Pereira v The Hills Shire Council

[2012] NSWLEC 1113

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pereira v The Hills Shire Council [2012] NSWLEC 1113
Hearing dates:	8 May 2012
Decision date:	10 May 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Development application; In-fill affordable housing; whether the development is compatible with the character of the local area.
Legislation Cited:	Baulkham Hills Local Environmental Plan 2005. Land and Environment Court Act 1979; State Environmental Planning Policy (Affordable Rental Housing) 2009;
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Draft Baulkham Hills Local Environmental Plan 2010; Seniors Living Policy: Urban Design Guidelines for Infill Development.
Category:	Principal judgment
Parties:	Joseph Pereira (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel Ms Lee-May Saw (Applicant) Solicitors Mr C Winn The Hills Shire Council (Respondent)
File Number(s):	10099 of 2012

Judgment

1. This is an appeal against the refusal by the Hills Shire Council of Development Application 1386/2011/HB that proposed the demolition of an existing single storey dwelling and construction of 4 x three bedroom townhouses at 23 Arthur Street, Baulkham Hills. The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). The matter commenced as a conciliation conference under the provisions of Section 34 of the Land and Environment Court Act 1979 (the LEC Act) however, the Council officers were not delegated to enter into any agreement. The conciliation conference was terminated and the parties agreed that I dispose of the appeal in accordance with the provisions of section 34 (4) (b) (ii) of the LEC Act on the basis of what had occurred at the conciliation conference.

1. The contentions in the matter are whether the application is compatible with the character of the local area and is in the public interest. The Council did not press a contention regarding fragmentation of development.

Background and the proposal

1. The application proposes the demolition of an existing dwelling and the construction of four townhouses over a basement car park that accommodates four cars and associated storage in individual garages. Stairway access is provided from the garage to each dwelling unit above. Those dwellings are primarily oriented to Yattenden Crescent. The easternmost dwelling, being the corner of the building, also addresses Arthur St. Each townhouse comprises three levels and unit 1 is designed as an adaptable unit. That unit contains kitchen, dining, living, bathroom and laundry facilities and one bedroom on the ground floor, a further bedroom and study on the first floor, with a third bedroom as an attic room within the roof space. Dwellings 2-4 all contain similar facilities. These units comprise the main living areas at ground level, two-bedrooms and bathroom on the first floor and a third bedroom within the attic space. All units have access to private courtyards at ground level. A two-way driveway adjacent to the eastern side boundary off Yattenden Crescent provides driveway access to the basement.

1. Council considered reports of its officers on two occasions, both reports recommending the application be approved. However, despite this recommendation, the Council resolution was to refuse consent on 5 grounds. The reasons for refusal form the basis of the Statement of Facts and Contentions in the appeal.

The site and its context

1. The site is described as lot 59 in DP 23735, known as 23 Arthur St, Baulkham Hills and is located on the north eastern corner at its intersection with Yattenden Crescent. It is rectangular in shape and has an area of 702 square metres. The site and land within its vicinity fall approximately 2 m north to south

1. Development immediately adjacent to the site comprises single and two storey dwelling houses built to follow the slope of the land. There are a number of multi unit housing developments in proximity to the site that have been recently constructed. The evidence provided to the Court suggests that the area is undergoing redevelopment in accordance with its higher density residential zoning.

The planning controls

1. The site is zoned Residential 2(a1) under Baulkham Hills Local Environmental Plan 2005 (the LEP). The development is characterised as townhouses and would be permissible within the zone in accordance with the definition of apartment buildings and buildings up to four storeys in height are permissible. Despite this fact, the development relies on the provisions of SEPPARH. There is no dispute that the application meets all of the relevant controls in that policy and of particular relevance is the floor space ratio of the development, which, at 0.61:1, is less than the 0.75:1 allowed.

1. The site is proposed to be zoned R4 - High Density Residential under the Council's draft local environmental plan, Draft Baulkham Hills Local Environmental Plan 2010 (the draft LEP). The development would also be permissible in the event that plan was made.

