Ougra v The Hills Shire Council

[2012] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ougra & Ors v The Hills Shire Council [2012] NSWLEC 1178

Hearing dates:

24 May 2012

Decision date:

27 June 2012

Jurisdiction:

Class 1

Before:

Hussey C

Decision:

(1)The appeal is upheld.

(2)Development consent is granted to DA 1278/2011/HB for the demolition of existing structures and construction of an attached dual occupancy at 26 Moseley Street, Carlingford subject to the conditions in Annexure A.

(3)The exhibits may be returned except 1, 3, 4, 6, A and B.

Catchwords:

DEVELOPMENT APPLICATION - Attached dual occupancy, compatibility with the character of the area, amenity impacts on neighbours, public interest

Legislation Cited:

Environmental Planning and Assessment Act 1979
Baulkham Hills Local Environmental Plan 2005

Category:

Principal judgment

Parties:

Mr H S Ougra and Mrs G K Ougra (Applicants)

The Hills Shire Council (Respondent)

Representation:

Ms Lee - May Saw (Applicant)

Mr C Winn (Respondent)

File Number(s):

10113 of 2012

Judgment

Background

1. This appeal was lodged against Council's refusal of a development application for the demolition of an existing dwelling and construction of an attached dual occupancy at 26 Moseley Street Carlingford.

1. The proposed dual occupancy is two (2) storeys in height with each unit containing four (4) bedrooms. Vehicular access is proposed via a single driveway from Moseley Street, with a vehicle manoeuvring area within the front setback. A double garage is proposed for units, with the Unit 1 garage being a stacked arrangement.

1. It is proposed to retain the existing 1 m high retaining wall along the site frontage.

The site

1. The site is known as Lot 29 DP 251044, 26 Moseley Street Carlingford. It has a frontage to Moseley Street of 20.42 m and an area of 790 sq m. Upon the site is a two-storey brick dwelling house with a single storey garage. The site is landscaped with predominately exotic species.

1. The site is located on the northern side of Moseley Street and is one of three residential allotments having frontage and access to the northern side of Moseley Street, in the block bounded by Buckland and Vickery Avenues. The adjoining allotment to the west is a corner allotment with frontage to Vickery Avenue. The St Paul's Anglican Church and its grounds occupy the remainder of the block fronting Moseley Street. Building stock in the locality consists predominately of two storey brick dwelling houses on large residential allotments.

Planning controls

1. The following planning controls are relevant:

(i)   Baulkham Hills Local Environmental Plan 2005; under which the site is zoned Residential 2(b). Development for the purpose of an attached dual occupancy is permissible with development consent. The site is proposed to be zoned R2 Low Density Residential under the provisions of Draft The Hills Local Environmental Plan 2010. Development for the purpose of a Dual Occupancy is permissible with consent in the R2 Low Density Residential zone;

(ii)   Baulkham Hills Development Control Plan Volume 1 Part C, s 4 - Dual Occupancy (BHDCP Part C, s 4);

(iii)   Baulkham Hills Development Control Plan Volume 1 Part D, s 1 - Parking (BHDCP Part D, s 1);

(iv)   Baulkham Hills Development Control Plan Volume 1 Pard D, s 3 - Landscaping (BHDCP Part D, s 3).

The contentions

1. The council identified the following contentions:

• Whether the proposed dual occupancy would complement and/or integrate with the existing and future low density character of the area. The particulars refer to the development not being consistent with the low density residential character of the locality as it is a larger form of dual occupancy than envisaged by the relevant planning controls. The proposed built form is not in keeping with the open form and design of existing residential development in the area. The relevant controls for this contention concern:

(a) Objectives (a) and (b) of the Residential 2(b) zone within the Baulkham Hills Local Environmental Plan 2005.

(b)   Objectives (a) and (b) of BHDCP Part c s 4 which aims to encourage a high standard of aesthetically pleasing and functional developments that sympathetically relate to adjoining and nearby developments and ensure that development will not detrimentally affect the environment of any adjoining lands and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from the proposed development.

• Landscape area provision inadequate as required by the DCP, Part C, s 4.
• Suitability of the site for the development.
• Public interest considerations.

