Moscaritolo v The Hills Shire Council

[2013] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moscaritolo and Anor v The Hills Shire Council [2013] NSWLEC 1014
Hearing dates:	16 January 2013
Decision date:	23 January 2013
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION: Affordable housing; whether the design of the development is compatible with the character of the locality
Legislation Cited:	Baulkham Hills Local Environmental Plan 2005; State Environmental Planning Policy (Affordable Rental Housing) 2009; The Hills Local Environmental Plan 2012; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979
Cases Cited:	Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302; Project Venture Developments v Pittwater Council [2005] NSWLEC 191; Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70; MacDonald v Mosman Municipal Council [1999] NSWLEC 215
Category:	Principal judgment
Parties:	Gino Moscaritolo Maria Moscaritolo (Applicants) The Hills Shire Council (Respondent)
Representation:	Mr M Fraser (Respondent) Mr G McKee (Applicant) Ms J Mort (Respondent)
File Number(s):	10771 of 2012

Judgment

1. The Moscaritolo family sought consent on 12 April 2011, under development application 1361/2011/HB, from the Hills Shire Council for the construction of an affordable housing development comprising four dwellings and Torrens Title subdivision at No. 157 Merindah Road, Baulkham Hills. At the time the council determined the application, the proposal had been amended so that it was for the construction of three townhouses. Units one and two were proposed to be two storeys in height and contain three bedrooms per unit. Unit three was proposed to be a detached single storey dwelling also containing three-bedrooms. Single garaging was proposed to be provided to all dwellings

1. On 7 February 2012 the Council refused consent, and the Moscaritolos are appealing that decision.

1. The plans filed before the court reverted to a four dwelling proposal and on two occasions, the applicant had been granted leave to rely on amended plans.

1. The contention remaining in the case is whether or not the design of the proposed development is compatible with it the character of the local area.

The site

1. The site is described as Lot 102 in Deposited Plan 242330 known as No. 157 Merindah Road, Baulkham Hills. It is located on the corner of Merindah and Peel Roads, is rectangular in shape with a frontage of 18.35m to Merindah Road and 33.3m to Peel Road. Site area is 929.5sqm and the land falls approximately 3.5m from west to east (towards Merindah Road).

1. The site currently contains a single storey dwelling orientated in a diagonal fashion and is adjoined by two single storey dwelling houses. The site is serviced by a bus stop, approximately 52 m walking distance from the site on Merindah Road. There are bus stops on both sides of the road in this location. Further bus services are available from Seven Hills Road, a distance of approximately 100m from the site in a south-westerly direction.

1. The locality is characterised by residential development, being predominantly single storey detached dwelling houses, approximately 20 to 30 years in age in the immediate vicinity of the site. Dwellings in this area contain generous front and sides setbacks with an open streetscape appearance and above average size lots. It is an area undergoing gradual transition with a number of first floor additions and large two storey houses evident and dual occupancy development having being built on corner allotments consistent with the council's planning controls. There are a number of two storey dwellings, particularly in Broula Avenue, which forms the boundary of the block in which the site is contained. During the view undertaken by the Court at the commencement of these proceedings, evidence of this redevelopment and the form that it is taking, was noted.

The planning controls.

1. At the time the application was lodged, the site is zoned Residential 2(b) under the provisions of the Baulkham Hills Local Environmental Plan 2005 (LEP2005). The proposed development is categorised as townhouses under the LEP and was prohibited development. The proposed development is facilitated by State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH).

1. The Hills Local Environmental Plan 2012 (LEP2012) was made on 5 October 2012 and contains savings provisions which provide for the determination of applications made prior to the making of that plan. Under the provisions of LEP 2012 the site and surrounding properties are in zone R2 Low Density Residential which prohibits multi-dwelling housing and residential flat buildings. According to the evidence provided to the Court, dual occupancy developments will continue to be permissible on corner allotments.

Background and the proposal

1. Moscaritolo was granted leave by the Court to rely on amended plans on 15 August 2012. The council renotified those plans to those persons who had made objections to the original application. Similar objections were received.

1. The matter was the subject of conciliation conferences in this Court and as the result of discussions during that phase, further amendments were made to the plans. Leave was granted to rely on those plans during the hearing and the parties agreed to the costs under the provisions of s97B of the Environmental Planning and Assessment Act 1979. Despite the changes made, no agreement was reached and the conference terminated. The parties agreed that the matter be determined on the basis of what had occurred at the conferences with submissions made in accordance with the provisions of s34(4)(b) of the Land and Environment Court Act 1979.

