Orth Constructions v Hornsby Shire Council
[2005] NSWLEC 251
•05/02/2005
Land and Environment Court
of New South Wales
CITATION: Orth Constructions v Hornsby Shire Council [2005] NSWLEC 251
PARTIES: APPLICANT
Orth ConstructionsRESPONDENT
Hornsby Shire CouncilFILE NUMBER(S): 11290 of 2004 and ; 10017 of 2005
CORAM: Hussey C
KEY ISSUES: Subdivision :- Section 96 modification - delete height restriction conditions - visual impact - character of the proposal - scenic quality - loss of view - public interest -privacy - height element
LEGISLATION CITED: Environmental Planning and Assessment Act
Brooklyn Development Control PlanCASES CITED: Moss v Kiama Municipal Council NSWLEC 165;
Parrott v Kiama Municipal Council NSWLEC 77 revised 16/3/2004;
Tenacity Consulting v Warringah Council NSWLEC 140DATES OF HEARING: 03/05/2005
DATE OF JUDGMENT:
05/02/2005LEGAL REPRESENTATIVES: APPLICANT
Dr S Berveling, SCRESPONDENT
Mr T Pickup, solicitor
SOLICITORS
Storey & Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
3 May 2005
11290 of 2004 &10017 of 2005 Orth Constructions v
Hornsby Shire CouncilJUDGMENT
1. These proceedings involve the following two appeals arising out of a 4 lot subdivision development of a property at 29 and 43 Brooklyn Road, Brooklyn. They particularly relate to a dwelling house application on the newly created Lot 4.
2. Firstly, Appeal No. 10017 of 2005 concerns council’s refusal of a s 96 modification to Condition 4 of the subdivision consent, for its deletion. The original Condition 4 stated:
- Maintain the existing low density character of the area and privacy, future dwellings proposed for Lots 1, 2 and 4 shall observe the height element of the Dwelling House Development Control Plan requiring single storey development on battle axe lots.
3. On review this was replaced with the following:
- To maintain the existing low density character of the area and to protect the privacy and views of adjacent properties, future dwellings proposed for Lots 1, 2 and 4 are to be of single storey.
4. Then appeal No. 11290 of 2004 is against council’s refusal of a development application for a two storey dwelling on this Lot 4.
5. The outstanding issues arise from the original approval of the subdivision to create 4 lots which are generally of battleaxe configuration, with access handles connecting to Brooklyn Road. These new lots comprise:
- Lot 1 641 sq m (excluding right-of-way)
Lot 3 590 sq m
- Lot 4 682 sq m (excluding right-of-way)
6. The subject property also fronts onto the Hawkesbury River and both Lots 3 and 4 have water frontages. The subdivision is now complete with access roads constructed and services provided. A replacement single level house has been constructed on Lot 3 and a previous house on Lot 4 demolished.
7. To assist in the resolution of the issues the parties agreed to Mr W Long being the Court appointed expert for planning. Accordingly he has undertaken a detailed assessment of the proposal resulting in his conclusion that the amended Condition 4 should be deleted. This consequently results in the merits of the development application being satisfactory for approval.
8. The parties agreed that the two appeals be heard concurrently and that the matter be determined by way of on-site hearing (OSH).
9. Insofar as the council agreed to the replacement of Condition 4, the applicant maintains that this condition is still unreasonable and should be deleted, so that any subsequent development application for a dwelling is considered on its merits, relative to the prevailing controls.
10. The issues concern:
- Whether Condition 4 should be deleted, and subsequently the:
- visual impact of the proposal;
- character of the proposal in terms of its compatibility with the scenic qualities of the area;
- loss of view
- public interest.
Planning controls
11. Hornsby LEP 1994
, under which the site is Residential AT (Low Density – Tourist Village) zone and the proposal is permissible with consent. Clause 15 of the LEP requires the development not to result in a building that exceeds an FSR of 0.4:1.
12. SEPP 20 – Hawkesbury/Nepean River, wherein the Riverine Scenic Quality considerations are relevant.
13. Brooklyn DCP, this contains complementary design elements and density elements and height controls.
Discussion of the evidence
14. The appeal has been dealt with on the basis of determining the s 96 application and then to consider if warranted, the merits of the development application.
15. From the evidence and Dr Berveling’s submissions presented, it is apparent that the background to the imposition of Condition 4 is relevant to enable assessment of the reasonableness of this Condition 4 in terms of the Newbury Tests. The original Condition 4 was apparently imposed on the basis that of the General Dwelling House DCP provisions, which seek to limit dwellings on battleaxe lots to single storey.
