Navaroo Constructions Pty Ltd v Palerang Council

[2006] NSWLEC 413

Land and Environment Court

of New South Wales

CITATION:

Colosimo v Hornsby SC [2006] NSWLEC 413

PARTIES:

APPLICANT
Nicholas Colosimo

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10573 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- house, height, scale in terms of qualitative development controls, public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

25/10/2006

 
DATE OF JUDGMENT: 

10/26/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Creighton, Agent

RESPONDENT
Mr P. Jackson, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

26 October 2006

10573 of 2006 Colosimo v Hornsby S C

JUDGMENT

Background.

1 This appeal was lodged against councils refusal of a development application for the erection of a two-storey dwelling at 12 Bartil Close, Epping. For the appeal, a number of issues were initially identified and subsequent conferencing by the parties reduced the issues to the following:

• Height and scale,
• Setbacks,
• Building design,
• Easement for support -geotechnical,
• Public interest, privacy and amenity impacts, character of the area.

The site.

2 No 12 Bartil Close is described as Lot 6 in DP 262272. It is an irregular shaped lot with a site area of 753.3 sq m. and an average fall of 20% to the rear of the site. It is situated at the head of a cul-de-sac with a narrower frontage in the order of 16.5m and splayed at the rear boundary.

3 The neighbouring area generally consists of a blend of contemporary, one and two-storey dwelling-houses of varying ages and designs, surrounded by established gardens.

The proposal.

4 This proposal involves the erection of a 2-storey, brick dwelling, incorporating 4 bedrooms, ensuite, walk-in robe, bathroom, balcony and laundry on the designated ground floor level. There is a double garage, lounge room, study, bathroom, kitchen, dining room and room and balcony on the first-floor level.

Planning controls.

5 Hornsby Shire Local Environmental Plan 1994 (LEP). This site is zoned Residential A (Low Density) under this LEP and the proposal is permissible, pursuant to clause 7 with consent. Clause 15 of the LEP provides a development standard that the maximum floor space ratio (FSR) not exceed 0.4 : 1.

6 Development Control Plan - Dwelling House. The objectives of this DCP are;

• to provide minimum standards that do not stifle innovation in design of dwelling houses;
• to provide measures to protect the natural and built environment;
• to enhance the established character of residential areas;
• to ensure development relates to site conditions; and
• to encourage energy efficiency in the design of dwelling-houses.

7 The DCP is divided into the primary control elements, which comprise relevant objectives, performance criteria and the associated perscriptive measures.

8 It states that performance criteria are general statements about how to achieve the objectives and meeting performance criteria enables the development of innovative schemes that meet the particular characteristics of an individual site.

9 Perscriptive measures are requirements that Council consider are likely to meet the objectives and performance criteria of the particular control element. Compliance with the perscriptive measures does not guarantee approval of an application. The application must also achieve compliance with the element objectives and performance criteria.

10 Of relevance in this manner, the DCP contains controls for the building scale, setbacks, design, height and privacy.

11 Sydney Regional Environmental Plan No 20 –Hawkesbury Nepean River. No issues were raised in respect of this plan.

The evidence.

12 In response to the issues, the parties agreed to Mr B Newbold (consulting architect and town planner) being the Court appointed expert for planning and he prepared detailed assessments contained in Exhibit 6. Having assessed the proposal, Mr Newbold identified a number of elements he considered unsatisfactory in terms of the qualitative aspects of the DCP provisions, which resulted in his conclusion that this application does not merit consent.

13 In so far as the bulk and scale of dwelling raised concerns, Mr Newbold acknowledged that the amended proposal achieved compliance with the FSR development standard. However, he says that numeric compliance understates visual bulk of the proposed building, which is influenced substantially by design factors as follows:

"Form of the building and its architectural treatment fail to achieve the scale ‘in accordance with the lands environmental capacity and zone objectives’, where that capacity is logically indicated by the surrounding low-density area and its established character."

