Pamela M Parsons v Hornsby Shire Council

[2006] NSWLEC 352

Land and Environment Court

of New South Wales

CITATION:	Pamela M Parsons v Hornsby Shire Council [2006] NSWLEC 352
PARTIES:	APPLICANT: Ms Pamela M Parsons RESPONDENT: Hornsby Shire Council
FILE NUMBER(S):	11199 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Bushfire risk associated with the additional lot; and Inadequate documentation.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, (EPA Act), ss 79C and 97 Hornsby Shire Local Environmental Plan 1994, (HSLEP) Draft Hornsby Shire Local Environmental Plan 1994 (Amendment No 84), (draft Amendment 84) Sydney Regional Environmental Plan No 20 - Hawkesbury - Nepean Rivers, (SREP20) Dwelling House Development Control Plan, (DHDCP) Residential Subdivision Development Control Plan, (RDCP) Heritage Development Control Plan, (HDCP)
DATES OF HEARING:	09/06/2006
DATE OF JUDGMENT:	06/21/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Creighton, agent SOLICITORS: N/A RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike and Fenwick, Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

21 June 2006

11199 of 2005 - Ms Pamela M Parsons v Hornsby Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse an integrated development application to alter and add to an existing dwelling, erect a carport and to subdivide into two (2) allotments, land at Lot 1, DP 375445, being No 17A Lisgar Road, Hornsby.

2 I visited the land in company with the parties on the first day of the hearing when local residents gave evidence.

3 I have concluded that the application should fail as a result of lack of building envelope shown on the subdivision plan, ill-defined bushfire asset protection zone and inadequate documentation of the works.

The land

4 The land is situated on the eastern side of Lisgar Road, Hornsby. It is rectangular in plan and has a frontage to Lisgar Road of around 20.184m, a depth of 67.055m, [Note: Exhibit C plan] and an area of around 1,353.44m2. [The statement of basic facts notes the area as 1348m2.] The slope of the land to the southeast corner is around 12%.

5 The land is bushfire prone.

6 The nearby residential area comprises low-density detached single-storey dwelling houses standing on lots of between 700m2 and 800m2. The land is characterised by its natural and leafy appearance, and is near Lisgar Gardens and Florence Cotton Park at the southwestern side of Lisgar Road. Opposite at No 14 Lisgar Road there is a steeply sloping lot of 516.6m2 with a recently completed residence erected upon it. This appears to be the smallest lot in the area. The next smallest in Lisgar Road is No 24 with an area of 702.9m2.

7 The land is part of the draft Hornsby West Side Heritage Conservation Area (Mt. Errington Precinct) and lies immediately opposite part of the Hornsby West Side Heritage Conservation Area.

Relevant planning controls

Environmental Planning and Assessment Act 1979, (EPA Act)

8 Under s 91A(4) of the EPA Act, in respect of ‘local development’ that is integrated development:

(4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application.

9 Under the provisions of the HSLEP the land is zoned Residential A (Low Density) and the proposal, as a ‘dwelling house’ and ‘subdivision’, defined under cl 7 is permissible with consent.

10 Clause 7(2) of the HSLEP requires the objectives of the zone to be taken into account before development consent is given to the carrying out of development within the zone.

11 Under Part 4: ‘Special Controls’ of the HSLEP apply. Clause 14 of the HSLEP – ‘Density’ requires a minimum area per allotment of 500m2 excluding the driveway of a battle-axe block. For development within the Residential A, (Low Density) zone under Clause 15 of the HSLEP – ‘Floor Space Ratio’ a floor space ratio of 0.4:1 applies.

Draft Hornsby Shire Local Environmental Plan 1994 (Amendment No 84), (draft Amendment 84)

12 Under the draft Amendment 84 the land is proposed to be rezoned Residential AS (Low Density - Sensitive Lands). The draft Amendment 84 is with the Department of Planning awaiting gazettal.

13 Under the draft Amendment 84 the proposal is defined as ‘Dwelling House’ and ‘Subdivision’ and is permissible with development consent.

14 Clause 7(2) of Amendment 84 the objectives of the zone must to be taken into account before development consent is given to the carrying out of development within the zone.

