Potter v Hunter Hill Council

[2022] NSWLEC 1519

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Potter v Hunter Hill Council [2022] NSWLEC 1519

Hearing dates:

23 June 2022

Date of orders:

26 September 2022

Decision date:

26 September 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application No. 2021/1279 is determined by granting consent to the application subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions - car port - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1, cl 55

Land and Environment Court Act 1979, ss 34AA, 39

Hunters Hill Local Environmental Plan 2012, cll 1.2, 2.3, 5.10, 6.7, Dictionary

State of Environment Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Hunters Hill Consolidated Development Control Plan 2013

Category:

Principal judgment

Parties:

Fiona Potter (Applicant)
Hunters Hill Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2022/70846

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. PAN 168232 seeking development consent for alterations and additions to an existing dwelling (the Proposed Development) at 4 Collingwood Street Woolwich, legally described as Lot 3 in DP 26239 (the Site).

2. The matter was listed for conciliation and hearing pursuant to s 34AA of the Land and Environment CourtAct 1979 (LEC Act). The Conciliation Conference was terminated and the matter proceeded to hearing.

3. The proceedings commenced with an on site inspection and the court heard from objectors on Collingwood Street on the road carriageway between the Site and numbers 9 and 11 Collingwood Street. The Court heard from three objectors, and then proceeded with an inspection of the view from the ground floor balcony of the house at 11 Collingwood Street. The parties and the Court then proceeded to walk to number 6 Collingwood Street then up to Gale Street and down the driveway to number 10A Gale Street and concluding on the front grassed area of 10A Gale Street before returning to the Land and Environment Court. The evidence given during the on-site inspection is evidence in these proceedings.

4. The Applicant is the owner of the Site and resides at neighbouring 10A Gale Street Woolwich with her husband and three children. The Applicant’s husband gave evidence of the family’s experiences of the conflicts of use of their driveway, the now extinguished Right of Way and explained the steps taken to address the situation including the purchase of 6 and 2 Collingwood Street and subsequent extinguishment of the Right of Way for each of those properties. These steps included, in addition, regularising by way of development consent the construction of and use of garages at the front of each property, namely facing Collingwood Street. These proceedings are the last of the properties to establish a change to parking arrangements in order to provide off street parking following extinguishing the Right of Way to the rear of the Site.

5. The case is about the location of the proposed carport and whether the Hunters Hill Consolidated Development Control Plan 2013 (HHDCP) provisions require the parking to be located to the rear of the Site.

6. The parties relied on the evidence of Town Planning Experts, Mr Scott Barwick for the Respondent and Mr Andrew Martin for the Applicant who following a joint conference prepared a Joint Expert Report filed 20 June 2022 (Exhibit 3)(JER). Mr Barwick and Mr Martin were also asked questions during the proceedings. During the joint conference the experts discussed amended plan which were subsequently subject to a Notice of Motion filed by the Applicant on 22 June 2022. These amended plans have been subject to evaluation and discussion between the experts.

7. The Applicant moved on the Notice of Motion without objection from the Respondent and I made the following orders:

1. The Court, exercising its functions under s 39(2) of the LEC Act, the function of Hunters Hill Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), agrees to the applicant amending the development application with amended architectural drawings prepared by Dalgliesh Ward and Associates Pty Ltd as follows:

1. DA01 Proposed Site Plan Rev A dated 8 June 2022;

2. DA02 Proposed Carport Plan Rev A dated 8 June 2022;

3. DA03 Proposed Carport and Driveway Details Rev A dated 8 June 2022;

4. DA04 Proposed Internal Alts to Lower Ground dated 9 September 2021;

5. DA05 Proposed Alts to North (Rear) Elevation dated 9 September 2021;

6. DA06 Proposed Landscape Areas Calculations dated 9 September 2021;

7. DA07 Proposed Midwinter Shadow Diagrams dated 9 September 2021;

8. The Court notes that the amended plans, filed in Court with the Affidavit of Mr Knox on 22 June 2022, were uploaded onto the NSW Planning Portal by the Applicant on 23 June 2022.

9. I made a direction for the Respondent to file the Draft/Proposed Conditions of Consent by 10 am Friday 24 June 2022. The Draft/Proposed Conditions of consent were filed on 23 June 2022 and have been marked Exhibit 6. None of the conditions of consent are in dispute.

10. The Applicant’s case is that the Site has no legal vehicular access to the existing garage at the rear of the house, rendering the garage otherwise redundant.

11. The Respondent does not raise any contention regarding the proposed alterations to the existing garage. In relation to the proposed new car port structure, the Respondent’s contentions are set out in the Statement of Facts and Contentions filed 3 May 2022 (Ex 2).