14 Mr Newbold's assessment of the outstanding issues is as follows:

Scale;
• Overall height of the proposed building, together with the upper storey set close to street level, would create a substantial scale disparity in relation to surrounding dwellings:
• The tall two storey western wall, set close to the common boundary with number 10 and incorporating minimal articulation, would have an unacceptable visual impact upon that neighbour's principal private open spaces;
• Rectilinear building forms that incorporate limited articulation would not disguise the structure's inherent scale and bulk:
• Such rectilinear forms are more-commonly associated with commercial or industrial architecture, and would be distinctly incompatible with the residential character of this garden suburb neighbourhood that accommodates well-articulated buildings that are capped by gently-pitched roofs with wide eaves;
• Accepted urban design principles emphasise the significance of roof forms in relation to compatibility (for example, AMCORD Practice Note Number 10: Streetscape and Neighbourhood Character);
• Dominance of the street facade by a double garage, together with a glazed feature, would accentuate scale disparities between the proposed building and its neighbours;
• The minimal front setback would not maintain sufficient space for landscaping that could screen the proposed building from its street frontage;
• Qualitative concerns would not be mitigated by FSR and building site cover that are numerically-compliant, and height of the street elevation that is below the maximum permissible.

Setbacks;
• The front setback, measured as a geometric average in relation to the curved street alignment, is marginally short of the required 6m:

  However, the proposed setback would be substantially less than surrounding buildings that typically have street setbacks of 8m to 10m;

• Side and rear setbacks, although numerically-compliant, would not adequately protect the level of amenity that is enjoyed by existing neighbours:

  Sloping topography, combined with elevation of the ground floor at the southern end, andthe height of parapet walls, would have substantial visual impacts upon neighbours to the south and west;

  Impacts upon those neighbouring properties would be accentuated by orientation and width of the living room balcony, most likely resulting in uncontrollable overlooking of their private open spaces and transfer of noise downslope.

  
  Design;
• The rectilinear form with a parapet roof and minimal articulation would be a stark and undesirable contrast with the established streetscape:

  That contrast would be accentuated by a monotonous street elevation that is dominated by a double garage, together with a central entry portico and feature panel that suggest a symmetrical design;

• Form of the building together with interior planning would not be sympathetic to the site's topography:
  Elevation of the lower bedroom floor above ground level is nearly double the specified maximum of 1m;

Elevation of that floor would unnecessarily accentuate both height and scale of the proposed building viewed from neighbouring properties, and in conjunction with the proposed setbacks, would have an excessive visual impact upon those properties;

• Interior arrangement of the proposed dwelling would not take advantage of winter sun, and would not exclude summer afternoon sun:
  The majority of frequently-occupied living areas face south where they would receive minimal winter sunlight via four narrow east-facing windows;
This open plan suite of rooms has picture windows facing a balcony, and would be exposed to uncontrolled sun during summer afternoons;
Only the proposed formal living room has a northerly aspect, but this room is not connected to the open plan suite of informal living areas that would be occupied most frequently;

The proposed clerestorey roof light terminates above the stairwell, and would not admit a significant amount of direct winter sunlight to the informal living areas.

Height;
• Elevation of the entry floor level almost to the road pavement level would significantly contrast the pattern of surrounding buildings:

  Almost all of the dwellings entered from Bartil Close are set substantially below street level;

  Impacts of upper storeys are disguised by the extent of street setbacks together with supplementary upper storey setbacks, together with effective screen plantings across front gardens;
  Facing neighbouring properties to the south and west, walls that are numerically-compliant in terms of height would nevertheless have significant visual impacts that would be accentuated by their topographic elevation relative to those neighbours;

The extent of shadow impacts in relation to number 10 is unknown:

No shadow diagrams have been provided with this application, and the applicant's bundle of documents did not include survey information that would have assisted shadow projections by this CAE.

Privacy;

• The proposed development includes two levels of wide balconies across the full southern elevation:

  The lower balcony opens from bedrooms, while the upper balcony serves an open plan suite of living rooms;

• Due to topographic elevation and orientation, the upper balcony level would allow extensive overlooking of neighbouring properties:
  In order to limit overlooking of the immediate western neighbour at number ten, the application provides a masonry screen wall at the western end of the balcony, but that wall would accentuate visual impacts of the proposed development from vantage points around the neighbour's pool and adjacent terrace areas;
Located next to living areas of the proposed dwelling, the elevated upper balcony level would inevitably transfer noise to low-lying neighbours, in particular those located to the south.

