in contrast to the development the subject of this appeal. I consider, however, that the task of the Court is to assess the present development application on its merits, and its task is not to assess the joint development. But the joint development is significant in two respects. It involved the amalgamation of two sites, and that is a planning objective referred to in the planning instruments which are relevant to both the site and No 12. The experts who gave evidence in this case acknowledged the planning objective of site amalgamation, but none suggested that the objective could be fulfilled without agreement between owners. Clearly, the Court can no more force the applicant to amalgamate the site with No 12 than the council could.

11. Secondly, the council’s case is based to some extent on a claim that, if the proposed development is permitted to proceed, the effect will be to sterilise No 12 in the sense that the number of residential units which would be yielded by a development of No 12 alone would be significantly less than would be yielded by the joint development. However, the council did not furnish convincing evidence of this result, whilst the applicant’s evidence was that No 12 can yield a satisfactory development on its own, although lesser in yield than a joint development. Accordingly, the issue of potential sterilisation of No 12 is not determinative in this case, and I put it aside.

The relevant planning instruments generally

12. Under the Hornsby Local Environmental Plan 1994 (“the LEP”) the site is zoned Residential D (High Density) Zone. In that zone, “multi-unit housing” is permissible with consent. The term “multi-unit housing” is defined in the dictionary to the LEP to mean “2 or more dwellings, whether attached or not, but does not include a hotel or motel”.

13. The present zoning was adopted following an amendment to the LEP made on 3 July 1999. Prior to that amendment, the site was zoned Business G (Town Centre Support) Zone, pursuant to which development for the purpose of multi-unit housing was also permissible with consent.

14. There was a debate in this case as to what other planning controls generally apply to the site. The context for that debate arose out of the council’s approach to urban consolidation. As part of that approach, the council prepared a study called the Hornsby Shire Council Housing Strategy (“the housing strategy”), stage 2 of which is encapsulated in a report dated February 1997. Generally speaking, the study identified a planning regime for multi-unit housing, part of which is based on nine areas, called “precincts”, identified as suitable for that purpose. The Pound Road precinct is one of the nine precincts, and the site is located within it.

15. As part of the implementation of that planning regime, the council amended the LEP to rezone certain areas as Residential D (High Density) Zone, as I have already mentioned. It also adopted, with force from September 1998, a High Density Multi-Unit Housing Development Control Plan (“the High Density DCP”). In July 1999, the High Density DCP was amended by the addition, amongst other things, of material relating to the Pound Road precinct. Prior to that amendment, the principal planning controls relating to the site were derived from the Interim Hornsby Town Centre Development Control Plan (“the Town Centre DCP”).

16. The question which arose in these proceedings is whether the High Density DCP applies to the site only to the extent of that amendment, so that its remaining provisions have no application. If that were so, it would follow that the Town Centre DCP applies to the site, but, since it has never been formally adopted, its controls would apply only as guidelines.

17. I have concluded that the High Density DCP applies in its entirety. That follows, in my opinion, from its preamble on p 1, which states that it applies to “… Multi Unit Housing development on lands zoned Residential D under …” the LEP. Such a conclusion is also consistent with the stated purpose of the High Density DCP as being “… to assist Council and proponents in the control of high rise residential development”.

18. That is not to say that the Town Centre DCP should be ignored. Its relevance, and weight, is, however, limited. It assists in an understanding of the process by which the planning regime came to be implemented, but the actual controls which govern development upon the site are to be found in the High Density DCP.

Bulk and scale

19. The first issue which arises is whether, by reason of its bulk and scale, the proposed development is an overdevelopment of the site. That is, at least in part, a product of the application of floor space ratio (“FSR”) and site coverage controls.

20. As to FSR, the starting point is cl 15 of the LEP, its objective being “[t]o control the intensity and scale of development of land so that development will be in accordance with the land’s environmental capacity and zone objectives” .

21. Clause15(1) provides a maximum FSR of 1.6:1 for land zoned Residential D. However, cl 15(2) provides for a variation of that maximum in the following terms:

Regardless of subclause (1), the Council may consent to development which results in a floorspace ratio greater than that indicated in the table if the proposed floorspace ratio satisfies the provisions of Schedule B.

22. Schedule B contains a number of diagrams. One of them is designated as diagram 11, and it shows an area edged heavy black. Included within that area is the Pound Road precinct. In relation to diagram 11, sch B contains the following relevant provisions:

(1) The floorspace ratio in respect of the land shown edged heavy black on Diagram 11 may exceed 2:1 where the gross floor area that results in a floorspace ratio in excess of 2:1 is used or proposed to be used exclusively for the purpose of multi-unit housing.