1. The proposal is for infill development as provided for under Part 1, Division 2 of SEPPARH. Clause 16A requires the consent authority to consider whether or not the design of the development is compatible with the character of the local area. There are no contentions that the development controls and development standards contained within Division 2 are not met.

1. The plans now before the Court propose the construction of two buildings, one oriented towards Merindah Road, and the other towards Peel Road. Subdivision of the land into four allotments is also proposed, as is the strata subdivision of proposed lots 1 and 2, to facilitate access to the lower ground floor garaging.

1. Proposed lots 1 and 2 and associated dwellings are located on the southern portion of the site and whilst the lots are oriented to Peel Road, the proposed building addresses Merindah Road. The building has been designed to follow the slope of the site with garaging for two vehicles at the low point and two storey dwellings above. Each dwelling contains 3 bedrooms.

1. Proposed lots 3 and 4 also front Peel Road and the associated dwellings are contained in a part one and part two storey structure, with one garage (allocated to dwelling 4) and one opening parking space (dwelling 3) provided, both accessed from Peel Road. The building appears as a single storey structure when viewed from the street. Dwelling three contains 2 bedrooms and dwelling four, 2 bedrooms and a study. It is these dwellings that are proposed to be the affordable dwellings within the development in accordance with the provisions of SEPPARH.

1. All dwellings have access to private courtyards that run along the eastern side of the site. The upper floors of the dwellings contain bedrooms to address the concerns of neighbours in relation to privacy. The walls are setback a minimum of 4.5m from the common boundary.

The evidence

1. The original conciliation conference commenced on site and evidence was heard from a number of objectors to the proposal. The issues raised by those persons is summarised as follows:

• overdevelopment of the site
• adverse amenity impacts to adjoining properties
• inadequate provision for car parking
• traffic impacts
• development is not consistent with the character of local area

1. The site view included observation of the local area and include it a walk around the block bounded by Merindah Road, Peel Road, Warumbui Avenue and Broula Avenue. A recently completed dual occupancy development at the corner of the Seven Hills Road and Merindah Road was also inspected. The parties agree that this is the local area against which the assessment of the design of the development is to be assessed.

1. The Council has undertaken an assessment of the traffic impacts of the proposed development and does not press any contentions in relation to traffic or car parking.

1. Mr Fraser, for the Council, submits that the design of the development is inconsistent with the character of the area. In particular, he says that the two building would be read as one development, whereas it is preferable to follow the form of dual occupancy developments within the area, whereby the second dwelling in the dual occupancy development takes a different form to the original development. The fact that the development contains four dwellings is also inconsistent with the character of the local area and the lack of separation between the two building is A-typical of the built form evident in that area.

1. He says the building will appear as two dwellings however discerning person will see it as three, and that the proposal, on close observation, is clearly four dwellings even though the current plans have gone a long way to disguise that fact. There are no examples of four dwellings on this size of allotment nor three so, for that reason, the proposal is out of character. The prominent, two storey element on the corner exacerbates the dominance of the development, and it also inconsistent with the setbacks in the local area. Also, the provision of car parking underneath the building was not seen anywhere else on the view and is the result of the applicant trying to get too many dwellings on the site.

1. Mr McKee, for the applicant, submits that the design of the development is compatible with the local area, that the variation in materials, articulation and number of storeys within each building, is consistent with development that has been taking place within the local area, that the built form proposed is consistent with the form of dual occupancy development that exists in the local area and the buildings present as two detached dwellings. He says development does not have to be the same to be compatible, and that the development as proposed, containing smaller dwellings within a building of the similar scale to that evident in the local area ensures that the aims and objectives of SEPPARH are meet. The number of dwellings does not change the appearance of the development as its scale is appropriate and in keeping with that of other dwellings in the area.

1. Mr Fraser submits that it is a matter for the Court to determine the weight that should be applied to LEP2012. Mr McKee accepts that the plan has been made, the development would now be prohibited and it is a matter for the Court to determine the weight it would apply to the new instrument.