Conclusions.

15 Having considered the evidence, I note that the objectors concerns mainly relate to the height of the building, its visual impacts and its compatibility with the existing character of neighbourhood. Accordingly, I am satisfied that these objections have been adequately addressed by Mr Newbold.

16 Insofar as the applicant relies substantially on the proposed buildings compliance with the numeric controls i.e. it has a complying FSR in the order of 0.4:1 and it satisfies the maximum 9m height control, nevertheless, Mr Newbold maintained his position that the qualitative aspects of controls are not met.

17 In my assessment of the competing positions, I have given consideration to the details in the Statement of Environmental Effects (SEE) and find it makes no reference to the DCP qualitative controls.

18 In the absence of any compelling challenge to Mr Newbolds conclusions, I accept his opinions that;

• This building proposal is not sufficiently site responsive, because it is set noticeably forward of the other neighbouring buildings, particularly those on the low side of this cul-de-sac and the proposed design will appear quite prominent, when compared to the existing lower scaled, neighbouring houses that are screened in a landscape setting,
• The proposed design with a flat roof and parapet walls at or near the maximum 9m height results in significantly larger areas of masonry walling than occurs in all the neighbouring properties in this cul-de-sac, where conventional 2-storey eave height and pitched roof form are the norm. I accept the submissions that this prevailing form results in less visual and disamenity impacts, than the proposal.
• Reference to the elevations and confirmed by Mr Newbold, shows that there are reasonable opportunities to significantly lower the rear portion of the building considering the relatively high void areas at the rear, to minimise the visual impacts resulting from the 9m parapet walls. As these proposed walls lack articulation and have a high degree of "blandness " according to Mr Newbold, I do not consider this element reasonably satisfies the DCP-performance criteria that:
  • dwelling house height should complement the streetscape and character of the area,
  • dwelling house height should not compromise the privacy of adjacent properties,
  • dwelling house height, should the sympathetic to the topography of the site and minimise cut and fill,
  • As this proposed 2-storey dwelling has all its substantial living and entertaining areas on the upper level, it is not consistent with the following DCP Privacy Element:

Where the proposed dwelling house is two storeys, the living and entertaining areas should be located on the ground floor level.

Consequently this proposed arrangement will compromise the privacy and enjoyment of adjacent properties when compared to a complying development, in my opinion.
• The issue concerning the Easement for Support adjacent to the front boundary of property has not been sufficiently resolved in my opinion. I acknowledge that a preliminary geo- technical investigation was undertaken, but it is inconclusive because it was not undertaken relative to the subject building proposal. The Council memo from The Manager, Assets Branch says:

"The Assets Branch does not support the proposal to construct part on the dwelling in the easement for support. Encroachment into the easement for support would contravene the terms of the existing easement for support. Councils right, as beneficiary, to enter, to restore, replace or renew the batter for the purpose of protecting all infrastructures located in the public road would be compromised and therefore would not in the public interest."

19 I accept that there are possible solutions to this concern, however, I consider it reasonable that they be determined prior to the granting of development consent, so that the associated elements of building setback, streetscape impact, landscaping and driveway construction can be considered initially in terms of necessity to utilise the easement. Accordingly, I consider this a negative aspect of the current proposal.

20 In the ultimate, I rely on the assessment and conclusion of the Court appointed expert Mr Newbold, an experienced architect/planner that this application does not merit consent. Consequently I consider it should be refused because it doesn't adequately satisfy the objectives of the Dwelling House DCP in terms of enhancing the established character of residential areas and ensuring the development satisfactorily relates to the site conditions, notwithstanding its substantial numeric compliance.

Court Orders.

1. The appeal is dismissed.

2. Development consent for DA/2113/2005 for a 2-storey dwelling at 12 Bartil Close, Epping is refused.

3. The exhibits may be returned except 3, 4, 6, A.

___________________

R Hussey
Commissioner of the Court
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