Pollard v Blue Mountains City Council
[2008] NSWLEC 1134
•4 March 2008
Land and Environment Court
of New South Wales
CITATION: Pollard & Anor v Blue Mountains City Council [2008] NSWLEC 1134 PARTIES: APPLICANT
RESPONDENT
Eric Pollard & Anor
Blue Mountains City CouncilFILE NUMBER(S): 10573 of 2007 CORAM: Hoffman C KEY ISSUES: Appeal :- 4 Units under SEPP (Seniors Living) legislation, solar access, setbacks, landscaping, privacy, parking, traffic LEGISLATION CITED: Land and Environment Court Act 1979
State Environmental Planning Policy (Seniors Living) 2004
Urban Design Guidelines for In-fill Development (Seniors Living)
Blue Mountains Local Environmental Plan No 4
Blue Mountains Local Environmental Plan 2005
State Environmental Planning Policy No 1DATES OF HEARING: 04/03/2008 EX TEMPORE JUDGMENT DATE: 4 March 2008 LEGAL REPRESENTATIVES: APPLICANT
Mr D. Briggs, solicitor
of D. G. Briggs & AssociatesRESPONDENT
Ms N. Lowe, solicitor
of Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
4 March 2008
JUDGMENT10573 of 2007 Eric Pollard & Anor v Blue Mountains City Council
1 This was a Class 1 appeal, No. 10573 of 2007 between Eric Pollard and Another v Blue Mountains City Council in regard to a refusal of an original proposal for four units under State Environmental Planning Policy (Seniors Living) Legislation at No. 32 Wascoe Street, Glenbrook.
2 The subject land was generally level, rectangular in shape and had an area of 1,062 square metres with frontages of approximately 18 metres to Pool Lane at the rear and Wascoe Street at the front. The land contains a single storey dwelling house which is proposed to be demolished, and vegetation on the site consists of a number of large trees, some of them exotic. In the rear yard, the native trees being eucalypts and turpentines are mainly along the south-eastern boundary to Pool Lane. There is a group of trees on the north-east corner of the site adjacent Wascoe Street.
3 The locality consists mainly of dwelling houses of single and two-storey on similar sized allotments. The applicable legislation is State Environmental Planning Policy (Seniors Living) 2004 and the Urban Design Guidelines for In-fill Development (Seniors Living) Policy. The applicable statute is Blue Mountains Local Environmental Plan No 4.
4 There has been a subsequent gazettal of Blue Mountains Local Environmental Plan 2005, however it contains a saving clause which means the latter statute should be considered as if in draft form and exhibited but not yet made.
5 The zoning of the land under LEP No 4 is residential 2A(1) and under LEP 2005 (Living General). The matter had been initially the subject of a s 34 conference under the Land and Environment Court Act when it was for four units. No decision was made at the s 34 conference, and the parties have subsequently negotiated and the proposal has been amended and now comes before the Court as a three unit development with consent orders as in Exhibit A.
6 The applicant had also prepared two State Environmental Planning Policy No 1 objections relevant to the application. One is in regard to cl 104 of the Blue Mountains City Local Environmental Planning Plan 2005 and that instrument not being directly applicable, I consider that the SEPP1 objection is not necessary. The council in any case has supported the objection. In regard to the other SEPP No 1 objection, it is in regard to cl 38(3) of the Seniors Living SEPP requiring a minimum 20 metre frontage development standard.
7 The council again has supported this objection on the basis that the proposal meets the underlying objectives or purposes of the standard, that being:
“The objective of this chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frailer, and other people with a disability regardless of their age.”
8 The objection says that the development has been designed having regard to the allotment depth, the allotment width, the orientation, the existing vegetation upon the land and the topography. With the exception of the minimum allotment width the proposal complies with the relevant development standards.
9 I note that in the amended plan the design consists of two units in a line with the Wascoe Street frontage, then there is a considerable break between those two and unit 3 which fronts Pool Lane. This has benefit of enabling good solar access to unit 3 to be retained, it also has enabled the provision of larger private open spaces than previously that enables good solar access and courtyards to units 1 and 2.
10 The next door neighbour to the west, Mr Chambers, of 33 Wascoe Street, was concerned that this development may restrict his ability to develop on his land in the future, adjoining units 1 and 2. It seems to me from the shadow diagrams of the proposal that it would still be possible to design a new dwelling on his property at the Wascoe Street frontage, taking into account any impacts from the subject plans. However that future situation is not usually a relevant matter when a proposal on the subject land is being designed in accordance with the appropriate requirements.
