Regal Living v Hornsby Shire Council

[2008] NSWLEC 1301

Land and Environment Court

of New South Wales

CITATION:	Regal Living v Hornsby Shire Council [2008] NSWLEC 1301
PARTIES:	Applicant: Regal Living Pty Ltd Respondent: Hornsby Shire Council
FILE NUMBER(S):	11100 of 2007
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- seniors living
DATES OF HEARING:	15 July 2008
DATE OF JUDGMENT:	25 July 2008
LEGAL REPRESENTATIVES:	Applicant Mr J Thompson and Mr G Costellan, solicitors of Ritchie & Castellan Respondent: Mr I Woodward, solicitor of Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

25 July 2008

11100 of 2007 Regal Living Pty Ltd v Hornsby Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to demolish the existing improvements and erect a housing project for seniors containing 35 dwellings on lot 3 DP 547893, part lot 2 DP 845733 and lot 25 DP 255073, known as 232-236 New Line Road, Dural.

The site

2 The site has a 60m frontage to New Line Road and is connected to Sebastian Drive by an access handle. The total area is 5,168m2. There is a fall of almost 8m from northwest to southeast. The site forms the southern portion of the Dural Service Centre, which includes a mix of light industrial and service-related uses. The surrounding development is low-density residential.

The proposal and its history

3 The applicant proposes to develop the site with two interconnected buildings, one of three storeys and the other of four storeys. The buildings contain 35 apartments and parking space for 39 cars. Vehicular access is from Sebastian Drive.

4 The applicant lodged the development application in September 2006. Following notification the council received 74 submissions and a petition. In February 2007 the council considered the planning report of its staff, which recommended refusal. The council accepted the recommendation and refused the application. The applicant lodged the appeal in October 2007 relying on amended plans that required re-notification. The council received 44 submissions to the re-notified plans.

Relevant planning controls and policies

5 Seniors Living State Environmental Planning Policy (SLSEPP), under which the application is made.

6 State Environmental Planning Policy 65 – Design Quality of Residential Flat Buildings (SEPP 65), which applies to residential buildings over three storeys in height, and therefore to this proposal. The Residential Flat Design Code accompanies the SEPP.

7 Local Environmental Plan 1994 (LEP 1994), which zones the majority of the site Business E (Service Centre).

8 Dural Service Centre Development Control Plan (the Dural Service Centre DCP) applies to the Dural Service Centre in which the site is located. It establishes detailed planning controls for development within the Service Centre.

Matters in Contention

9 The council submitted its Statement of Contentions containing eight matters. During the hearing these were refined to the following three:

· Poor internal amenity: too few apartments receive adequate sunlight; road noise requires doors and windows of some apartments to be kept closed; the separation between buildings is too small; the setbacks from boundaries are inadequate; and the communal open space is too small.

· Poor accessibility: there is a bus stop only on the eastern side of New Line Road; there is no safe point at which a crossing refuge may be installed in Sebastian Drive; and the grades of the footpath are marginally too steep for wheelchairs.

· Impact on neighbours: the overshadowing of neighbouring properties to the south is unacceptable.

The objectors’ concerns

10 The Court heard the evidence of three objectors during the visit to the site. Ms Parisa Ettehad, who lives at 20 Daintree Place, said that her objection was to being overshadowed in the mornings. She also feared overlooking and the obstruction of her outlook. In her opinion, the proposal’s density was too high for the location.

11 Mr Barry and Mrs Caroline Lunn, who live at 62 Ravensbourne Circuit, said that they had two concerns: traffic impact, in particular on the waiting time exiting from Sebastian Drive to New Line Road, and the high density of the proposal, which was out of character with the surrounding development. Mr Trevor Cassie, who lives at 25 Bellenden Place, said that he was concerned about the impact on traffic and parking. In his opinion the height of the proposal was excessive. Mr John Motor, who lives at 4 Daintree Place, had a long list of concerns including the proposal being out of character with the area, overshadowing, overlooking, traffic impact, noise impact and excessive height.

Internal amenity

12 The council’s planning expert was Mr Neil Kennan, while the applicant’s was Mr James Lovell, both of them planning consultants. The applicant submitted calculations on the solar access available to the apartments. Mr Kennan did not think that those calculations were accurate. Mr Lovell agreed that the calculations were based on solar access to either the living room of an apartment or its open space. Moreover, the calculations did not take account of elements that cast shadows such as level differences, retaining walls, fences and partitions; and they described an apartment as being in full sunshine even where only a tiny corner of its patio was in sun. In my opinion, the information submitted by the applicant describes solar access as much better than it really is and cannot be relied on.

13 A widely accepted criterion for desirable solar access is three hours of sunshine into the living room at mid-winter. (The criterion appears in Hornsby’s planning controls relating to residential areas.) There is no information before the Court on the number of apartments that meet this criterion. A cursory assessment of the drawings suggests that there are few. I conclude that the solar access to the proposal is poor.

14 I should add at this point that achieving three hours of sunlight is not easy, nor always necessary for approval. Some urban sites are overshadowed before development occurs. On this site, which is on Sydney’s outskirts, it would be possible to achieve better solar performance, albeit at reduced yield.