15 Clause 14 of Amendment 84 - ‘Density’ requires a minimum area per allotment of 600m2 excluding the driveway. Clause 15 of Amendment 84 ‘Floor Space Ratio’ requires a floor space ratio of 0.4:1 for developments located within the Residential AS (Low Density-Sensitive Lands) zone. Both clauses are under Part 4: ‘Special Controls’ of the HSLEP.

Sydney Regional Environmental Plan No 20 - Hawkesbury - Nepean Rivers, (SREP20)

16 The land is within the catchment of the Hawkesbury - Nepean Rivers. Any development works associated with the construction of the proposed development have the potential to impact on the integrity of downstream watercourses. The proposal involves works that would require specific conditions to be imposed regarding erosion and sediment control measures.

Residential Subdivision Development Control Plan, (RSDCP)

17 The primary purpose of the RSDCP is to provide controls for residential subdivision within the Low Density Residential and Special Use Zones.

18 The allotment design objective of the RSDCP is:

To provide useable allotments, which provide pleasant streetscapes, maximise energy efficiency and mitigate environmental impacts.

19 The relevant performance allotment design criteria are:

Lots should maintain an appropriate shape to accommodate a dwelling and associated development.
Lots and buildings envelopes should be designed to maximise solar access to dwellings and future private open space.
Lot design should minimise impacts on the natural environment significant landscape features should be incorporated as an integral part of the subdivision.
Lots should be designed to promote the development of energy efficient housing.

20 The relevant prescriptive measures are under the heads of:

· Density: - The prescriptive measure of this control requires a minimum area of 500m2 excluding the carriage way for sites located in Residential A zones and 600m2 for sites located in Residential AS zones. Proposed lots containing existing dwellings should not result in that lot having a floor space ratio in excess of 0.4:1 and site coverage in excess of 40%.

· Allotment Layout: - The element objective of this control seeks to promote allotments of varying sizes, which provide pleasant streetscapes, maximise energy efficiency, satisfy user requirements and mitigate environmental impacts. Lots should be design to respect site constraints such as topography, drainage, soil, landscapes, flora, fauna and bushfire hazard.

· Allotment Design: - The prescriptive measure for this control requires that lots should be able to accommodate a building envelope of 200m2 with a minimum dimension of 10 metres.

· Setbacks: - The prescriptive measure for this element stipulates that:

Front Setbacks: A minimum setback of 6 metres to the proposed building envelope and existing dwellings, which are retained, should be maintained from the primary front boundary. Where the streetscape will not be adversely affected, a single storey encroachment to 4 metres may be permitted for a distance equal to 1/3 of the width of the property measured at the building line.
In many areas in the Shire, a setback of 7.6 metres (25 feet) or greater exist and it may be necessary to conform to this setback to maintain the streetscape character.
Side Setbacks: Side setbacks for dwelling houses should generally be a minimum of 1 metre. Zero boundary setbacks will be considered having regard to the above performance criteria and the Building Code of Australia.
Rear Setbacks: Rear setbacks for dwellings should be a minimum of 3 metres. However, the private open space for the dwelling should be located at the rear of the dwelling house. The minimum dimension for private open space is 5 metres.

· Fire Hazard: - The element objective for this control seeks to minimise the risk to life, property and the environment from bushfires. A Fire Management Plan should be prepared addressing ‘Planning for Bushfire Protection 2001’.

· Heritage: - The prescriptive measure of this control requires that subdivision proposals should be sympathetically design to ensure that the existing heritage value of the streetscape and character of an area is maintained.

Dwelling House Development Control Plan, (DHDCP)

21 The primary purpose of the DHDCP is to provide controls for the erection, alteration of, or additions to dwelling houses within the low density residential and special use zones. The relevant control elements to the proposal are:

· Scale: - The prescriptive measure for this element stipulates that the floor space ratio should not exceed 0.4:1 and 40% of the total site area for the site coverage.

· Design: - The element objective for this control stipulates that:

Building design that is consistent with and enhances the character and amenity of the local area, has regard for environmental characteristics and energy efficiency.

