Samjen Investments Pty Ltd v Hornsby Shire Council

[2004] NSWLEC 208

Land and Environment Court

of New South Wales

CITATION:	Samjen Investments Pty Ltd v Hornsby Shire Council [2004] NSWLEC 208
PARTIES:	APPLICANT Samjen Investments Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10545 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- proposal for 2-storey town houses in a conservation area - prominent corner site - gateway to conservation area - sympathy with heritage value of conservation area - and heritage items and streetscape - vehicle ramp access - disable persons access.
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	29/03/04-30/03/04
EX TEMPORE JUDGMENT DATE :	04/02/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen, barrister SOLICITOR Hannaford Lawyers RESPONDENT Mr I Woodward, solicitor SOLICITOR Hornsby Shire Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10545 of 2003 Hoffman C 2 April 2004

Samjen Investments Pty Ltd
Applicant

v Hornsby Shire Council
Respondent Judgment

1. This was a class 1 appeal, No. 10545 of 2003, between Samjen Investments Pty Ltd and Hornsby Shire Council in regard to the refusal of an application for 12 two-storey townhouses, called multi-unit housing with basement car parks on 2 The Crescent and 381 Pennant Hills Road, Pennant Hills.

2. The land was approximately a trapezoidal shape with frontage to The Crescent on an obtuse angle corner with Pennant Hills Road. Then there was a long frontage on the south side of Pennant Hills Road for the site and then a small frontage to Railway Parade. This small frontage was the detached end of the main part of Railway Parade and the main part was on the north side of Pennant Hills Road and ran alongside the railway line.

3. The rail station was just across Pennant Hills Road from the site, in a cutting and there was a high pedestrian overbridge from the detached end of Railway Parade adjacent the site across to the north side of Pennant Hills Road and the railway station.

4. Adjoining the site on its Railway Parade frontage was a heritage item, a Federation house called Doonbar. Adjoining the site on its eastern side was another late Federation house adapted to be a nursing home, it fronted The Crescent and was designated a contributory item to the heritage of The Crescent. The site and a number of Federation and Queen Anne houses and some of their gardens extending for a city block on both sides of The Crescent from Pennant Hills Road was a designated conservation area. Number 1 The Crescent, opposite the nursing home, was within the conservation area too but it was a post World War II bungalow and not a heritage item.

5. On the corner opposite the site was a two-storey video store, it was between No. 1 The Crescent and Pennant Hills Road. Its main frontage was to Pennant Hills Road and it was not in the conservation area.

6. There was an existing drive entry to the site off The Crescent quite close to the traffic lights on the intersection with Pennant Hills Road; it was to be reused as an exit driveway only from the basement car park. The entry driveway was to be via Hampton Road on the south side of the site. Hampton Road dead-ended at the intersection with the detached end of Railway Parade. There was no access to Pennant Hills Road at that point except for pedestrians, so driving to the site one would go along The Crescent, turn right, turn right again into Hampton Road and then onto the stub of Railway Parade.

7. This stub end of Railway Parade was constructed as a brick paved driveway up to the garage of the heritage item, Doonbar, on the south side of the site. This also gave access to the site itself, so the proposal had its entry driveway from there down into the basement.

8. The proposed units were arranged in 4 two-storey buildings set asymmetrically on the site. Units 1 to 4 face The Crescent with a picket fence near the front boundary and they each had a garden gate onto the footpath and a landscaped courtyard forming a front garden to The Crescent.

9. Just around the curve of the boundary onto Pennant Hills Road the fence became a 1.8 m high masonry wall with piers and stone caps. Landscaping was proposed on the street side of the wall as well as the inside and between it and units 5 and 6 there was a courtyard for each. The wall continued along the Pennant Hills Road frontage where there was the main pedestrian gateway off the street. The wall, the 1.8 m masonry wall, then continued to the drive entry gates on the south side at Railway Parade.

10. In that last length behind the wall was the garbage bin storage area and a common open space area. Across this common open space area away from Pennant Hills Road was the courtyards of units 7 and 8 and they were to be designed as disabled access units. Originally two bedrooms each, they were reduced to one bedroom by the end of the hearing as discussions between the disabled access experts proceeded and rooms had to be expanded to provide for wheelchair access.