15 I turn to the issue of noise. The applicant tendered an acoustic report that was prepared for a previous version of the application. The report came to the conclusion that some apartments would need to be acoustically treated and kept closed to meet noise criteria; they would therefore have to be mechanically ventilated. Because the report relates to an application that is similar to but not the same as the one before the Court, the general conclusions are probably valid, though it is not known how many apartments need acoustic treatment and mechanical ventilation. If the application were otherwise worthy of approval, the case would have to be adjourned and a new acoustic report prepared.

16 I turn to the separation between buildings. It is common ground between Mr Lovell and Mr Kennan that the distances between windows do not meet the criteria set down in the Residential Flat Design Code. In Mr Lovell’s opinion, this is acceptable because the windows are staggered, so that the potential for looking from one apartment into the other is reduced. In my opinion, in a semi-rural location and on an open site, there is little justification for placing buildings closer to each other than the Residential Flat Design Code suggests. The closeness of windows of habitable rooms is a negative feature of the proposal. It may not justify refusal by itself but it is a factor contributing towards it.

17 I turn to the issue of height. The DCP requires a maximum of two storeys. Mr Lovell points out, correctly in my opinion, that a two-storey warehouse would have the same height as a four-storey apartment building. I do not think that the height of the proposal is a reason for refusal.

18 I turn to the setback from boundaries. The setback provided from 20 Daintree Place varies from 5.5m to 11m. The DCP requires a 15m setback from the common boundary with residential development to the east and south. Mr Lovell argues that this requirement applies to commercial buildings only; however, there is nothing in the DCP to support his argument. Moreover, I do not see why an apartment building may come closer to the surrounding houses than, for example, a warehouse, from which there is little overlooking. Mr Lovell’s argument, that the proposal is no higher than a two-storey warehouse, is valid only if the proposal sets back the same distance as a two-storey warehouse would, which is 15m.

19 The above argument may be put another way. The residents around the site would have a legitimate expectation that development in the Business Centre Zone would comply with the Dural Service Centre DCP. They would therefore expect that the largest building would be a two-storey warehouse 15m from the common boundary. If a four-storey apartment building is built to the same height as a two-storey warehouse, it should also be 15m from the common boundary. The setback provided is inadequate. Either the setback should be increased or the height of the building reduced. I return to this issue below when discussing the impact on 20 Daintree Place.

20 I turn to the communal open space. Mr Kennan points out that an oval area marked on the plans as communal open space does not meet the requirements of SEPP 65 (25% of the site) because it is only about 5% of the site. Mr Lovell points out that there are other landscaped areas available for the enjoyment of residents. It seems to me that the truth lies somewhere between the two views: the communal open space should be greater than 5%, though it is not necessary (and not required by SEPP 65) to have 25% of the site specifically dedicated as communal open space and separate from landscaped areas. Some of the landscaped area, which is enjoyed mainly by looking at the vegetation within it and is not suitable for sitting around or croquet, can form part of the communal open space.

Accessibility

21 The applicant’s expert was Mr David Goding, while the council’s was Mr Mark Relf. It was common ground between them that there was a bus service within about 150m of the site that could take residents to within 150m of a shopping centre with the services required by the SLSEPP. Given that there was a bus stop only on the eastern side of Old Northern Road, residents returning from the shopping centre would have to travel past the site, wait on the bus in the depot until the bus was scheduled to return, and then get off at the bus stop near the site. Residents would have to cross Sebastian Drive as they walk to and from the bus stop. Mr Goding and Mr Relf agreed that a pedestrian refuge was required in Sebastian Drive, though the proposal did not include this. Mr Relf pointed out that part of the footpath was marginally too steep for wheelchairs.

22 In my opinion the accessibility of the site is marginally acceptable. If it were the only weakness of the proposal, it would not justify refusal of the application.

Impact on neighbours

23 The worst impact is on the rear yard of 20 Daintree Place, which now receives sunlight all day and would be overshadowed until 12 noon in mid-winter. In Mr Lovell’s opinion, this is acceptable because No 20 would still receive three hours of sunshine in the afternoon. The argument would be more convincing if the development complied with the 15m setback required by the Dural Service Centre DCP. As it is, much of the overshadowing is the result of the development being too close to the common boundary. It should be remembered that losing all one’s morning sunshine is a serious loss of amenity. If it is the inevitable outcome of a proposal that meets planning controls, it may be justifiable. It is not justifiable when it is due to a proposal that comes to within about 5m of the common boundary when the planning controls require it to set back by 15m.

Conclusion

24 The proposal has unacceptable internal amenity, poor accessibility, and its impact on at least one adjoining property is unacceptable. The appeal is therefore dismissed.

Orders

1. The appeal is dismissed.

2. Development application to erect a housing project for seniors containing 35 dwellings on lot 3 DP 547893, part lot 2 DP 845733 and lot 25 DP 255073, known as 232-236 New Line Road, Dural is determined by refusal.

3. The exhibits are returned.

___________________
Dr John Roseth
Senior Commissioner