· Height: - The element objective for this control stipulates that:

Building height consistent with residential development in the local area and that maximises privacy, solar access and views.

· Privacy: - The element objective of this DCP requires the development:

Development ensures reasonable privacy in the home and private open space for existing and future residents.
The prescriptive measure for this element stipulates that dwelling houses should be designed to ensure maximum protection of privacy and where appropriate, include: Windows which are narrow, translucent and obscured or have windows sills a minimum of 1.5 metres above the upper storey floor level; Windows do not face directly onto the windows, balconies or yards of adjoining dwellings; Screening of opposing windows, balconies and yards. Where the proposed dwelling house is two (2) storeys, the living and entertaining areas should be located on the ground floor.

· Solar Access: - The element objective for this control requires:

Development that ensures reasonable solar access to living areas within dwellings and to open space around dwellings.

The prescriptive measure for this element states that:

a) Dwelling houses should be design to allow at least 4 hours of sunshine to the private open space required for adjacent and proposed dwellings between 9 am and 3 pm on the 22 June.

b) Where dwellings on adjacent properties do not currently receive solar access in accordance with the above requirements proposed buildings should not further compromise solar access.

· Open Space: - The element objective for this control requires:

Development that provides adequate useable private open space to support residential outdoor activities and uses.
The control's performance criteria that the location of the private open spaces should take into account the outlook, natural features of the site and neighbouring buildings or open spaces. Private recreational facilities should not adversely affect the amenity of adjacent properties.

· Landscaping: - The prescriptive measure for this element requires a minimum of 45% of the total site area for landscaping purposes.

· Vehicle Access and Parking: - The prescriptive measure for this element requires two (2) car parking spaces for dwelling houses with more than 100 m2 gross floor area.

· Acoustics: - The element objective of this DCP requires the development: “To provide a reasonable acoustic environment for residents.”

· Environment Protection: - The element objective of this DCP requires the development be compatible with the land capability. Development or land identified as being bush fire prone land should comply with the specifications and requirements of the ‘Planning for Bushfire Protection 2001’.

Heritage Development Control Plan, (HDCP)

22 The HDCP is to manage the heritage in Hornsby Shire and to provide guidance and outline specific controls for development relating to heritage items and heritage conservation areas.

23 Heritage Conservation Areas under the HDCP: The element objective for this control seeks to provide a planning strategy for development within heritage conservation areas and to ensure that development is consistent with the heritage character of the heritage conservation area.

The proposal and its history

24 Integrated development application No 2162/04 was lodged with the respondent council on 19 November 2004 to alter and add to the existing dwelling on the land and to erect a new carport on the land and to subdivide.

25 The proposed architectural works include:

· Extension of the existing front patio area with awning on Lot 1.

· Addition of a rear roofed deck over a single carport and single car space for Lot 1.

· New bedroom and study within the existing storage area on the lower ground floor level of the existing dwelling on Lot 1.

26 It is proposed to subdivide the land into two (2) rectangular allotments as shown in Exhibit C. The proposed Lot No 1 would measure 32.685m x about 16.184m and an area of 529m2 excluding the right of carriageway of around 4.0m in width and would enclose the existing dwelling house. Proposed new Lot No 2 would measure 34.370m x about 20.184m with an area of 621m2 excluding the turning area and driveway. Mr Young estimated that the area of Lot 2, including the turning area and driveway, would be around 702.9m2, [Note: Exhibit 5 p 18]. The area of Lot 2 by calculation is around 693.72m2. Vehicular access to the proposed Lot No 2 would be along a 4.0m right of carriageway located on the northeastern side of the land within Lot 1. Near Bedroom 2 in the existing dwelling the width of the driveway would reduce to around 3.8m.

27 Proposed Lot 2 would not have a frontage to any road, as the title of the proposed right of carriageway would remain on the title of Lot 1.

28 The proposal complies with the minimum allotment area of 500m2 under cl 14 of the HSLEP.

29 The proposal is described in architectural plans prepared by Tropman & Tropman Architects, Drawing No A304B; A305B; A306B; A307B, dated 28 May 2006 in Exhibit A. Other plans prepared by Phillip North were not tendered.

