Plaskitt v Hornsby Shire Council

[2022] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:

Plaskitt v Hornsby Shire Council [2022] NSWLEC 1181

Hearing dates:

30 March 2022

Date of orders:

21 April 2022

Decision date:

21 April 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is dismissed.
(2) Development Application No. 405/2020 for the demolition of existing structures and the subdivision of one lot into two lots, at 52A Day Road, Cheltenham, is refused.
(3) The exhibits, other than Exhibits 1, A, B and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – subdivision of one lot into two lots – demolition of existing structures – minimum lot width numerical control in Part 6 of the Hornsby Development Control Plan 2013 does not apply to a battle-axe lot – impact on the heritage significance of the Becroft-Cheltenham Heritage Conservation Area

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Hornsby Local Environmental Plan 2013, cll 2.6, 4.4, 5.10, 6.2, Pt 2 Sch 5

Land and Environment Court Act 1979, s 34

Texts Cited:

Hornsby Development Control Plan 2013
Online Macquarie Dictionary

Category:

Principal judgment

Parties:

Mark Plaskitt (Applicant)
Hornsby Shire Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Stewart, Cuddy & Mockler (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2021/243967

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 405/2020 for the demolition of existing structures and the subdivision of one lot into two lots (the proposal), at 52A Day Road, Cheltenham (the site), by Hornsby Shire Council (the Council).

2. The appeal was subject to conciliation on 10 December 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

The applicant was granted leave to amend the application

3. The applicant, by Notice of Motion, sought to amend the proposal to rely on additional information, including greater clarity on the amount of cut and fill required to reconfigure the driveway and construct the concept dwellings; plans of concept dwellings on each proposed lot and shadow diagrams. The Council as the relevant consent authority agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application No. 405/2020 to rely on the documents in Exhibit A. Leave was granted, and the amended proposal was admitted into evidence as Ex C. The applicant was directed to lodge the amended application on the NSW planning portal and to notify the Court when the amended application has been uploaded.

4. The solicitor for the applicant advised the Court on 14 April 2022 that the amended application had not been uploaded on the NSW planning portal, because the applicant was unable to access the NSW planning portal because the original application was not lodged on the NSW planning portal. Given my decision to dismiss the appeal, based on the proposed amended application, it was not necessary to upload the amended application on the NSW planning portal prior to the handing down of the judgment.

Issues

5. The Council contends that the proposal would have a detrimental impact on the environmental heritage of the Beecroft-Cheltenham Heritage Conservation Area. The “heritage” contention is particularised as follows:

“a) The proposal is unsatisfactory in respect to Section 4.15(a)(i) of the Environmental Planning and Assessment Act 1979 as the proposal does not satisfy objectives (a) and (b) of Clause 5.10 Heritage Conservation of the HLEP 2013, to conserve the environmental heritage of Hornsby and to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, respectively.

b) The proposal does not satisfy the desired outcomes (a) and (b) and prescriptive measures (a), (b) and (c) of Part 9.3.5 Subdivision of the HDCP 2013 as the proposal fails to retain the characteristic subdivision pattern of the surrounding Heritage Conservation Area and fails to demonstrate that the subdivision would adequately prevent intrusive development on the Site as a result of the uncharacteristic changes to the subdivision pattern.”

6. The Council contends that the application should be refused because it is not in the public interest, having regard to the concerns raised by resident objectors.

The site and its context

7. The site is a battle-axe allotment to the rear of 52 Day Road, with an access handle on the northern side of 52 Day Road. The site falls steeply towards the road.

8. 54A Day Road is to the north-east of the site and 44B Day Road is to the south-west of the site. 55 Cobran Road is to the rear of the site.

9. There are rock outcrops on the site. There is an existing carport and turning circle at the north-western end of the site and the site contains a single storey dwelling.

^{Figure 1: The site identified in red (from Ex 1).}

The proposal

10. The amended proposal is to demolish the existing structures on the site and subdivide the site into two allotments by dividing the site lengthways: Lot 1 is 787m² (608m² excluding the access handle) and 11.68m wide; and Lot 2 is 649m² (601m² excluding the access handle) and 11.71m wide. Both proposed lots would be accessed by a reconfigured driveway along the access handle.

11. The amended proposal includes concept plans for a dwelling on each proposed allotment. The application does not include the construction of the dwellings, as the future development of the resulting allotments would be the subject of future development applications.