The evidence

1. The contentions were addressed by way of a joint planning report by:

• Mr C Young: Council's consulting town planner
• Mr K Nash: Applicant's consulting town planner

1. The applicant also relied upon a detailed Aboricultural Impact Statement by Mr D Draper.

1. A considerable number of written objections were lodged and these were supplemented by further oral objections expressed at the view. These objections generally concern

• Lack of consistency in the (amended) plans
• Unsatisfactory landscape area calculations and concern about the removal of mature vegetation
• Unsatisfactory parking and vehicular movements
• Impact on traffic and parking in the neighbourhood
• Privacy impacts

1. The appeal was conducted by way of a s 34AA conference, wherein the parties initially considered the joint planning report, together with the objections. This resulted in a number of further amendments, which were found acceptable to council. However there was no agreement by the parties due to the remaining residents' objections. Consequently, the only contention for determination by the Court concerns the public interest considerations arising from the objections.

1. Notwithstanding this single issue for determination, it is apparent that the objections substantially follow the issues initially raised by council. Accordingly the assessment by the planning experts on these matters is relevant, which I have considered on the following basis.

Low density character of location

1. The planners initially agreed on a number of matters as follows:

• That the development application is for an attached two (2) storey dual occupancy development which is permissible in the 2(b) zone, with consent, under the Baulkham Hills LEP 2005 and the R2 zone under the Draft Hills LEP 2010
• That the proposed development, as amended, compiles with the relevant floor space ratio control in the Baulkham Hills DCP
• That the existing two (2) storey detached dwelling on the subject site has a roof ridge height of RL 115.81 (two (2) storey element) and RL 113.53 (single storey element)
• That the proposed attached dual occupancy (DA5/F) will have a maximum roof ridge height for the two (2) storey element of RL 117.28 and RL 113.284 to 113.991 for the single storey element
• That the existing character of development in the immediate locality of the site is that of one and two storey dwellings on relatively large allotments
• That west of the subject site are the rear yards of single storey dwellings at 1 and 3 Buckland Avenue. The rear facades of the dwellings are set back 15 m and 11.5 m respectively from the common side boundary with the subject site
• That an attached dual occupancy development is clearly contemplated within the locality, subject to satisfying the requirements of the DCP
• That in terms of scale of development in the locality, the proposed development, as amended, satisfies the 0.5:1 floor space ratio control embodied in the Baulkham Hills DCP for both detached dwellings and attached dual occupancies
• There are no heritage issues relating to the development application and locality
• That there are no overshadowing issues for rear yards of 1 and 3 Buckland Avenue
• That there is no overlooking issue from the first floor bedroom windows.

1. From this, Mr Nash supported the application but Mr Young considered that the initial design could be modified by lowering the building particularly the car parking, and redesigning the façade treatment to more visually integrate into the area and respect and determine the impact upon the adjoining tree. He considered this would achieve a more acceptable outcome.

1. With regard to the landscaping, the planners agreed that the amended application provided for a landscaped area of 49.7%, which results in a marginal deficiency of 2.37 sq m.

1. Insofar as there was some disagreement about the various components of the landscaping area and the adequacy of the landscape are in terms of the Part 3, s 3, 2.14.5 landscaping requirements in the DCP, nevertheless this was subsequently clarified with Mr Young agreeing that the provision of landscape area was adequate in terms of the controls.

1. In this regard, I note Mr Nash's reference to the original council officer's assessment which stated:

The proposed variations relating to landscaping are considered satisfactory for the following reasons:

The proposed extent of landscaped area is 49.7%, resulting in a shortfall of only 0.3%. This is considered to be a minor variation in the context of the site.

The impervious area within the front setback will be appropriately screened from view. Two advanced "Weeping Lilli Pillies", (75 litre pot size) are proposed to be planted within the front setback, with additional lower level shrubs.

The landscaping strip non-compliance can be described as a "point encroachment" as the driveway is required to encroach in this area due to the location of garage. Despite the non-compliance the driveway is considered to be adequately screened from the adjoining properties.

The extent of landscaping within the front setback area is consistent with the current level lf landscaping. It is noted that the existing dwelling has a front setback of 7.2 metres and the setback of the proposed dual occupancy development is to be increased to ten (1) metres.

Accordingly, the proposed extent of landscaping is considered satisfactory.