11. Each of the units 1 to 8 had rear service courtyards too, and behind them was internal pathways through the landscaping on site to units 9 to 12. The latter units backed onto the nursing home land. These units had front and rear courtyards also.

12. The design of all units was two-storey brick with high central featured brick gables on the second storey of the bigger buildings, and smaller gable ends above porches at the ground floor level. Many windows at both ground and first floor level had tiled awning roof sunshades above them. The main roofs were hipped and pitched at 30 degrees and concrete tiled apart for the feature gables. Units 1 to 4 was one of the bigger buildings with the high central feature brick gable on the second storey and two porch gables on the ground floor level facing The Crescent.

13. The issues in the appeal were:


1. Whether the proposed development satisfies objectives (b) and (c) of the Residential B Medium Density Zone of Hornsby Local Environment Plan in that it does not promote a variety of housing types, (b) does not provide for development, that is, within the environmental capacity of a medium density residential environment.

2. Whether the proposed development complies with the density element of the Medium Density Multi-unit Housing Development Control Plan in that it does not provide for a mix of dwelling sizes.

3. Whether the proposed development complies with the design element of the Medium Density Multi-unit Housing Development Control Plan in that the design does not complement the character of the area.

4. Whether the proposed development complies with the height element of the Medium Density Multi-unit Housing Development Control Plan in that the design does not provide varied heights and roof lines to add interest or suit the character of the area.

5. Whether the design of the proposed development on the prominent site corner of The Crescent and Pennant Hills Road; (a) provides for efficient site planning; (b) promotes an acceptable level of residential amenity; (c) provides adequate sight lines between the private and public domain and whether the internal proposed fencing is appropriate; (d) adequately addresses the streetscape character of Pennant Hills Road and The Crescent; (e) provides an appropriate interface with the neighbours in terms of built scale and form; (f) adequately promotes indoor and outdoor living; (g) should be redesigned so as to reduce the number of units numbered 1 to 4 to two single storey units including second storey accommodation within the roof of up to 40 degree pitch; (h) should provide at least two adaptable units in accordance with council's Access and Mobility Development Control Plan; and, (i) provides for architectural quality.

6. Whether the proposed development complies with the heritage element of the Medium Density Multi-unit Housing Development Control Plan in that the development has not been sympathetically designed to ensure that the existing heritage value of the streetscape and character of the area is maintained.

7. Whether the proposed development is likely to adversely impact upon and affect the heritage significance of the heritage conservation area known as The Crescent, Pennant Hills, heritage conservation area within which the appeal site is located.

8. Whether the proposed development satisfies the objectives of the Heritage Development Control Plan.

9. Whether the proposed development complies with the design and streetscape elements of the heritage development control plan in that; (a) the development has an unacceptable impact on the character of the streetscape and the heritage conservation area; (b) the development has an unacceptable impact on the setting of adjacent heritage items and the heritage conservation area generally; (c) the form, scale and siting and character of the proposed development are inconsistent with those of contributory buildings within the heritage conservation area; and, (d) the intensity of the development is inconsistent with the existing development pattern in the area.


(i) Whether units 1 to 4 should be reduced in height to a single storey with a possible part second storey within the roof space with a roof pitch of up to 40 degrees similar to the adjacent Ballina nursing home.

(ii) Whether the two storey element height, bulk and scale of the development, in particular units 1 to 4, is consistent with the form, scale, siting and character of other contributory buildings in the heritage conservation area.

(iii) Whether the number of units in the building containing units 1 to 4 should be reduced to provide a maximum of two units of a more traditional semi-detached building size to complement the heritage significance of the area.

(iv) Whether the proposed buildings may be constructed out of building materials which are more sympathetic to the heritage conservation area and that proposed.

(v) Whether the 1.8 m high masonry fence in The Crescent frontage would impact unacceptably on the setting of the heritage conservation area.