Planning framework

12. The site is zoned R2 Low Density Residential pursuant to the Hornsby Local Environmental Plan 2013 (LEP 2013). The proposal is permissible with consent. The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

13. Development consent is required for subdivision (cl 2.6(1) of LEP 2013).

14. The minimum subdivision lot size for the site is 600m² (cl 4.1 and Lot Size Map Sheet LSZ_018 of LEP 2013).

15. There is no floor space ratio (FSR) development standard for the site (cl 4.4 and Floor Space Ratio Map FSR_018 of LEP 2013). The height of buildings development standard for the site is 8.5m (cl 4.3 and Height of Buildings Map HOB_018 of LEP 2013).

16. The site is within the Beecroft-Cheltenham Heritage Conservation Area (HCA) (Pt 2, Sch 5 and Heritage Map Sheet HER_018B of LEP 2013). Clause 5.10(4) of LEP 2013 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposal on the heritage significance of the HCA.

17. There are mandatory considerations for the grant of consent to development that involving earthworks, or ancillary earthworks, at cl 6.2(3) of LEP 2013.

18. The Hornsby Development Control Plan 2013 (DCP 2013) applies to the proposal, at section 1B.1. Part 3 provides controls for residential development. Part 6 provides specific controls for the subdivision of land. Part 9 provides controls for development that may impact on heritage conservation areas.

19. On battle-axe lots, there are 3 side boundaries and one rear boundary, for the purposes of the setback controls in section 3.1.2 of DCP 2013. The side setback is 0.9m for one storey, and 1.5m for a two storey element, at table 3.1.2(a) of DCP 2013. The setback of the dwelling and ancillary structures from the property boundary may need to be increased to maintain landscape features, at (g) of the prescriptive measures under section 3.1.2.

20. Section 6.2.1 of DCP 2013, Residential Lands Subdivision, includes the following “desired outcomes” for subdivisions in the R2 zone:

“a. Subdivision design should maintain appropriately shaped lots to accommodate a dwelling and associated development that is compatible with a low density residential environment.

b. Subdivision design should provide setbacks to developable areas that will:

• complement the streetscape,

• provide for landscaping,

• protect landscape features, and

• provide separation between existing and future dwellings.”

21. The prescriptive measures for section 6.2.1 include the following for “Lot Shape”:

“d. Lot design should maintain a minimum lot width that is compatible with the subdivision pattern, measured at the building line adjacent to the primary street frontage, as detailed in Table 6.2(b).”

22. Table 6.2(b) has a minimum lot width of 15m for allotments to which the minimum lot size is 600m².

23. Figures 6.2(b) and (c), associated with the prescriptive measures for “Lot Shape”, are:

24. The proposed subdivision plan should identify a potential developable area for each new lot, at Figure 6.2(c) of DCP 2013.

25. The provisions for heritage conservation areas are located under section 9.3 of DCP 2013, and the introductory text to the section relevantly includes:

“Development in Heritage Conservation Areas is required to respect the significant characteristics of the area. The controls place emphasis on how changes appear from public spaces, and ‘fit in’ in relation to the predominant built form, style and landscape character of the area.”

26. The relevant provisions for subdivision in Part 9 of DCP 2013, at section 9.3.5, are:

“Desired Outcomes

a. Subdivision that retains characteristic subdivision patterns, particularly where the subdivision pattern is closely related to characteristic built patterns in the heritage conservation area.

b. Subdivision that prevents intrusive developments as a result of uncharacteristic changes to the subdivision pattern.

Prescriptive Measures

a. Altering the subdivision pattern (either by amalgamating or subdividing lots) should be avoided, especially where the characteristic development pattern is based on lots of consistent size often supporting similar building types (refer to the Character Statement for details).

b. New lots should be capable of development that is compatible with the established character of the heritage conservation area, especially in terms of the orientation of buildings and setbacks…

Note:

The subdivision pattern often underpins the heritage significance of heritage conservation areas. Changes to the subdivision pattern can result in unsympathetic developments where the new lots are not compatible with the characteristic lot pattern of the area.”

27. The description of the HCA at section 9.3.6 of DCP 2013 is as follows:

“a. The topography has been a dominant influence on the area’s development, determining the location of the railway line, influencing the road layout and restricting development into the deep gullies.

b. Subdivision and infill development have been part of the pattern of development. The area retains its predominant character as an area of single dwellings.”