(2) The floorspace ratio in respect of the land shown edged heavy black on Diagram 11 may exceed 2:1, but must not exceed 4:1 where …

(a) the proposed development:
(i) will be carried out on a site area in excess of 1500 m 2 ….
(ii) ….
(b) the proposed development:
(i) makes provision for a public precinct comprising an open air space of at least 225 m2 … or
(ii) incorporates a community or recreation area in the facility … and
(c) the proposed development satisfies the following principles:
(i) the development will not cause significant overshadowing of public places, relative to the patterns or usage of those places;
(ii) the development will not cause significant overshadowing of nearby residential development;
(iii) …
(iv) …
(v) …
(vi) the development is unlikely to have the possible effect of sterilising the land or other land for future economic development.

23. At first glance, there seems to be some discrepancy between the figure of 1.6:1 set out in cl 15 of the LEP, and the figure of 2:1 set out in cl (1) and cl (2) to diagram 11. But that may be explained by having regard to the High Density DCP, where, by reference to “density” on p 13, a maximum FSR of 2:1 is prescribed.

24. In the light of these provisions, the following questions arise:

(1) what is the actual FSR of the proposed development?;

(2) are cl (1) and cl (2) of diagram 11 disjunctive or conjunctive? In other words, is cl (1) the only applicable control in respect of multi-unit housing, or does cl (2) also apply to such development?;

(3) how do cl (1) and cl (2) of diagram 11 apply to the proposed development?

25. As to the actual FSR of the proposed development, there were conflicting calculations. Mr Tony Moody, who gave expert town planning evidence for the council, calculated the FSR at 4.4:1 on the basis that the stairs and lobbies on each level should be included in the calculation. Mr P O Connor, who gave expert town planning evidence for the applicant, calculated the FSR at 4.0:1 on the basis that the stairs and lobbies should be excluded. The resolution of this controversy depends upon the proper interpretation of the definition of “gross floor area” in the dictionary to the LEP. That definition provides that “internal public arcades and thoroughfares, terraces and balconies with outer walls less that 1.4 metres high” shall be excluded from the calculation.

26. Mr Clay, appearing for the applicant, relied upon Mr Connor’s expert opinion that the stairs and lobbies are “internal public … thoroughfares” , but in the alternative submitted that the word “public” governed only the word “arcades” and that the stairs and lobbies should be excluded because they are “thoroughfares”. In response, Mr Graham, for the council, submitted that the word “public” governs both “arcade” and “thoroughfare”. In his submission, the stairs and lobbies are not “public”, because they are not open to the members of the public at large . In any event, he said, the ordinary meaning of the word “thoroughfares” used in the definition does not encompass stairs and lobbies, but instead it refers, on its dictionary meaning, to roads or paths.

27. The proper interpretation is not free from doubt, but I think Mr Graham is right. The use of a comma in the definition seems to me to indicate that it encompasses two different parts of a building, that is, “arcades and thoroughfares” on the one hand, and “terraces and balconies” on the other. That supports, I think, a conclusion that both the words “internal” and “public” govern both “arcades” and “thoroughfares” . It is reasonable to conclude that the stairs and lobbies of the proposed development will not be available to the public at large, but rather will be confined to the owners and occupants of individual units and their invitees.

28. Accordingly, I adopt the council’s calculation of an FSR of 4.4:1. That is, however, not the end of the matter. If cl (1) of diagram 11 alone applies, then there is no limit to an increase of an FSR beyond 2:1, so long as the gross floor area is to be used exclusively for the purpose of multi-unit housing, as is the case here. If, however, cl (2) of diagram 11 also applies, then the provisions of sch B cannot be satisfied by the development because cl (2) allows an increase only to a maximum of 4:1.

29. Mr Clay submitted on two grounds that cl (1) alone applies. First, he said, cl (2) is not expressed to be subject to cl (1), and the opening words of both sub-clauses suggests that the former, cl (1), applies subject only to a condition that the gross floor area is to used exclusively for multi-unit housing, whilst the latter, cl (2), applies to all other types of development. Secondly, he referred to an assessment of the development application prepared for the council by Mr J O’Grady of Pittendrigh Shinkfield and Bruce Pty Ltd (“the O’Grady report”). On p 3 of the O’Grady report, it was noted that no FSR limit was required in respect of this development. Mr Clay accordingly submitted that the council’s own consultant had adopted the interpretation for which the applicant contends.