16. However, on review, it was accepted that this DCP does not directly apply in Brooklyn and accordingly replacement Condition 4 was imposed with the intent of ensuring that there was minimal impact on dwellings.
17. From the wording of the original Condition 4, the intent of the single storey requirement is to maintain the existing low density character of the area and privacy. However, reference to the DCP for Brooklyn contains a number of design guidelines which are presumably intended to shape the future low density character of the area.
18. The stated primary purpose of the Brooklyn DCP is “to provide updated and more detailed provisions for the control of development within Brooklyn and to implement the findings and recommendations embodied in the Brooklyn and Environs Management Plan 1990.”
19. The stated objectives are:
- To provide controls and standards for development
- To promote an implementation program
To provide a planning strategy.
20. These design guidelines include:
Density Element – which is to provide guidelines for bulk, scale and intensity of development in order to preserve the streetscape and low scale residential character of Brooklyn.
It is also provides for the development of low key tourist facilities compatible with the village character of the Brooklyn area.
21. The performance criteria are:
- The density of development being in keeping with the bulk, scale, intensity and environmental capacity of the area.
- It is to achieve this by prescriptive measures which provides for a minimum allotment size in the Residential AT zone of 500 sq m and also a site coverage not exceeding 40% of the site area and also a floor space ratio for all development not exceeding 0.4:1.
22. The next Design element is to promote housing that enhances the character and scenic quality of the area and ensures that new buildings do not detract from the natural landscape. This provides for the design of buildings to complement built and natural elements of the area and colours and materials.
23. The prescriptive measures state that the colours should be chosen that are harmonious with the surrounding natural environment, as indicated in Appendix C. However, the palette of colours that I was shown, they seem to be to allow wide latitude to achieve this natural harmony.
24. The third element deals with height and the objective there is “to control the height of buildings to be sympathetic with the environment and maintain the existing character”. The performance criteria is that dwelling height should not unreasonably restrict sunlight to adjacent properties. Dwelling height should conform with the predominant height in the streetscape and relate to the topography of the area. The prescriptive measures that apply in the Residential AT Zones, provides for building not to exceed a maximum of 2-storeys to retain the low scale character of the study area.
25. So that reference to these controls, which are presumably designed to establish the character of the area, allows some change and based on the building envelope with a maximum FSR of 0.4:1, maximum height allowance of two-storeys and situated on a minimum lot size of 500 sq m. The proposal comfortably meets all of these design requirements.
26. However, the submission of council is that the single-storey restriction should be maintained to provide compatibility with this neighbourhood and minimise disamenity, particularly view losses.
27. Mr Pickup refers to the matter of Moss v Kiama Municipal Council NSWLEC 165 where the relative use of 88B covenants was examined to prevent further developments by way of subdivisions. Insofar as that may have limited application to the present case, nevertheless his Honour Bignold J concluded in that case at cl 52.
- 52 This does not mean that there can be no new chapter in the planning history where proposed development would involve, or result in, a contravention of a condition of an existing development consent where that condition has continuing effect. Nor does it mean that the past absolutely fetters present and future opportunities to obtain development consent for new development. This is because of the faculty provided by s 96 of the Environmental Planning and Assessment Act to obtain the modification of an existing development consent and thereby to eliminate the prior condition that creates the legal impasse.
28. Accordingly, I am satisfied that the application of s 96 is appropriate in this case. As the stated planning purpose of the original Condition 4 was to maintain the low density character of the area and privacy, I am satisfied that the relevant criteria for this is presented in the Brooklyn DCP. As the proposal complied with this, I consider it unreasonable to impose an additional level of restriction on this particular subdivision.
29. Furthermore, I note Dr. Berveling refers to the planning principles Parrott v Kiama Municipal Council NSWLEC 77 revised 16/3/2004 wherein the Senior Commissioner said at pars 17:
- When should a subdivision application include information on the buildings to be built on the resulting allotments, it is practice in Australia to subdivide land without constraints on the buildings that can later be built. While this practice is appropriate in most cases, it is not always so. I have adopted the planning principle that a subdivision application should provide constraints on future buildings when 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.
30. On the basis of applying that criteria I am satisfied that the restriction on the design of the future house on the subdivided lot can be appropriately left to a later stage when the particular details of the house design is known.
31. Mr Long agreed that the imposition of Condition 4 is unreasonable and I concur that it is unreasonable where the intent of the condition can subsequently be considered, when a detailed dwelling application is made, as in this case.
32. Therefore I consider that Condition 4 should be deleted.
33. Turning then to the merits of the application, I have previously stated that it achieves numerical compliance. I also consider it presents a building envelope which is consistent with the with the Brooklyn DCP provisions.