28. The site is within the Gullies Precinct of the HCA (Figure 9.3(e) of DCP 2013). The Gullies Precinct statement of significance is as follows:

“s. Development of the gullies and less accessible edges of the Field of Mars Common occurred from the 1960s. The eastern edge of the Common is still clearly discernible.

t. The land is typically sloping and includes bluffs and rock outcrops, with some original and regrowth forest communities…

Statement of Significance

a. The Beecroft-Cheltenham Heritage Conservation Area is significant as an example of a government subdivision that was used to fund the development of a railway line. The area developed from 1893 as a township due to its proximity to Beecroft Station.

b. The Heritage Conservation Area demonstrates a multi-layered history of suburban subdivision, re-subdivision and development from the initial boom period of the Victorian crown land subdivision of 1887 to the 1960s, and less noticeably into the present day.

c. The area contains a fine collection of buildings from the Victorian, Federation, Arts and Crafts, Inter-War and Post-War eras. There have been comparatively few demolitions to interrupt the “development diary”, resulting in generally intact early residential fabric and streetscapes.

d. The Beecroft Village Precinct contains an important public reserve and community buildings including the Beecroft School of Arts and the Beecroft War Memorial that represent the aspiration of a growing suburb. The continuing focus in the Beecroft village for day to day activities and community interaction, together with the community buildings, clubs and activities show an enduring sense of community cohesiveness.”

Public submissions

29. Three resident objectors gave evidence at the commencement of the hearing onsite. Their concerns can be summarised as:

• The width of the resulting lots is insufficient and does not comply with the planning controls.

• The proposal will have a detrimental impact on the heritage significance of the heritage conservation area because the future development of those lots will be inconsistent with the established character of the area.

• The proposal does not meet the requirements for bushfire protection and the asset protection zone will necessarily extend onto adjoining properties.

• The future dwelling on the southern lot will overshadow the existing adjoining dwelling at 44B Day Road.

30. The planning experts agreed, and I accept their agreement, that the shadow diagrams (Ex C) demonstrate that the concept dwelling on Lot 2 results in the retention of adequate solar access to 44B Day Road, noting that additional shadowing occurs in the winter morning to the smaller north-western wing of the dwelling at 44B Day Road, while the remainder of the dwelling and the rear private open space are not overshadowed by the building envelope of the concept dwelling (Ex 5, p 10).

Expert evidence

31. The applicant relied on the expert evidence of Nicole Lennon (planning) and Chery Kemp (heritage). The Council relied on the expert evidence of Benjamin Jones (planning) and Alison Bangs (heritage).

32. The planning experts prepared a joint report (Ex 5). The heritage experts prepared a joint report (Ex 4) and gave oral evidence.

The objectives of cl 5.10 of LEP 2013 are explanatory of the central purpose of the heritage conservation clause

33. I accept the applicant’s submission in relation to the applicant’s criticism of the first particular of the Council’s heritage contention. The objectives of cl 5.10 of LEP 2013 are explanatory of the central purpose of the heritage conservation clause, to conserve the heritage, in all its forms, of the Hornsby local government area. That objective is the goal which the provisions of the heritage conservation clause seek to achieve. The objectives are not ends in themselves to be satisfied by a proposal.

34. The effect of a proposal, to which cl 5.10 applies, on the heritage significance of an item or an area concerned, is to be considered by the consent authority before granting consent under cl 5.10, at sub-cl (4).

The numerical control for minimum lot width in section 6.2.1 Residential Lands Subdivision of DCP 2013 does not apply to battle-axe lots

35. The applicant submitted that the 15m numerical control for the minimum lot width shown in table 6.2(b) of DCP 2013 does not apply to battle-axe lots, because the prescriptive measure (d) requires that the minimum lot width is “measured at the building line adjacent to the primary street frontage”. On the basis that “adjacent” is interpreted according to the online Macquarie Dictionary meaning, “lying near, close, or contiguous; adjoining; neighbouring: a field adjacent to the main road”, the minimum lot width control only applies to a lot with a street frontage, as only a lot with a street frontage is “adjacent to the primary street frontage”. This interpretation, combined with the diagrams in Figures 6.2(b) and (c), indicates that the minimum lot width numerical control does not apply to battle-axe lots.

36. The Council disagreed, submitting that the 15m numerical control for the minimum lot width shown in table 6.2(b) of DCP 2013 does apply to the proposal.

37. I accept the applicant’s submission that the text of the provision, “measured at the building line adjacent to the primary street frontage”, combined with the explanatory diagrams in Figures 6.2(b) and (c), should be interpreted as excluding battle-axe lots. The label “Minimum Lot Width” is applied only to the diagram in Figure 6.2(b) for a lot adjacent to a primary frontage; and not to the diagram in Figure 6.2(c) for a battle-axe lot, which strongly indicates that the numerical control for minimum lot width applies only to lots adjacent to a primary frontage. Had the drafter intended the minimum lot width numerical control to apply to battle-axe lots, at the very least the “minimum lot width” label would have been applied to Figure 6.2(c).