30. I think the interpretation for which Mr Clay contended is correct. Clause 15(1) the LEP prescribes a maximum FSR in respect of the zones there specified, but cl 15(2) permits that maximum to be exceeded “… if the proposed floorspace ratio satisfies the provisions of Schedule B”. Accordingly, cl (1) and cl (2) to diagram 11 are directed to the circumstances in which the maximum may be exceeded. With this in mind, cl (1) and cl (2) may be seen to be directed to different circumstances, which explains why the opening words of each subclause is repeated. Thus cl (1) provides that the maximum FSR may be exceeded without limitation where the gross floor area is to be used exclusively for the purpose of multi-unit housing. Clause (2) provides that the maximum FSR may be exceeded up to a limit of 4:1 where certain criteria are satisfied, such as the site area of the development being in excess of 1500 square metres, the provision of a public precinct or community or recreation area, and the satisfaction of specified planning principles.

31. This interpretation is reinforced by sch B itself. In all but three of the diagrams contained in sch B, an increase of the FSR to a specified maximum only is permitted. Of these three, diagrams 12 is in a similar format to diagram 11 and raises the same problem of construction, so I put it aside. However, both diagram 10 and diagram 16 provide for an increase in FSR in terms identical to cl (1) of diagram 11, that is, the maximum may be exceeded where the gross floor area is to be used exclusively for multi-unit housing, but no limit on the maximum appears in those two diagrams. Hence, it is reasonable to conclude that the draftsperson intended that, in certain cases, there would be no limit to the FSR.

32. Furthermore, this interpretation conforms to the Housing Strategy, which, as I have previously explains, underpins the precinct concept and the rezoning to Residential D (High Density). On p 2 of the attachment to the Housing Strategy which deals with the Pound Road precinct, there is a reference to allowing the FSR of a development to exceed 2:1 “… where it is for multi-unit housing” and no further limitation is mentioned.

33. I have concluded, therefore, that cl (1) and cl (2) of diagram 11 are disjunctive, and that the FSR of 4.4:1 of the proposed development does not constitute a failure to comply with the FSR control. I have, however, reached this conclusion with some hesitancy because it seems contrary to the objectives of the FSR control. An unlimited FSR does not seem to me to accord with the stated objective of cl 15 of the LEP which is “[t]o control the intensity and scale of development of land so that development will be in accordance with the land’s environmental capacity and zone objectives”. It does not accord with the objective of the density provisions of the High Density DCP, which is “[t]o control the density of development in order to create a high rise residential environment”. There is an overwhelming ambiguity in this. In respect of the Residential D zone the LEP sets a maximum FSR of 1.6:1 and the High Density DCP sets a maximum of 2:1, yet, in respect of multi-unit housing (which, of course, is high density), there is no limit on the FSR of a proposed development.

34. Nevertheless, although for the reasons I have set out, the proposed development does not breach the FSR control, the opinion of the council’s experts is that the increase in the FSR of the proposed development to 4.4:1 should not be supported and should be a basis for refusal of development consent.

35. Thus, Mr Moody stated, on p 14 of his report, that “to permit the proposed development to extend up to 4.4:1 requires the proposal to demonstrate compliance with the various objectives and provisions of …” the LEP and the High Density DCP. In his opinion, the proposed development does not comply with those objectives and provisions. He considered that it would cause overshadowing and loss of privacy to adjoining properties, and the same impacts will be felt by the occupants of the proposed development itself. Those impacts demonstrate, in his opinion, that the proposed development is “excessive in scale” and is contrary to the objective of cl 15 of the LEP, as well as the aim set out in cl 2(1)(d) of the LEP, which is “to promote the well-being of the area’s population”.

36. A similar conclusion was reached by Mr David Chesterman, architect and town planner, who also gave expert evidence on behalf of the council. He proceeded upon the basis that the FSR of the proposed development is 4.0:1, and said, at p 3 of his report, that “… the proposed FSR of 4.0:1 on this small and peculiarly located site, with essentially no street frontage, is excessive”. At p 4 of his report, he noted that an FSR of 2:1 had been set “as a reasonable standard which will protect the amenity of residents in its high density areas”. He went on to say:

… an FSR of double the … [High Density DCP] … is … proposed and it is difficult to believe that the Council intended residential standards of amenity in the Pound Road Precinct to be substantially less than in its other nearby high density precincts.