11 The redesign of the development has also retained substantial vegetation on the site which will enable it to sit comfortably within the evolving character in the zone, and the anticipated future character. The building widths to Wascoe Street represent 60% of the width of the land, and in streetscape terms the width of that building is comparable to other development in the locality. It also has a substantial front setback of 8 metres to the building, enabling good landscaping to be presented to Wascoe Street.
12 The height of the building whilst two-storey is in the nature of the second storey being rooms in the roof, such that its bulk and scale does not present as an overdevelopment of the site. In respect of the Pool Lane presentation, unit 3 occupies the majority of the width having a garage attached on the north-eastern side, however once again it is retaining substantial turpentine trees in the setback to the laneway retaining the character of the locality.
13 Mr Chambers was concerned that it might create a precedent for other development of “Seniors Living” proposals nearby if this SEPP1 objection were to be granted. It seems to me that each case needs to be assessed on its merits, and the low density development of this site renders an appropriate development that could be justified by upholding a SEPP1 objection.
14 In dealing with the other matters that had previously been of concern to the council, I accept the council officer’s reports identifying that the scale and character, the site layout, the amenity of adjoining sites, and the provision for housing choice by variety of unit sizes have been dealt with, together with the provision of additional solar access and the arborist report providing additional information sufficient for the proper consideration of the proposal.
15 In regard to the others of Mr Chambers’ concerns, he was concerned about privacy from the first floor windows, from dormer windows facing his property. I have been satisfied that the conditions of the council requiring that the sill levels of the dormers be raised to 1.6 metres, would ensure there would be no overlooking, and I note also that some of the windows are to bathroom areas, or bedroom areas which are not usually the source of privacy concerns.
16 In regard to parking, each unit will have a garage and there is provision for two other spaces on the site for visitors which would give adequate parking for this proposal.
17 In regard to the objectors concerns over increased traffic in Pool Lane, the council has provided a condition to which the applicant has agreed that title shall be required of the occupants of unit 3 to enter only via Pool Lane and exit via Wascoe Street. That would reduce the number of additional trips in the laneway to the minimum per day from one dwelling.
18 The change in the layout and reduction of the bulk of the building has also reduced overshadowing of No. 31 Wascoe Street, such that it would receive quite adequate solar access to both its house and back yard.
19 I note that the driveway is along the common boundary with No. 31 Wascoe Street providing greater side boundary setbacks than normally expected in a development of this kind.
20 On the basis of this assessment I see no reasons sufficient to refuse the consent orders sought by the parties, however in examining their draft consent orders and conditions, there are a number of matters of concern to me. This relates to condition 1 in which the sedimentation plan in Exhibit A is excluded from approval, that being drawing 284/15B. On looking at that plan I notice that the construction access and sediment control facilities are indicated going right through the trees to be kept on the north-eastern corner of the site, and therefore that plan is correctly excluded. However, condition 45 of the orders refers to an approved sediment and drainage plan, which of course none exists, and this must be attended to.
21 It also seems to me there are a number of conditions that require reference to an approved and revised landscaping plan, because of the requirements of tree protection and the arborist’s report. The landscaping plan in Exhibit A being drawing 284/09B does not appear to take appropriate account of the arborist’s report’s requirements, indeed condition 23 refers to an improved landscape plan and due to the modifications required could not be the plan in Exhibit A. That needs to be attended to as well.
22 The parties have handed up an amendment to condition 28, adding in bullet points 2, 3 and 4, the words “and retaining walls” after the word “building” so that Mr Chambers concerns about his boundary retaining wall is taken into account in any excavation and construction adjoining. The wording is acceptable and it should be incorporated by the parties in updated draft conditions.
23 Other conditions that concern me is conditions 10, 39 and 40 in regard to a services plan which I do not have the benefit of. Considering the requirements of the arborists’s report for protection of trees, it is necessary for there to be a services plan, and also a drainage plan such that the trees are adequately protected.
24 Also of importance, bearing in mind the exclusion or the unsuitability of drawing 284/15B which showed the construction driveway access to the site in an inappropriate location, there needs to be the identification of an appropriate construction driveway access onto the site.
25 In regard to the protection of vegetation it seems that condition 24 only requires a reference to the arborist report in Exhibit B, rather than compliance with it, and compliance is necessary on the matters that I have already identified in order to ensure an appropriate outcome during the course of construction and thereafter.
26 It is therefore my intention to foreshadow approval if the parties can reach agreement under their consent orders to suitable additional wording to the various conditions I have identified, and therefore I direct the parties to prepare such a document within 48 hours, to be forwarded to the court by electronic means, and if satisfactory I shall deal with the orders in Chambers, if unsatisfactory I shall recall the parties by notice through the Registrar on two days’ notice.
___________________
- K G Hoffman
Commissioner of the Court
ljr
0
0
6