Heritage experts’ evidence

38. The heritage experts agreed that the existing dwelling on the site does not contribute to the heritage significance of the HCA and the demolition of the existing dwelling is acceptable.

39. The heritage experts agreed that the building envelope of the concept dwellings, delineated onsite with height poles, would be visible from Day Road as a result of the slope of the hill. The clearest view of the concept dwellings, according to Ms Bangs, would be from a position in front of 50 Day Road, and the future dwellings would also be visible from positions in the public domain in front of 48 and 54 Day Road.

40. According to Ms Kemp, the subdivision pattern of The Gullies Precinct within the wider HCA has no heritage significance to the HCA but is a product of subdivision and re-subdivision which has occurred through the 20^th century and in more recent decades, since the original 1901 subdivision. This has resulted in a subdivision pattern which includes numerous battle-axe allotments of varying shapes and sizes, which does not reflect the characteristic built pattern in the wider HCA. The subdivision pattern is “irregular”, meaning that the subdivision pattern and shapes in The Gullies Precinct are not consistent. In her view, the proposal continues the established tradition of re-subdivision of allotment in The Gullies Precinct, as it does not impact on a characteristic subdivision pattern of the HCA.

41. In Ms Kemp’s view, the size of the resulting lots is similar to the size of other battle-axe lots in the area and therefore the proposed lots are not uncharacteristic in The Gullies Precinct. The partial visibility, as a result of the topography, of the concept dwellings on the site should not be considered to result in adverse heritage impact on the HCA.

42. According to Ms Bangs, the proposal would result in narrow shaped allotments that would adversely impact the environmental heritage value of The Gullies Precinct, as it would bring about an adverse intensification of development in an area currently characterised by low density residential dwellings sensitively and unobtrusively located within natural landform settings. In her view, the concept dwellings will impact on public domain views and the distinctive landscape setting of the escarpment.

Consideration

43. I do not accept the subdivision pattern of the Gullies Precinct within the wider HCA has no heritage significance to the HCA. The statement of significance for the HCA includes, “demonstrates a multi-layered history of suburban subdivision, re-subdivision and development from the initial boom period of the Victorian crown [sic] land subdivision of 1887 to the 1960s, and less noticeably into the present day”. It is the sub-division pattern of the whole of the HCA, including original subdivisions and later re-subdivisions of The Gullies Precinct, that “demonstrate a multi-layered history of suburban subdivision [and] re-subdivision”. The subdivision pattern of The Gullies Precinct contributes to the identified heritage significance of the HCA.

43. I do not accept that the description of The Gullies Precinct as, “the subdivision pattern is irregular with some cul-de-sacs” means that the subdivision pattern is not “consistent”. The subdivision pattern is irregular, in the sense that is not a gridiron plan; instead, it responds to the hilly topography of the area. The subdivision and re-subdivision of The Gullies Precinct has resulted in a pattern that is fairly consistent, in the sense that the proportions of the allotments have generated low density residential development in generously landscaped settings.

44. It is not the comparable size, as in the area, of the resultant lots that should be compared to the existing battle-axe and other allotments in the area, it is the “subdivision pattern” which is also established by the proportions of the lots. The proposal results in two uncharacteristically narrow long lots, which are atypical of the subdivision pattern in The Gullies Precinct.

45. The concept dwellings necessarily occupy the available width of each allotment and step up the hill. The future development of the uncharacteristic lots would be conspicuous in the HCA despite being battle-axe lots, because of the steep slope of the land. The proposal seeks to alter the established subdivision pattern, such that the future development of those lots would not be compatible with the established character of the HCA.

Conclusion

47. I am satisfied that the second particular of the Council’s heritage contention is made out because the proposal does not satisfy the desired outcomes of section 9.3.5 of DCP 2013. The proposal fails to retain the characteristic subdivision pattern of The Gullies Precinct, and the subdivision pattern of The Gullies Precinct contributes to the heritage significance of the HCA.

Orders

48. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 405/2020 for the demolition of existing structures and the subdivision of one lot into two lots, at 52A Day Road, Cheltenham, is refused.

3. The exhibits, other than exhibits 1, A, B and C, are returned.

____________

Susan O’Neill

Commissioner of the Court

**********

Decision last updated: 21 April 2022