37. Professor L P Kollar gave expert evidence for the applicant. In his supplementary report, he approached the issue on the basis that the FSR of the proposed development is 4.0:1. He considered that, since the Pound Road precinct is adjacent to the town centre, an “arbitrarily imposed 2:1 FSR can hardly apply” . That is because, in his opinion, differing relationships to the town centre cannot be ignored, so that, “from a broad point of view of urban design, maximum density is rightly proposed for the town centre, near maximum for the town centre support zones, decreasing gradually to high density and medium density residential zones”. In his view, therefore, the FSR of the proposed development is at an acceptable level, and fits in with other FSR ratios of development in the Pound Road precinct, in particular, the Meriton development, which has an FSR of 3.998:1.

38. On this issue, I prefer the evidence of Mr Moody and Mr Chesterman. The proposed development is to be located in a primarily residential area, where the amenity of occupants is a critical factor. An FSR which is double that which applies to other high density residential areas is unacceptable in that context, despite its location adjacent to the town centre. Furthermore, an FSR comparison with the Meriton development is inappropriate, because Block A of the Meriton development has a substantial frontage to the Pacific Highway.

39. In this connection, site coverage is a relevant factor. The High Density DCP, by reference to the density control, provides that the site coverage area should not exceed 35 per cent. Mr Moody noted that the site coverage of the proposed development is 41.6 per cent, and his evidence in this respect was unchallenged. Although it is not a determinative factor, the fact that the proposed development exceeds the maximum site coverage control by about 6 per cent is again indicative of overdevelopment.

40. For these reasons, I consider that the development application should be refused on the ground that the bulk and scale of the proposed development is unacceptable and constitutes an overdevelopment of the site.

Overshadowing

41. The High Density DCP provides a planning control relating to “solar access”. It relevantly provides as follows:

New buildings should not unreasonably restrict access to sunlight on adjoining properties, or public areas.

…

Development should be designed so that the northern facade of the dwellings will receive the maximum amount of sunshine in winter.

…

Public open spaces should receive a minimum of 50% sunshine on the ground plane between 10am and 2pm on the winter solstice.

…

Residential areas should receive a minimum of 2 hours of sunshine between 9.00am and 3.00pm on the winter solstice.

42. The Hornsby Town Centre DCP provides for a similar but not identical control.

43. Shadow diagrams furnished by the applicant were considered in the O’Grady report. It was concluded that the proposed development did not comply with the controls specified in the Hornsby Town Centre DCP. This conclusion was supported by Mr Chesterman.

44. Mr Chesterman prepared shadow diagrams for 21 June, illustrating both the effect of the Meriton development absent the proposed development, and the effect of both developments. He also prepared a model on which he simulated the shadow impact on 21 June.

45. The critical issue is overshadowing of the podium level of the Meriton development, and both Block A and Block B. According to the approved plans of the Meriton development, the podium level, which is situated between Block A and Block B to the south and east of the proposed development, is to contain pathways and landscaped areas, and is obviously to be a recreation area.

46. In summary, Mr Chesterman’s model showed that, on 21 June:

(1) The podium level will be either totally or substantially in shadow from 9 am until 3 pm;

(2) The whole of the eastern facade of Block B will be in shadow from 9 am to 3 pm;

(3) Part of the northern facade of Block B will be in shadow from 9 am to 12 noon;

(4) Part of the western facade of Block A will be in shadow from 3 pm onwards.

47. Professor Kollar gave evidence on this issue for the applicant. In cross-examination, he stated that he did not disagree with Mr Chesterman’s analysis and conclusions, but he said that the issue must be assessed as a matter of degree, and that overshadowing to some degree is inevitable in high density developments. His conclusion was that, so far as overshadowing is concerned, the proposed development would be “harmonious” in its relationship to surrounding areas, and that, accordingly, the proposed development would not unreasonably restrict sunlight for those areas.

48. It is true to say that any development on the site will have some overshadowing impact on properties to the south, east and west but the weight of evidence supports a view that the overshadowing impact in this case will be unacceptable. The podium level will be in shadow most of the day during the winter and there will be substantial impact upon Block B. I conclude that the proposed development does not comply with the solar access control provided in the relevant instruments, and that its non-compliance is significant. I consider that development consent should be refused on this ground.