The evidence

1. Council relied on its Statement of Facts and Contentions in relation to the contention regarding character and says the development is not sympathetic to its surrounds and would impact upon surrounding properties and the locality as a whole. Despite not raising any contentions in relation to the design of the development it also says the building is not aesthetically pleasing and functional in form, nor does it sympathetically relate to adjoining and nearby development or complement and integrate with the intended character of the area and concludes that it would not be compatible with the character of that local area.

1. Mr Nash, for the applicant, submits that whilst the character of the built form in the vicinity of the subject site is predominantly single and two storey detached dwellings, there are similar villa and townhouse developments at the corner of Owen Avenue and Charles St, 22 to 24 Seven Hills Rd, 28 to 30 Yattenden Crescent and 23A Charles Street. Therefore, he said, in terms of scale and type of residential development within the locality, the proposed development is clearly contemplated and redevelopment is occurring to increase residential density in line with the provisions of the LEP and the council's development control plans. He also notes the subject site and surrounding area would be zoned R4 - High Density Residential under the provisions of the draft LEP, which will significantly increase the height, scale and density of future residential development in the locality. Development to a height of 16 m would be permissible under that draft plan.

1. Mr Nash also relies on the assessment report prepared by the council's town planner, which concluded that the proposal was a satisfactory transition between the current and future character of the locality, and says the development satisfies the character test in clause 16A of SEPPARH, the objectives of the LEP and the 2(a1) zone objectives and should be approved.

1. In relation to the public interest, the Council received three submissions, objecting to the proposal. The issues primarily relate to the character of the development, car parking concerns, solar access, a view that the development will not provide affordable housing and highlighting the existing problem within the streets caused by commuter car parking.

1. The council advises the solar access diagrams lodged with the application satisfactorily demonstrates the proposal does not adversely impact any of the adjoining properties and satisfies it relevant controls. It does not press any traffic or parking issues. The Court observed the high usage of on street parking occurring in the vicinity of the site and was told by the council this occurs throughout the week as a result of persons parking to catch the bus from Baulkham Hills to the City and Parramatta.

Conclusion and findings

1. The proposed development satisfies all of the relevant controls under SEPPARH and is a permissible form of development under the Council's planning controls. The siting of the proposed building improves setbacks to adjoining properties and the units are orientated towards the north to optimise solar access and provide appropriate amenity. Shadows cast by the building do not adversely affect the amenity of any of the adjoining properties.

1. Clause 16A of SEPPARH requires the Court to determine whether the proposed development is compatible with the character of the local area. The parties agreed that local area is the block bounded by Seven Hills Road, Arthur Street, and the commercial area at the corner of Windsor and Seven Hills Rd and Yattenden Crescent and is in an area undergoing transition from lower density, single dwelling houses to higher density, multi-unit housing. The site view included a number of those developments.

1. I have regard to the planning principle in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 and find that the proposal's physical impacts on the surrounding developments are acceptable and that its appearance would be in harmony with the buildings around it and with the character of the street, particularly when consideration is given to the redevelopment that is occurring and will occur in the future. For those reasons, I find the proposal is compatible with the character of the local area.

1. Based on in discussions held in conciliation conference, the evidence provided, including discussion on how the development is consistent with the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development as required under clause 15 of SEPPARH and my view of the area, I am satisfied that the development warrants approval. The concerns of those objectors that the development will not provide affordable housing are addressed in the agreed conditions of consent, (see conditions 4 and 50(a)(iv)). Those conditions are consistent with the requirements of clause 17 of SEPPARH.

1. The Orders of the court are.

(1)   The appeal is upheld.

(2)   Development application 1386/2011/HB for the demolition of an existing single storey dwelling and construction of 4 x three bedroom townhouses at 23 Arthur Street, Baulkham Hills is approved subject to the conditions included in Annexure 'A'.

Sue Morris

Commissioner of the Court

Decision last updated: 10 May 2012