(vi) Whether the design of the proposed driveway and its gun-barrel effect is appropriate in the conservation area.


10. Whether the development including the driveway to The Crescent is capable of modification to avoid damage to root systems of trees on neighbouring properties.

11. Whether there is adequate information to determine how the landscape is to work when planting in the on slab areas above the car park.

12. Whether there is any landscape proposal capable of reasonable understanding, which is consistent with the architectural plans.

13. Whether adequate canopy trees have been or are capable of being provided within the proposed development.

14. Whether the driveway to The Crescent is too steep and too narrow, not in conformity with Australian Standard 2908.1 1993 and whether they are inappropriate transitions and grades.

15. Whether the car parking layout complies with Australian Standard 2890.1 1993.

16. Whether any or any adequate provision has been made for disabled access car parking and appropriate graded access from the required adaptable units to the required designated disabled car parking.

17. Whether the proposal is contrary to the formal views of the Roads and Traffic Authority in their letter of 29 April 2003 and the Rail Authority as stated in their letter of 13 January 2003.

18. Whether in the interests of the public, and having regard to the weight and substance of the objections by local residents and the circumstances of the case, the application should be refused and the appeal dismissed.


14 . During the hearing as a result of consultation amongst experts and the tendering of amended drawings some of these issues were resolved.

15 . The respondent's evidence was heard from:
· Mr DP Logan, architect and heritage expert,
· Mr PA Fryar, town planner and manager assessments for the council.

16 . Objectors' evidence was taken on site. There were perhaps 20 or 30 objectors on site and the persons who gave evidence were:
· Mrs Healey of 4 The Crescent,
· Mr B Ash of the Pennant Hills Civic Trust Incorporated,
· Mrs W Geraghty of 3 The Crescent,
· Mr C Meanie of 14 The Crescent and
· Ms F Easy, address not given.

17 . There were also in evidence reports and drawings for the respondent from Ms N Sonter landscape consultant, Mr M Harrison town planner and urban designer, Mr T Rogers, traffic engineer and Mr T Beardsmore, disability access consultant, but they were not required for cross-examination.

18 . One of the major concerns of the objectors was increased congestion on The Crescent due to extra traffic movements created by the proposal. It seemed that commuter parking and persons accessing the video store from The Crescent and local traffic caused congestion.

19 . The Crescent and George Street, the next street north along Pennant Hills Road, were the only roads into and out of the locality east of Pennant Hills Road at this particular point. Within that locality there were approximately 600 houses and the Pennant Hills Park. Pennant Hills Park was a very large facility containing many playing fields, netball courts and other sports facilities. The number of residents and the visiting sports people led to long vehicle queues at the traffic lights and aggravated drivers at peak hours, and at weekends when the park facilities were in operation.

20 . Whilst not in issue the Court called for and received into evidence the council's recent studies on this situation in order to better understand the traffic experts' opinions on the impact of the proposal.

21 . The applicant's evidence was heard from:
· Mr J Hewitt, traffic engineer,
· Mr CF Blythe town planner,
· Mr G Patch, architect and heritage expert.

22 . There were also in evidence reports from Mr R Klinger, disability access expert, but he was not required for cross-examination. Landscape plans and a series of amended building drawings starting at Exhibits J, then K, M, N and Q, resulting from the joint experts' reports, were also in evidence.

23 . In regard to the traffic matters the site would generate about five cars an hour in peak and less at other times. The exit being to The Crescent it meant these cars would join the queue at the stop lights quite close to the intersection. The residents said by the time drivers got to that point in the queue they were usually aggravated and unlikely to let persons emerging from the site into the line of cars.

24 . Mr Hewitt said that at the peak rate of one car every 12 minutes leaving the site there would not be the frequency to create more congestion than there already was. Drivers emerging from the site would have to wait on the footpath crossing until there was a gap in the line of cars or a driver waved them in. He said the nursing home next door apparently was able to utilise its driveways and the site would be able to do the same without unacceptable delay. The council engineer's report agreed with this.