Notification

30 The application was advertised for a period of 21 days from 2 December 2005, and was notified to nearby owners and occupants and the council received representations from residents of five (5) properties.

31 Resident concerns related to:

· Loss of native trees.

· Loss of wildlife habitat.

· Loss of views from balcony of property at No 14 Lisgar Road.

· Loss of privacy from the rear deck overlooking No 19A Lisgar Road.

· Dwelling shown within the Asset Protection Zone, (APZ).

· Inadequate access for emergency vehicles.

· Loss of privacy from front deck at No 19 Lisgar Road.

· Inaccurate drawings.

· Adverse impact on the environment.

32 On 3 March 2005 the NSW Rural Fire Service advised that they were not prepared to grant a bushfire safety authority in respect of the original application. This would have meant that the application would have to be refused, however, the RFS has now informed the Court that if a 20m-asset protection zone, (APZ) and a 5,000-litre water tank were provided within Lot 2, the RFS would not raise objection to the amended proposal.

The council’s decision

33 On 31 March 2005 the application was refused under delegated authority. The reasons are reflected in the issues.

The hearing

34 The appeal was filed on 12 October 2005.

35 At the hearing the court heard evidence on-site on behalf of the respondent council from Mr Bruce Thompson, No 14 Lisgar Road, Hornsby; Mr Bob Smith, 19A Lisgar Road, Hornsby; and Mrs Charmian Fombelle, 19 Lisgar Road, Hornsby. Ms Rita Baker, Town Planner Hornsby Shire Council was also present.

36 On behalf of the applicant, Mr John Travers, Conacher Travers Pty Limited, gave bushfire expert evidence.

37 Mr C Young was the Court-appointed town planning expert and Mr B Eadie was the Court-appointed bush fire expert.

38 Mr N McCarry, Senior Town Planner, Hornsby Shire Council and team co-ordinator, prepared the statement of basic facts dated 16 November 2005.

The issues

39 On 30 May 2006 the council filed an amended statement of issues.

1. The proposed development fails to satisfy Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979, as the proposal does not comply with

Hornsby Shire Local Environmental Plan 1994, Council's Draft Hornsby Shire Local Environmental Plan 1994 (Amendment No 84), Residential subdivision Development Control Plan and Dwelling House Development Control Plan.

2. The proposed development fails to comply with Clause 14 ‘Density’ pursuant to the

Draft Hornsby Shire Local Environmental Plan, 1994 and Hornsby Shire's Residential Subdivision Development Control Plan.

3. The proposed development does not comply with the zone objective (c) of Clause 7 as contained within the

Hornsby Shire Local Environmental Plan 1994 for Residential A (Low Density) zone as the proposal is not within the environmental capacity of the zone due to bushfire risk.

4. The proposed development fails to satisfy Section 91A(4) of the

Environmental Planning and Assessment Act 1979. The NSW Rural Fire Service, as an approval body, is not satisfied with the proposed subdivision layout. The proposed subdivision does not comply with the relevant specifications and requirements of the Rural Fires Act 1997 and the Planning for Bushfire Protection 2001 guidelines. The court-appointed, which fire expert, Mr Barry Eadie, recommended an asset protection zone of 20 metres, setback to the rear boundary. The proposal does not comply with this recommendation.