Findings

1. In relation to the weight to be applied to LEP2012, I note the wording of the plan as made differs from that as exhibited. Clause 1.8A reads as follows:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

1. These provisions vary from the exhibited draft and from savings provisions contained in earlier environmental planning instruments and require the determination of a development application under the provisions of the former planning instrument, i.e. LEP2005. This finding is consistent with that of Dixon C in Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 and I adopt those findings.

1. The parties agree that under the provisions of LEP2005 as facilitated by SEPPARH, the development as proposed is permissible with consent. Accordingly, provided I find that the development merits consent and, in particular, its design is compatible with the character of the local area, consent can be granted.

1. No merit matters are raised by the council, the only matter that requires my determination is the compatibility provision of clause 16A of SEPPARH and the issues raised by objectors. Such determination does not require a finding of sameness and this could not be expected from a state-wide policy that allows for a form of development that is not exactly the same as that anticipated by local planning controls. Consideration of the word "compatible" was assessed by Roseth SC in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, where he states:

22 There are many dictionary definitions of compatible. The most apposite meaning in an urban design context is capable of existing together in harmony. Compatibility is thus different from sameness. It is generally accepted that buildings can exist together in harmony without having the same density, scale or appearance, though as the difference in these attributes increases, harmony is harder to achieve.

23 It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them.

24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked.

• Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites.
• Is the proposal's appearance in harmony with the buildings around it and the character of the street?

25 The physical impacts, such as noise, overlooking, overshadowing and constraining development potential, can be assessed with relative objectivity. In contrast, to decide whether or not a new building appears to be in harmony with its surroundings is a more subjective task. Analysing the existing context and then testing the proposal against it can, however, reduce the degree of subjectivity.

26 For a new development to be visually compatible with its context, it should contain, or at least respond to, the essential elements that make up the character of the surrounding urban environment. In some areas, planning instruments or urban design studies have already described the urban character. In others (the majority of cases), the character needs to be defined as part of a proposal's assessment. The most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In special areas, such as conservation areas, architectural style and materials are also contributors to character.

1. In this regard, I find that the development as designed would be compatible with the character of the local area. Its scale is similar to that of other dwellings in the area; it has been designed to have the appearance of a detached dual occupancy development. I do not consider the fact that the development contains four dwellings does not mean that its design is not compatible. I consider that the plans now before the Court have provided a design that addresses privacy issues, would be read as two dwellings when viewed from the street and is appropriate in its context. It is a form of development that can sit in harmony with the locality. It height is consistent with other dwellings in the local area and the materials proposed provide sufficient variation to be distinguished as separate developments, not that this would be a reason to refuse consent.

1. In relation to parking and traffic, the council's evidence is that these are not reasons to refuse consent and that the existing road network is capable of handling the traffic generated.

1. The parties provided agreed conditions apart from one matter. The council sought to impose a condition (condition 52(a)(iv)) that requires the registration of a restriction on the title of the land that limits the number of bedrooms to that shown on the plans as approved. Mr McKee says the condition is unnecessary and would fetter the discretion of a consent authority in the event that any subsequent development of the land is proposed. Mr Fraser submits that the condition would operate as a warning to future owners of land, that the intensity of the development is already at its limits and no further development would be allowed.

1. It is clear, from the decision of Pearlman J in Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70, that the Court has power to impose a condition provided it considers that it appropriate to do so.

1. There is also authority, as set out in the decision of Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215, which supports the proposition that it is unnecessary and inappropriate to impose a condition requiring a restrictive covenant in some circumstances.

1. In this case, I am satisfied that the other conditions of consent, particularly condition 1, that requires the development to be carried out in accordance with the approved plans, are sufficient to ensure that there will be no increase in bedrooms or change of use of any parts of the buildings. For that reason, it is not appropriate, in this case, to impose the condition requiring that restrictive covenant. All other conditions should remain.

1. The Orders of the Court are:

(1)   The applicant is granted leave to rely on the amended plans tendered to the Court on 16 January 2013 subject to payment of agreed costs within 28 days of this Order.

(2)   The appeal is upheld.

(3)   Development Application 1361/2011/HB for the construction of an affordable housing development comprising four dwellings and Torrens Title subdivision at No. 157 Merindah Road, Baulkham Hills is approved subject to the conditions contained in Annexure 'A'.

____________________

Sue Morris

Commissioner of the Court

Decision last updated: 24 January 2013