25 . The evidence brought from the council on the overall congestion of The Crescent, especially at weekends, showed the council had considered the matter in 2003 and imposed a “no stopping” zone on the kerbside exit lane at weekends to give a left turn queue into Pennant Hills Road. Also council had asked the Roads and Traffic Authority to re-phase the traffic lights at weekends to give a longer green light to traffic exiting and entering The Crescent from Pennant Hills Road.

26 . Additional traffic lights at George Street were considered by council and the Roads and Traffic Authority but they did not favour them as the intersections were too close together. Mr Hewitt did not agree with that conclusion. The Court has come to the opinion that the solution to this problem was beyond the scope of this appeal. The Court concluded the proposal would add very little to the existing traffic congestion and it was not sufficient reason for refusal.

27 . The observation might be made that the ultimate solution may be to create a third exit from the area to the south past Pennant Hills Park. Residents down past the sports facilities were concerned about bushfire hazard from the large area of bushland beyond and a new road would give additional escape routes, as well as ease day to day conjestion.

28 . The parties gave considerable evidence on the history of the site. It had once held an old telephone exchange which was resumed by the Roads and Traffic Authority for widening of Pennant Hills Road and the new pedestrian overbridge. The residue of that parcel fronting Pennant Hills Road had been vacant since then, and the site now comprised that land and a post World War II house and its allotment that fronted The Crescent.

29 . Various zonings for the land fronting Pennant Hills Road had been considered by council in 2002 including a Residential zone for single detached houses and a higher density zoning for a four-storey medical centre and flats above. It had also considered retention of a prior Special Uses A zone that allowed uses such as bus stations, schools, entertainment facilities, places of public worship, public buildings, clubs and recreation facilities amongst others. Council had also considered a Business zoning that would permit bulky goods retailing, offices, hotels, motels, restaurants, amongst others. Industrial zoning and open space zoning were also considered.

30 . In the end it appeared that considerable weight was given by council to the site being within The Crescent conservation area and being on a prominent corner, which meant that any development on the site would be highly visible at the entry to the conservation area. Approaching from the north the curves in Pennant Hills Road and the obtuse corner intersection made with The Crescent meant drivers and passengers saw the site from quite a distance away. It was decided in effect that the entry to the conservation area needed a development that was compatible with the heritage items and the conservation area. Low density residential was again considered by the council but ultimately the Residential B Medium Density Zone under the Hornsby Shire Local Environment Plan was applied which would encourage redevelopment of the land.

31 . In doing this the council was aware a two-storey townhouse-style development would be permissible with consent but subject to the Medium Density Multi-unit Housing Development Control Plan and the Heritage Development Control Plan . This gave an expectation that a suitable outcome could be achieved.

32 . This brings the Court to the current proposal. Apart from the other matters of detail design that were causing the series of amended plans to come before the Court during the hearing; the parties remained far apart on the success or failure of the proposal to provide a design that acted as an appropriate solution in a heritage conservation area, and also provided an appropriate relationship to the heritage items, and acted as a suitable gateway or entry point to the conservation area.

33 . Mr Logan's and Mr Patch's evidence was crucial in this matter. Mr Logan noted,
"Except for No. 17 The Crescent at the other end of the conservation area all of the buildings except for No. 5 and the heritage items were single-storey bungalows with a dominant roof form. Brickwork, although used as the raw materials was not dominant and often recessive due to the verandas and the eaves and the sunhoods over windows."


He and Mr Patch were in agreement that this characterised the Queen Anne and the Grand Federation bungalow styles.

34 . Mr Logan believed that together with the alterations to the landscaping and fences that he had recommended the proposal could be made acceptable by amending units 1 to 4 to a design where the roof was dominant and could contain a second storey as rooms in the roof.

35 . This would reduce the two storey high brick walls and the higher central gable features down to one-storey brickwork and bring that building which was the one seen on the approaches along Pennant Hills Road into a sympathetic design which would be in scale with the heritage items and form a suitable introduction to the conservation area.

36 . Mr Logan said the other buildings on the site could remain as proposed. They were perceived as either behind units 1 to 4 and partially hidden, or as being on the Pennant Hills Road frontage.

