Suters Architects Pty Ltd v Hornsby Shire Council - [2007] NSWLEC 726

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Suters Architects Pty Ltd v Hornsby Shire Council [2007] NSWLEC 726

PARTIES:
APPLICANT
Suters Architects Pty Ltd
RESPONDENT
Hornsby Shire Council

FILE NUMBER(S): 10334 of 2007

CORAM: Hoffman C

KEY ISSUES: Development Application :- 9-storey mixed use development comprising of 38 multi-unit dwellings, carparking, vehicular access masterplan for Hornsby, site amalgamation, deep soil planting area, privacy of units, solar access of units, provision for views.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994
Sydney Regional Environmental Plan No. 20
State Environmental Planning Policy No. 55
State Environmental Planning Policy No. 65

DATES OF HEARING: 10/09/2007, 11/09/2007 & 12/09/2007

DATE OF JUDGMENT:
2 November 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr I. Hemmings, barrister
Instructed by Ms P. Murray
of Minter Ellison
RESPONDENT
Mr P. Jackson, solicitor
of Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

2 November 2007

10334 of 2007 Suters Architects Pty Ltd v Hornsby Shire Council
JUDGMENT

1 Commissioner: This is a Class 1 Appeal No. 10334 of 2007 between Suters Architects Pty Ltd and Hornsby Shire Council in regard to the refusal of DA No.2233/04 on 9 April 2006 for the demolition of an existing building and the construction of a new 9-storey mixed use development comprising 38 multi-unit dwellings on the upper levels, commercial floorspace and commercial carparking on the ground level, and resident parking on a single basement level.

The Site and Locality

2 The site comprises 6 allotments being Lots 1 to 5 in Deposited Plan 136133 and Lot 1 in Deposited Plan 136112 known as Nos. 93-103 Pacific Highway, Hornsby.

3 The site has an area of 1525 sq m and is located on the north-western corner of the intersection of the Pacific Highway, Pretoria Parade and College Crescent. The site has an average grade of 5% down to the south-western corner of the site. It is roughly square in shape.

4 The site has a frontage to the Pacific Highway of 36m and a frontage to Pretoria Parade of 34.5m. The site is on a prominent right angle bend of the highway. The site was vacant at the time of the Hearing. One block north along the Pacific highway is the very large Westfield regional shopping centre, and on the railway opposite that is Hornsby Station.

5 The site is on the north-west corner of the intersection. On the south –west is the Hornsby Baptist Church and 2-storey church hall with a ground floor area used for voluntary child day-care. The church fronts College Cres, the hall fronts Pretoria, and the narrow yard to Pretoria is used for a sand pit for the day-care. At the west end of the hall is the church carpark and it extends to the railway boundary. The carpark is accessed off Pretoria nearly opposite the west boundary of the site.

6 Pretoria continues westward past the site across the frontage of a Kennard’s storage facility that adjoins the site and actually wraps around it on the northern boundary in an “L” shape to the Pacific Highway. The Kennard building used to be a large furniture showroom and has arched facades to the street with 1960-70 style solar breeze block parapets.

7 On the west side of Kennard’s, between it and the Great Northern Railway is a wide drive entry, landscaping and an elevated pedestrian footway giving access to a large 1980’s development of apartments that back onto the railway and come through to the highway. The drive is owned by Strata Plan 51938 a multi-storey block of flats at No.107 Pacific Highway. The drive is called Wanderers Way and also provides a right-of-way for access to other blocks of flats further north between the railway and the highway. It does not provide rear access to Kennards or the commercial sites fronting the highway. The subject site has no frontage to Wanderers Way.

The Proposal

8 The proposal has in the 9-storey mixed-use development 8 levels of residential units including 23 x 2 bedroom units and 15 x 1 bedroom units (a total of 38 units).

9 Vehicle access to the basement parking is proposed via Pretoria Parade with a drive entry beside the west boundary adjoining the Kennard’s building. A total of 53 parking spaces are to be provided in the Basement Car Park. Pedestrian access to the residential component of the site is proposed via Pretoria Parade and from the Pacific Highway for the commercial component that has the colonnade walk and a 4m wide landscape strip setback from the public footpath.

10 The proposed building has a floor space ratio of 2.18:1 and a maximum height of 28m from the existing ground level. The building includes the following elements:

A colonnade structure along both frontages of the site, and
Above it a 3-storey podium set 4m from the highway boundary and 2.8 – 8m variable to Pretoria.
Above the podium the balconies on levels 4-8 are set back 8.5 metres from the Pacific Highway property boundary and 3.8m to 6m from Pretoria.
The wall line is 10m from the Pacific Highway and 2.8 – 8 m from Pretoria.
There are cantilevered communal open space balconies on Levels 1 and 3 at the corner of the Highway and Pretoria Parade that go to zero setback on the highway boundary.