Privacy

49. In relation to privacy, the High Density DCP provides that “[t]he design of developments should provide maximum privacy for dwellings and their curtilage … New buildings should not compromise the privacy and enjoyment of adjacent properties”.

50. The proposed development will be located about 15 metres from Block A and about 10 m from Block B. The evidence establishes the following relationships:

(1) The balconies on the south elevation of the proposed building will overlook the east facing units of Block B;

(2) The balconies on the north elevation of the proposed building will overlook at least part of the western elevation of Block A;

(3) The whole of the eastern elevation of the proposed development faces the western elevation of Block A, but only bedrooms and bathrooms are proposed for the eastern elevation of the proposed development.

51. The O’Grady report, Mr Chesterman and Mr Moody all raised concerns about a loss of privacy arising from these relationships, but Professor Kollar’s opinion, on p 8 of his report, was that, “in high density multi-storey developments it becomes a matter of degree to which the reduction of complete privacy is acceptable”. He concluded that the degree of reduction in this case is reasonable and acceptable.

52. There will be some loss of privacy which will impact upon the occupants of the proposed development and the occupants of Block A and Block B of the Meriton development. That raises a concern, but I accept Professor Kollar’s opinion that the degree of reduction of privacy is acceptable, and I consider that the loss of privacy does not warrant refusal of the development application in this case.

Access

53. Access to the proposed development is to be from Pound Road to which it has a frontage. However, the masterplan for the Pound Road precinct (set out in the High Density DCP) contains a notation stating “Opportunity to close Pound Rd and develop over”. The masterplan contemplates that access to development in the Pound Road precinct will be via a 12 metre accessway running from Government Road (which leads to Pacific Highway) in the north, thence parallel to the main northern railway line to Pretoria Parade in the south. The Jubilee development and Block B of the Meriton development acknowledge the accessway by providing a double laneway under each building. But the council’s adjoining land is located between the proposed development and the accessway, with the consequence that, if Pound Road is closed, the proposed development will be deprived of access unless it can acquire the benefit of a right of way over the council’s adjoining land.

54. In these circumstances, the council contends that the proposed development will compromise the proposal to close Pound Road and that development consent should be refused on that account. The applicant responds by saying that the proposal to close Pound Road is not finalised and is uncertain, and it does not warrant refusal of the development consent.

55. The evidence supports the applicant’s position. First, the masterplan refers only to an “opportunity” to close Pound Road rather than any final or absolute recommendation. Secondly, the council has not yet taken steps to close Pound Road in its entirety. It resolved on 7 April 1999 to seek a partial closure of the road, being an area between the existing kerbline and the properties adjacent to it on the western side. As outlined in its letter to the applicant’s consulting town planners on 13 October 1999, the council intends that the area so closed will be utilised as a landscape buffer zone. In the opinion of Mr John Coady, the applicant’s traffic engineer, this discloses an intention on the part of the council that the full closure of Pound Road is not proposed, although Mr Moody regards this partial closure as a step in the process of ultimate full closure. Thirdly, the attitude of relevant authorities to the proposed closure and 12 m accessway is not finally settled. As disclosed in a report to the council’s planning division meeting on 19 August 1998, the Fire Brigade has some concern with the adequacy of the 12 m accessway for firefighting equipment. Furthermore, although the Roads and Traffic Authority stated in its letter to the council of 11 November 1999 that it did not object to the proposed development, that was said to be subject to appropriate modelling of impact on the Pretoria Road and Pacific Highway intersection and engineering plans for improvements to that intersection being provided.

56. A further uncertainty is whether Pound Road could be adapted for improved landscaping and pedestrian access without its full closure. Mr Coady’s opinion was that the proposed development would generate only low traffic, and he concluded that, therefore, Pound Road could be converted to a “shareway” with improved access for pedestrians protected by bollards and other calming devices, and with improved landscaping. In giving oral evidence, Mr Connor agreed Pound Road could be partly closed and still cater for vehicular access to the site. However, in cross examination, Mr Moody expressed concerns about this sort of proposal, stating that it was likely to compromise both safety and utility.

57. In all these circumstances, I have concluded that refusal of development consent is not justified by the proposal to close Pound Road.

Orders

58. In accordance with the foregoing, development consent should be refused. I therefore make the following formal orders:

(1) The appeal is dismissed.

(2) Development application No 137/98 in respect of multi-unit housing at No 14 Pound Road, Hornsby, is determined by the refusal of consent.

(3) The exhibits may be returned.

59. I make no order as to costs.