5. The proposal does not comply with the ‘Fire Hazard’ element of the council's residential subdivision development control plan, in the proposed building envelope would not allow for unimpeded access and pathway equipment to the rear of those lot number two.
6. The proposed building envelope Lot No 2 does not comply with the recommended measure stated in the element ‘Allotment Design’ on Council's Residential Subdivision Development Control Plan, which requires building envelopes to have a minimum dimension of 10 metres. The proposed building envelope has dimensions of less than 10 metres. Furthermore, the proposed building envelope is non-compliance with these setback requirements, as stated in the ‘Allotment Design’ and ‘Setback Elements’ in Council's residential subdivision development control plan. It has not been demonstrated that the proposed private open space, on those lot number two will receive at least four hours of sunshine on Fortune 2006, as required by the a lot of design element of Council's Residential Subdivision Development Control Plan.
7. The proposed alterations and additions to the existing dwelling in Lot No 1 are unsatisfactory in respect to the ‘Scale’ element objective of the Dwelling House Development Control Plan. The proposal exceeds the maximum prescribed site coverage of 40% of the site area.
8. The proposed deck addition to the existing dwelling in Lot No 1 is unsatisfactory in respect to the ‘Setbacks’ element objective of the Dwelling House Development Control Plan.
9. The proposed deck addition to the existing dwelling in Lot No 1 is unsatisfactory in respect to the ‘Privacy’ element objective of the Dwelling House Development Control Plan, as the proposed location of the deck is inappropriate and will compromise the amenity of the neighbouring property No 19 Lisgar Road.

10. The proposed addition of the deck to the existing dwelling in Lot No 1 is unsatisfactory in respect to the ‘Solar Access’ element objective of the Dwelling House Development Control Plan, as the proposed roofed deck will further reduce sunlight to the open space and swimming pool of the neighbouring property No 19 Lisgar Road.
11. The proposed location of part of the private open space at the front of the dwelling is unsatisfactory in respect to the ‘Private Open Space’ element objective of the Dwelling House Development Control Plan, as insufficient screen planting has been provided for this purpose.
12. The proposal is not in the public interest, having regard to matters raised by objectors, which are as follows:

· Privacy and overshadowing impacts on numbers 19 and 19A Lisgar Road, as a result of the proposed deck.

· Privacy impacts on No 19 Lisgar Road, as a result of the proposed patio.

· Discrepancies between plans and what currently exists on the site, and inconsistencies within the appeal plans, making difficult to assess and, comment on the application before the court.

· The building envelope on proposed Lot No 2 will inhibit access of emergency vehicles.

· Proposed deck at the rear of the existing property may cause noise disruption.

· Concern that the proposal is inconsistent with the draft Hornsby West-Side Heritage Conservation Area (Mt. Errington precinct), heritage character of the area, in relation to lot size, bulk and scale and area of landscaped garden on the proposed Lot No 1.

· Visual impact of the proposed carport on No 19 Lisgar Road.

· Reduction in native tree cover and potential impact in bird and wildlife populations in the area.

· Excessive size of the proposed carport.

· The plans are insufficiently clear to be able to assess precisely which proposed works of subject of Class 1 appeal. In particular, is unclear if changes to the roof of the existing dwelling are the subject of Class 1 appeal, the size and configuration of the front deck/patio or what excavation is being proposed. Such issues need to be clarified by the applicant prior to the granting of consent.

40 The following emerged as the salient issues:

· The building envelope on proposed Lot 2.

· Inadequate documentation.

· Privacy.

· Solar access.

· Private open space on proposed Lot 1.

The evidence and findings

The building envelope on proposed Lot 2

41 The parties were agreed that a 20m APZ is now required in the rear eastern part of the land on Lot 2 to protect future development in times of bush fire. However, the plans before the Court, in Exhibit C, do not show the position of a building envelope on Lot 2. The plan in Exhibit C does shows a ‘proposed house envelope’ setback only 14.0m from the eastern boundary. However, this setback would be insufficient to provide for the APZ. If a 200m2-building envelope, were shown for Lot 2 its position and location would be severely limited on that lot.

42 Under the heading of allotment design the RSDCP specifies a building envelope of 200m2 with a minimum dimension of 10 metres. Also under the RSDCP, the side setbacks for dwelling houses should be a minimum of 1m, and rear setbacks for dwellings should be a minimum of 3m and the minimum dimension for private open space, (POS) is 5m. There should be sufficient separation between the existing dwelling on Lot 1 and any future dwelling on Lot 2 so as to maintain a reasonable amenity for each. There is no detail as to how these setbacks and the necessary separations would be achieved.

43 Mr Young, the Court-appointed town planning expert, concluded that the distance between the proposed 20m APZ and the common boundary between Lots 1 and 2 would be only 14.934m and with the requisite setbacks of 1m from the boundaries and a two car parking area with turning area provided, the building envelope with a 10m minimum dimension would be 165m2 and this would be insufficient to meet the requirements of the RSDCP.