1. Apart from this, a particular concern was raised concerning the impact on the existing tree in the rear yard, which is adjacent to the common boundary with 3 Buckland Avenue. Whilst it is proposed to retain this tree, Mr Young expressed concerns about possible adverse impacts on the tree root zone due to excavations for the new building.

Conclusions

1. As I noted initially, the parties agreed that the further amendments undertaken during the course of the appeal resulted in an acceptable outcome for conditional consent. However due to the matters raised by the objectors, there was no s34 Agreement although council made no final submissions against the proposal.

1. This outcome relies substantially on the further assessment by the planners of the amendments arising during the appeal comprising a reduction in the height of the roof ridge to RL116.90, redesign of the driveway and parking space to achieve a 1:20 gradient, amendments to the landscape plan to reflect additional planting and further information from an arborist as to impact on the root system and canopy of the tree on the adjoining property at 3 Buckland Avenue.

1. From this the planners agree that the proposal, as amended, satisfies the planning and environmental outcomes envisaged in the Baulkham Hills LEP and DCP and will not have any unreasonable adverse amenity impacts on the adjoining residential properties. Therefore the development application warrants approval in accordance with the amended Draft Conditions of Consent lodged with the Court.

1. In determining this matter overall, I have carefully considered the evidence, including the objections and undertaken a view.

1. With regard to the issue of whether the proposed dual occupancy will integrate into the existing neighbourhood, it is obvious from the evidence that this form of development is envisaged by the current controls. There are no restrictions that only allow single detached dwellings.

1. Notwithstanding that the proposal has some different characteristics to the predominant detached dwelling form, nevertheless the proposal demonstrates reasonable compliance with the numeric controls and I consider this is a positive aspect in the merits assessment.

1. However, I accept that any such proposal should not cause undue amenity impacts on the neighbouring properties. From my observations at the view, I am satisfied that the setbacks on the upper level of the new building, together with the placement of windows should not lead to any unreasonable loss of privacy.

1. In this regard I have taken into account the orientation of the new building and the aforementioned setback of neighbouring dwellings, which the planners consider satisfactory.

1. It is also apparent that the controls do allow for a large two storey dwelling to be erected on the site, which would inevitably change the existing neighbour amenity relationship. In this context, I rely on the planner's agreement that the proposed design reasonably satisfies the aesthetic considerations in the DCP.

1. With regard to the other contentions raised by the objectors, I am satisfied that the proposal demonstrates reasonable compliance with the DCP controls. Also, the conditions of consent provide reasonable security for the tree along the common building with 3 Buckland Avenue.

1. Insofar as much concern was expressed about access to the subject property and also the impact on the parking/traffic flow in Moseley Street, I firstly accept the planners' agreement that the revised driveway alignment/grading is now satisfactory in the context.

1. With regard to the traffic and parking concerns in Moseley Street, I note that this was not identified as an issue by council. Whilst the objectors are dissatisfied with the current on - street parking availability and intersection and queuing delays due to increased traffic flows in Moseley Street, there was no substantive evidence to support these concerns, that in effect, the environmental capacity of this street was unsatisfactory or unsafe.

1. Consequently I do not think that the incremental change of one additional dwelling will materially affect the existing environmental capacity of this road. Therefore I do not consider these objections would be given such weight to warrant refusal of the application.

1. Insofar as the objectors reference various traffic studies, presumably these types of studies were considered within the planning process, which has subsequently resulted in the subject type of dual occupancy development being allowed. Again there was no compelling evidence that the incremental changes from the approval of the subject development would materially change parking or level of service in Moseley Street.

1. In the ultimate, I am satisfied to rely on the agreement by the planners that the amended application is a permitted form of development and that it reasonably satisfies the relevant controls to merit conditional consent. Whilst the objections form part of the public interest considerations, other aspects of the public interest concern confidence in the planning assessment, which gives significant weight to the approval of complying developments, as in the subject case.

Court Orders

1. The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to DA 1278/2011/HB for the demolition of existing structures and construction of an attached dual occupancy at 26 Moseley Street, Carlingford subject to the conditions in Annexure A.

(3)   The exhibits may be returned except 1, 3, 4, 6, A and B.

R Hussey

Commissioner of the Court

Decision last updated: 29 June 2012