34. However, I have also considered the particular objectors’ concern which go to inappropriate character, view loss and privacy. I note that Mr Long has addressed these in detail, by reference to the issues. With respect to SEPP 20, he says that the proposed development will not result in an adverse impact on the scenic quality of the riverine corridor in which the site is located.
35. From my observations of the view, I accept this opinion, together with his suggested conditions for the landscaping as reasonable and appropriate.
36. With respect to the character of the area, Mr Long said:
- That this part of Brooklyn has a diverse character and could be best described as a low density residential area consisting mostly single-storey and two-storey dwelling houses. When viewed from the river the treed canopy of the steep slopes is the predominant feature with dwelling house at varying sizes, age and style dotted throughout the slope. The density of the vegetation and steepness of the topography is generally less in the developed areas closer to the foreshore.
- The foreshore areas are characterised by the water facilities including the commercial marinas including fixed berthing facilities and a variety of marine based structures including jetties, pontoons and boatsheds. The mangrove areas are also a natural feature of the western part of the area.
The size and scale of the proposal is acceptable as evidenced by its compliance with the relevant controls of the Brooklyn DCP, including site coverage, FSR, height and landscaped area and compliance with the Foreshore Building Line standard of cl 20(2) of the HELP.
The proposal represents a contemporary design by virtue of its curved metal roof. The colours and finishes including the dark grey roof will assist the building to blend with the surroundings and complement the diverse character of the dwelling houses and marine based structures in this part of Brooklyn.
The proposed house contains two storeys with the second storey bedroom level contained partly within the curved barrel roof. The overall height is about 7 m to the top of the curved roof and in my opinion the proposal will be compatible with the diverse built form character of the area and the size and two storey height will be consistent with the low scale residential character of the area that includes dwelling houses of one and two storeys.The existing vegetation on the northeast corner of the site also assists in screening of the building and maintains a natural buffer between the site and the adjoining Brooklyn Marina. The proposed landscaping including Sydney Red gum trees will also enhance the landscape character of the site particularly on the foreshore part of the land.
37. As there was no compelling evidence to challenge this opinion, I rely on it to conclude that the proposal is consistent with the allowable character for Brooklyn. Whilst the building style varies from the traditional older style buildings, nevertheless it is consistent with the more recently approved, completed house on the adjoining Lot 3. On this basis then I do not think that the building being of different style is reason to refuse of the application.
38. With reference then to view losses, this was comprehensively assessed by Mr Long and also checked at the site inspection. Mr Long applied the planning principles on view impacts stated in Tenacity Consulting v Warringah Council NSWLEC 140. While he finds that there will be some view loss, he initially suggested this could be ameliorated to some extent by alteration of the curved roof. This has been done and it achieves a marginal improvement.
39. However, it is apparent in any case that when a new house is erected on Lot 2, even single storey house, it will remove most of the water level views from the rear properties Nos. 43 and 39A. But the critical aspect in my assessment, is that the proposed two storey dwelling does not in any case significantly impact on the water view for Nos. 43 and 39A. Because of the respective levels from various viewing points in these properties a single storey house would similarly block out the limited water views. The only view loss due to the 2-storey form is a strip of the vegetation backdrop on Long Island. But there are expansive views of this vegetation backdrop maintained.
40. Accordingly I agree with Mr Long that the view loss occasioned by the subject proposed 2-storey element is minor in this case and not sufficient to warrant rejection of the proposal.
41. In response to the objection from the Marina owners, which adjoins the property, I still consider that the two storey element maintains opportunities for substantial river views and does not detract from them. With reference to the amenity impacts from the marina and its nearby slipway, I do not consider that the incremental change from a two storey dwelling to a one storey house will have any discernible affect. This is considering that the planning controls allow dwelling houses adjacent to the marina and also there is a substantial vegetation screening that has been maintained on the northeast corner of the property.
42. Insofar as some objections were raised about privacy impacts I am also satisfied that the separation distance and design of the proposal is sufficient to allow reasonable privacy levels, consistent with this residential/tourist zone.
43. In summary, I am satisfied that this two storey dwelling demonstrates reasonable compliance with the design element controls in the Brooklyn DCP, which I consider is the relevant planning instrument to merit conditional consent.
44. The Court Orders then are:
- With respect of appeal 10017 of 2005
1. The appeal is upheld.
- 2. Condition 4 from development consent DA 2205/03 restricting the height of new dwellings to single storey is deleted.
1. The appeal is upheld.
- 2. Development consent is granted to DA 1212/04 for the erection of a two storey dwelling on Lot 4 DP the subdivision of Nos. 39 and 43 Brooklyn Road, Brooklyn, subject to the conditions in Annexure A is approved.
- ____________________
Commissioner of the Court
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