12. The experts’ relevant evidence in the JER is extracted below as follows, where AM is Mr Andrew Martin and SB is Mr Scott Barwick:

“1.11 Alternate design presented via Joint Conferencing

51. AM presented an alternate design (Revised Plan) to the provision of car parking to the site. The alternate design maintains the location of the proposed car parking at a nil setback to Collingwood Street and adjacent to the existing garage at 2 Collingwood Street.

52. The amended design removes the heavy steel plate enclosure to each portal and instead provides for a single centrally anchored roof. The roof is to be a cantilevered structure anchored from the central pedestrian entry structure.

53. This design approach allows for each car parking space to be open on each side and would remove the visually heavy enclosure of the design the subject of the appeal.

54. The concept also includes a planter box to the western edge of the western most car parking space and a planter to the northern edge of the most western car parking space.

55. SB has considered the merits of the Revised Scheme below but notes that the alternate design has not been filed with the Court and the applicant has not sought leave to rely upon this amended design approach.

56. The alternate design could be acceptable if the circumstances are that:

• the right of carriageway has been lawfully extinguished,

• the terms of the existing consent relying upon the existing garage accessed from the rear are not breached;

• there is no alternate rear access available; and

• The amended design is the subject of consideration for determination.

57. If these four factors are satisfied then the alternate more lightweight and transparent design could be supported as:

• The building mass presented to the street has been substantially minimised with the removal of the streel plate portal enclosures

• Further enclosure of the carports via doors is less likely with the proposed design

• A condition could be imposed precluding the enclosure of the carport via doors or side walls

• A condition could be imposed requiring supplementary planting in the road reserve but limited in mature height so as not to potentially intrude into views enjoyed by properties to the south

• There is no loss of existing on-street carparking capacity.

58. Satisfaction of these requirements would allow for a consideration of the carport consistent with the design principle for garages and carports within the front building line which states:

• If the garage or carport can only be located within the building line, it should be set as far to the side as possible without affecting the amenity of neighbouring properties.

59. Further SB is satisfied that a design with a cantilevered roof would not adversely impact upon private views or views available from the public domain.”

13. In relation to the four circumstances listed in paragraph 56 of the JER extracted above, I am satisfied that the right of carriageway has been lawfully extinguished because the Applicant tendered evidence of such by way of title searches disclosing no easement or other entitlement of the Site to a right of carriageway (Ex D) and I conclude that there is no safe, legal alternative rear access available. I also address Part 3.8.8 of the HHDCP below as a further reason why the driveway to the rear of the Site is not safe. The Respondent does not contend any concern regarding the second bullet point of paragraph 56 of the JER and I note that the Draft/Proposed Conditions of Consent filed 23 June 2022 are by consent. Finally, the amended design is now the Proposed Development before the Court for determination.

14. Part 3.8.8 of the HHDCP was not considered by Mr Barwick because the Proposed Development does not involve subdivision. Part 3.8.8 of the HHDCP is included in the Respondent’s Bundle of Documents (Ex 4) at Tab 30 and appears within Part 3.8 titled “Subdivision” and reads as follows:

“3.8.8 ACCESS

Proposed subdivisions should satisfy the following restrictions and requirements:

(a)   Provide vehicle access to every allotment in order to accommodate off-street parking in locations which satisfy Chapter 3.6 Garages & Carports.”

15. The part in the HHDCP goes on to require a minimum width of 5m, which is in fact wider than the existing driveway access to No 10A Gale Street being 3.8m. Further, there is a requirement for at least one passing bay for every 40 metres of battleaxe driveway length together with landscaped verges that are at least 400mm wide along both sides. There are no passing bays in the driveway which is approximately 100m in length which would require a minimum of 2 passing bays if it were a new subdivision. Accordingly, it is my opinion that as the driveway to the rear of the Site does not comply with these controls in Part 3.8.8 of the HHDCP, any shared use of the driveway to the rear of the Site is not safe.

16. The Applicant submits that the R2 zone objective “to provide for the housing needs” includes carparking and access, namely the accommodation of a motor car in a safe and proper and reasonable manner off street.

17. The objectives of the R2 Zone are as follows with emphasis added to the third and fourth objectives relied on by the Respondent as being relevant to the Proposed Development, although I note that the Applicant made submissions regarding the first objective as well:

“• 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.

•  To maintain the identity of Hunters Hill by ensuring that new buildings are compatible with the garden suburb character and heritage values that distinguish the low density localities.

•  To provide for high levels of amenity that are consistent with a low density residential environment.”,

18. Mr Potter’s evidence, on site and supported by a written submission and photographs tendered and marked Ex B, is not disputed and Mr Barwick agrees it to be objectively understandable.