44 It is necessary to show the building envelope on the plan, vehicular access and turning areas, other services, setbacks, to be located on proposed Lot 2. Once these design elements are shown on the plans it might be that the allotment design remains inadequate.

45 Mr Young was of the opinion that after taking into account the APZ of 20m the proposal would fail to provide the necessary area for Lot 2 and would fail [in area] by about 17.5%, [Note: Exhibit 5, pp 20 and 27].

46 Mr Young stated:

Enlarging the rear site at the expense of area of the front site would reduce the [Lot 2], when the side carriageway was excluded, to under 500 square metres which would fail both existing and proposed minimum lot sizes of the HSLEP.
The location of the existing dwelling also causes adverse constraints by the accessway width, location of private open space at the front of the site, use of an upper deck for rear private open space with subsequent visual impacts of privacy screens, bulk and scale and solar impacts.
A new dwelling on the proposed front site designed to meet council’s requirements of the DCP could overcome many of these constraints.

47 Mr Simpson submitted that the application should be refused for this deficiency.

48 I accept the evidence of Mr Young and I am persuaded by Mr Simpson’s submissions that the lack of a building envelope and the possibility that the proposed Lot 2 would be undersized is sufficient reason to refuse the application as a whole.

Inadequate documentation

49 Mr Young concurred in the council’s issue No 12 and stated that as a result of amendments to the plans and uncertainty as to the full extent of the application he is unable to properly assess the application. As submitted by Mr Simpson, the information supplied by the applicant is inadequate to permit the Court to favourably determine the matter.

50 It became clear that there were many deficiencies in the documentation of the proposal, and the applicant sought to address some of these deficiencies during the proceedings.

51 There was some uncertainty as to how the curved roof would relate to the main roof of the dwelling and Mrs Parsons suggested that a flat roof over the patio would be better than the proposed curved custom Orb corrugated iron roof shown on the drawings. There was a question over whether the main roof would be tiled or sheeted in custom Orb corrugated iron and I was told that it would be sheeted in custom Orb. This seems to be at odds with the context as nearby dwellings have roofs covered with Marseilles pattern terra cotta tiles. The existing tiled roof seems to be appropriate in this regard and there does not appear to be any reason to change it. There was a question as to whether the original main roof structure would be retained. The drawings show a different roof profile however, as there was no roof plan it was difficult to assess why the roof form should be changed. These and other discrepancies make complicated the assessment of the application.

52 Despite Mr Creighton’s late submissions seeking an adjournment to amend the plans I consider the applicant would be better served in lodging a new properly considered application.

Privacy

53 Privacy screens are proposed on the southern side of the front and rear balconies. These privacy screens would be 1.65m high and would extend the full length of the southern end of the trafficable surface of the patio and balcony and would ensure that people enjoying the outdoor recreation areas on Lot 1 would not be able to view to the south into the adjoining properties.

54 However, there might be some noise impacts as a result of people entertaining on the front patio and rear balcony; however, this noise might be expected with any neighbouring dwelling.

55 Some redesign and perhaps repositioning of the screens to be setback further from the common boundary with No 19 Lisgar Road would assist in reducing the adverse amenity impacts.

56 Mr Young suggested that the rear deck might be deleted from the plans when the application as a whole is revisited. This would enable a greater separation between the existing dwelling on Lot 1 and any proposed dwelling on Lot 2.

57 During the proceedings the extent of the front patio and the southern privacy screen to that patio was uncertain. On the site inspection, Mrs Parsons, the applicant, explained that she would have liked the front patio to extend towards the west, as far as a bush that was growing in the front garden near the front wall. The distance between the bush and the front wall was measured on site as 2.3m. The front patio was shown and noted on the architectural plans in Exhibit A as being 3.0m wide. However, that on the plans in Exhibit C, the width of the proposed front patio scales at 2.3m. Thus I have assessed the width of the front patio and its screen as being in the order of 2.3m.