37 . Mr Patch said the site was on the periphery of the conservation area and buildings on the site competed with the latter day commercial buildings along Pennant Hills Road on the approaches to the site, especially the video store on the corner and the overbridge. That location justified a strident building statement, he said, whilst containing materials and details of design characteristic of the conservation area to form a transition from Pennant Hills Road to The Crescent.

38 . He thought the front setback, the picket fence and the landscaping would also add links to the character of the conservation area and heritage items. Mr Patch said the site read in The Crescent streetscape with the nursing home rather than the heritage items. The nursing home was a contributory item not a heritage item. The second storey roof of units 1 to 4 was below the ridge of the nursing home roof partly because the nursing home was a little uphill and also because the nursing home had such a high roof. This height enabled the proposal and the nursing home to relate, he said.

39 . Mr Patch said the rest of the conservation area was hidden by vegetation from view as seen from Pennant Hills Road, only the roof of No. 4 being readily visible. The other homes were behind vegetation or over the curve of the hill as The Crescent rose up the slope.

40 . Given these two opinions the Court looked at the evidence on the heritage significance of the conservation area and the items. The Official Description and the Statement of Significance for the conservation area are,

" Grouping of early 20th century houses including Grand Federation designs, the highly individual Barncleuth and more modest homes interspersed between." The significance of the area was, "Outstanding grouping of Federation houses set in attractive grounds. One of the best period streetscapes in the shire.”


It was rated as local significance. Mr Logan noted that although the nursing home was originally a late Federation or inter World War building, it retained the character of dominant roof and recessive single storey brickwork that characterised the area.

41 . The Court has concluded the evidence was that the map of the conservation area came out of The Crescent, included the subject site, onto Pennant Hills Road and included the heritage house Doonbar that actually fronted Railway Parade. This configuration of the conservation area must have work to do by tying Doonbar into the context of the conservation area, and utilising the site of the proposed development as a link for that purpose and, due to its prominent position, to form the gateway or entry point to the conservation area.

42 . The council's indication in the issues that the proposal should be of a form that could be considered a contributory item to the conservation area was appropriate. In re-zoning the site the council kept the site within the conservation area and knew the controls of the Heritage Development Control Plan would apply. The development control plan in part recites, "Where a new building is proposed in the street which is predominantly single storey the proposal should also be single storey." In part elsewhere it quotes, "The development control plan seeks to promote designs that compliment the existing character and amenity of the area and the heritage significance of the heritage items or conservation area." Again, "Building bulk and large areas of brick should be avoided or reduced where possible."

43 . The redesign of units 1 to 4 as suggested by the respondent's evidence would recognise the presence of the conservation area to passers-by on the main road by the change of scale and landscaping and the roof form suggested that would be similar to the nursing home's contributory item, and No. 4, the first heritage item up the street. The passers-by and persons entering The Crescent would become aware much earlier that they were entering a special precinct rather than it becoming apparent only as one approached No. 3 and 4, the first two heritage items from Pennant Hills Road.

44 . One can appreciate that if one ignores the existence of the conservation area, and the site being within it, there would be much more scope to accept Mr Patch's point of view and relate the site more to the buildings in Pennant Hills Road than to the conservation area. But the Court cannot ignore the facts arising in evidence and an appropriate application of the relevant controls. The respondent's submission and Mr Logan's evidence of the necessary design changes to units 1 to 4 do not seem unreasonable. They would still be two-storey townhouses and an appropriate design may yield the same accommodation or perhaps two of them could become the disability access units that are now single bedroom. Those matters are up to the parties.

45 . The Court has concluded the importance of the conservation area and the heritage items it contains requires a better solution than this application in respect of units 1 to 4 and, since no alternative was offered, amongst all the other changes during the hearing, that matter remains unacceptable and is determinative.

46 . Therefore the orders of the Court are:
(1) The appeal is dismissed.
(2) The exhibits are returned to the parties except Exhibits H, N, P, Q and 7, 11 and 15.
_______________________
K G Hoffman
Commissioner of the Court
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