19. The existing subdivision pattern from 1952 predates the HHDCP Subdivision controls. Mr Barwick’s evidence is that the conflict between neighbours where reversing up driveway is unsatisfactory, reversing out onto Gale Street is not safe as it does not provide sight distance for vehicles and pedestrians and the gradient is too steep for today’s standards. A traffic engineer would not approve the access handle if it were proposed today.

20. Mr Barwick accepts that although Mrs Potter currently owns both 10A Gale Street and the Site, the subject of these proceedings, she could technically reinstate a right of carriageway for a vehicle to access the rear of the Site however, that would be unsafe. Ultimately, Mr Barwick agrees that there is no safe and appropriate rear access to the Site and concludes as in the JER to support the amended plans now forming the Proposed Development.

21. I accept Mr Barwick’s evidence that the “status quo” is unsafe.

22. In relation to the third R2 zone objective the Applicant submits that the identity of Hunters Hill is retained as evidenced during the site view at the commencement of the hearing. I accept that the Council is not concerned with compatibility of the Proposed Development with the streetscape.

23. I now turn to consider the concern expressed by the resident across the road from the Site regarding views and that “the roof of the carport structure would cause the views to disappear”. Following the on site inspection, it is agreed that the neighbour has expansive views of Lane Cove River from the two storey residence. Mr Martin agrees that there will be no view impact.

24. Other concerns raised by neighbours include the potential loss of on street parking. I accept that there is no loss of on street parking as there is no loss of kerbside parking proposed by the Proposed Development.

25. For all these reasons it is in the public interest to grant consent to the Proposed Development.

26. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied. The parties also referred the Court to the Statement of Environmental Effects dated November 2021 prepared by Andrew Martin Planning which from page 8 addresses the Class 1 Application, as filed (Ex A)

27. The Proposed Development is for the purposes of a dwelling house as defined in the Dictionary to the Hunters Hill Local Environmental Plan 2012 (HHLEP) and the Site is situated within the Zone R2 Low Density Residential (R2 Zone) pursuant to the provisions of the HHLEP.

28. The aim of cl 1.2 (2)(i) of the HHLEP;

“(i)  to promote high standards of urban and architectural design quality.”

29. The objectives of the R2 zone have been considered as required by cl 2.3(2) of the HHLEP.

30. The Site is located within the mapped Hunters Hill Conservation Area No 1 – The Peninsula Heritage Conservation Area (HHCA) (item C1 Sch 5 to the HHLEP). Pursuant to cl 5.10(4) of the HHLEP the Court must consider the effect of the Proposed Development on the heritage significance of the HHCA. For that purpose, a Heritage Impact Statement (HIS) was prepared by Weir Phillips Heritage and Planning dated 12 November 2021 (Tab 5 Class 1 Application filed 11 March 2022, Ex A). The HIS concludes that,

“The proposed carport will have a minor and acceptable impact on the Heritage Conservation Area and heritage item as it is similar to and in keeping with existing carports, driveways and garages on Collingwood Street, the Heritage Conservation Area and the heritage item.”

31. The Site is located within the River Front Area Map of the HHLEP. Development on river front areas is to comply with cl 6.7 of the HHLEP which has the following objectives:

“(a)  to identify river front areas that have particular scenic value when viewed from waterways and adjacent foreshore areas,

(b)  to ensure that development in these areas minimises visual impacts by appropriate siting and design of buildings together with the conservation of existing trees,

(c)  to maintain existing views and vistas towards waterways from public places.”

32. Prior to granting development consent, the Court must be satisfied that (cl 6.7(3)):

“(a)  measures will be taken, including in relation to the location, design and appearance of the development and conservation of existing trees, to minimise the visual impact of the development to and from the nearest waterway, and

(b)  any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out, and of surrounding land, will be maintained, and

(c)  existing views towards waterways from public roads and reserves would not be obstructed.”

33. At paragraph 57 of the (JER), it is agreed that the revised design of the Proposed Development could be supported.

34. Given the historical use of the Site for residential purposes, there is no reason to believe that the land is contaminated (s 4.6 of the State of Environment Planning Policy (Resilience and Hazards) 2021).

35. A BASIX Certificate dated 4 October 2021 has been provided to satisfy the requirement in Sch 1 of the EPA Regulation 2000. The amendments relating to the carport do not affect BASIX obligations.

36. I conclude that the development application should be determined by the grant of development consent.

Orders:

37. The Court orders:

1. The appeal is upheld.

2. Development application No. 2021/1279 is determined by granting consent to the application subject to the conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

70846.22 (Annexure A) (183247, pdf)

**********

Amendments

26 September 2022 - Deleted Annexure A duplicate

Decision last updated: 26 September 2022