58 This matter of the patio and terrace and screening requires further clarification.

Solar Access

59 The shadow diagrams attached to the report of Mr Young indicate that at 9.00am in midwinter, the swimming pool at the rear of No 19 Lisgar Road would be overshadowed by around 3m extra shade cast by the proposed balcony and screen at the rear of the existing dwelling at No 17 Lisgar Road. It was estimated that there would be some extra shade over the pool of No 19 Lisgar Road until around noon in midwinter.

60 Also, the proposed privacy screens at the front and rear of No 17 Lisgar Road would add to overshadowing of the property to the south at No 19 Lisgar Road at this and other times of the year.

61 I accept that this overshadowing could be reduced were the screens further removed from the common boundary with No 19 Lisgar Road.

Private open space on proposed Lot 1

62 Mr Young was critical of the use of the front setback area of No 17 Lisgar Road as private open space (POS) for the existing dwelling on proposed Lot 1. The plans in Exhibits A and C do not show any POS in the front yard or elsewhere, thus I am unable to assess the impacts of placing the POS in the front yard.

Other matters

Density

63 Although the proposed lots meet the numerical controls for allotment size under the RSDCP, Mr Young considered that allowing for the APZ, and the building envelope and ancillary requirements, the area of Lot 2 should be greater than proposed. This would be necessary in order to erect a dwelling on Lot 2 that would conform with a FSR of 0.4:1 and 40% maximum site coverage.

64 Mr Young was of the opinion that the retention of the existing dwelling on proposed Lot 1 “…creates a further constraint in regards to the amenity on the existing proposed and adjoining sites’, [Note: Exhibit 5 p 19].

65 Mr Young continued:

…while numerically this site appears capable of accommodating two dwellings, the restrictions imposed by the rear asset protection zone, and retention of the existing building [on Lot 1], the present application requires relaxation of a number of criteria which would be out of character with the surrounding area and be minimalist for amenity of the existing and those residents.
Increasing the size of the rear allotment to meet bush fire and building envelope size would increase the front allotment to below the minimum 600 sq metre exclusive of the accessway required under the draft LEP.

66 I accept this evidence that suggests that the proposal is tending towards an overdevelopment of the site in terms of density.

Bushfire risk

67 The Rural Fire Service, (RFS), and the parties were agreed that a 20m asset protection zone, (APZ) would be sufficient to protect any new dwelling on proposed Lot 2. I accept the evidence of Mr Travers, concurred in by Mr Eadie that a 20m APZ located abutting the eastern boundary of the land would be sufficient for a APZ. Planning for Bushfire sets out the fuel load for an APZ.

68 Mr Simpson submitted that if the applicant were to provide a 5,000-litre water tank for fire fighting purpose there would be no need to provide for emergency access past the existing dwelling. If approval were contemplated a condition requiring a water tank of the appropriate size would be included.

69 This APZ is not shown on any plan and provided it is clearly shown on the plans the bush fire issues appear to have been resolved.

Public interest.

70 Mr Young concluded that the proposal would be unlikely to meet the draft Amendment 84, Residential AS (Low Density - Sensitive Lands) allotment area of 600m2.

71 Despite tree cover being reduced by the proposal, Mr Young accepted the evidence of the ecological experts that there would not be a significant impact in this regard.

72 Despite the single carport being considered by Mr Young as not excessive, he stated, “…the use of the roof of the car port as an elevated deck and the 2.75m height could be considered excessive.” He suggested that the vehicle accommodation for Lot 1 might be moved to the northeast abutting the right of carriageway and roofed but not used as an upper deck. He considered this would reduce its privacy and visual impacts. This option should be considered in any redesign of the application.

73 For the above reasons, the appeal is dismissed.

Orders
74 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

2. Development application No 2162/04 lodged with the respondent council on 19 November 2004 to alter and add to the existing dwelling on the land and to erect a new carport and to subdivide into two (2) allotments land at Lot 1, DP 375445, being No 17A Lisgar Road, Hornsby, refused consent.

3. The exhibits except for Exhibits A, C, 1, 2, 3, 4 and 13 are returned.

S J Watts

Commissioner of the Court

sw