11 The plan of the building tower above the podium is “L” shaped by virtue of the units fronting Pacific Highway and Pretoria, leaving a communal courtyard in the north-west corner of the site. The courtyard has an area about one quarter of the site but it is at the first floor level on the roof of the ground floor commercial carpark.

12 A continuous full height blade wall runs north-south through the building. The blade wall starts about halfway along the Pretoria façade and its verticality accentuates the residents foyer entry and the corner of the highway. The blade runs through the building and emerges above the communal courtyard as the western façade of the units that front the Pacific Highway. As seen from the communal courtyard the blade wall is more like a huge portal 8-storeys high, and in the opening there are tensile columns hanging down to support suspended pedestrian catwalk corridors on levels 2-8. From the catwalks there are short “bridges” to the front door of each unit that overlooks the highway.

13 There is only one unit on each floor that overlooks Pretoria at the west end of the building. Their front doors are adjacent the lift and stair core at each level above the residents entry foyer.

14 To protect against western sun the huge opening of the blade wall portal above the communal courtyard has movable shade louvres that are in panels on the outside of the catwalk corridors. The applicant says the occupant of each unit opposite their set of louvre panels will be able to tilt-adjust them to suit sun/shade/view.

15 The balconies of all units on levels 4-8 have similar louvre panels on southern, eastern and western elevations. As well has having louvres that tilt, each panel on the balconies also slide horizontally so they can be “stacked’ whenever the occupant wants a clear unobstructed view.

16 Apart from the communal courtyard on level 1, there are several other communal open spaces.

On level 1 there is a large cantilevered balcony right above the Pacific Highway corner with Pretoria. It is accessed by an open walkway along the south elevation past the kitchen, dining, Living and private courtyard of the corner unit of Level 1.
On level 3 there is another large cantilevered balcony right above the Pacific Highway corner with Pretoria and College. It is accessed by an open common walkway on the Pretoria south elevation from the lift lobby past the kitchen, dining, Living and private court of the Level 3 corner unit, and
The same balcony is accessed by another common open walkway on Level 3 along the Pacific Highway east elevation. This eastern walkway passes in front of the private terraces, bedrooms and living rooms of the four units facing the highway.
On level 8 there is a communal roof-top terrace that will have panoramic views to the south, west and north-west to the Blue Mountains. It is on the roof of the single unit on level 7 west of the lift lobby.

17 The composition of the development, level by level, is as follows:

Basement Level 1 - contains 41 car spaces, lift access, bicycle parking, service and plant rooms, and 18 storage units of 2 to 3sqm;
Ground Floor Level - contains 12 car spaces 220m2 of business/office floorspace divided into three tenancies, waste collection area, an open colonnade is proposed along both frontages;
Level 1 - contains 3 x 2 bedroom units and 2 x 1 bedroom units, and areas of common open space, the largest area being concentrated in the north western corner of the site;
Level 2 - contains 3 x 2 bedroom units and 2 x 1 bedroom units;
Level 3 - contains 3 x 2 bedroom units and 2 x 1 bedroom units. An area of communal open space at the top of the podium structure is located along the Pacific Highway frontage;
Levels 4 through 7 in the main tower component of the building contain 3 x 2 bedroom units and 2 x 1 bedroom units; and
Level 8 - contain 2 x 2 bedroom units and 1 x 1 bedroom unit and a common outdoor open space area.
Roof - plant.

1 Environmental Planning Instruments

Hornsby Shire Local Environmental Plan 1994: Residential D (High Density) Zone
Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River
State Environmental Planning Policy No, 55 - Remediation of Land
State Environmental Planning Policy No, 65 - Design Quality of Residential Flat Development

2 Development Control Plans

High Density Multi-Unit Housing Development Control Plan
Hornsby Town Centre Development Control Plan
Car Parking Development Control Plan
Access and Mobility Development Control Plan
Heritage Development Control Plan
Sustainable Water Development Control Plan
Waste Minimisation and Management Development Control Plan

3 Other Statutory Instruments, Adopted Codes or Policy Documents

Residential Flat Design Code, 2002. NSW Planning Department
Draft Hornsby LEP Amendment (Amendment No. 78) - This amendment was gazetted on 18Th August 2006, but is considered a draft for the purpose of the DA assessment by virtue of Clause 6(6) of the Hornsby Shire LEP 1994
Development Contributions Plan 2004-2010

This revised summary of contentions arises from the preliminary section 34 conference of 15 June 2007.

Part A – Site Amalgamation

been made

and

PART B - SUMMARY OF DESIGN MATTERS

1 Floor Space Ratio

2 Deep Soil Planting

3 Common open area and common walkway

The proposed common open area at Level 1 has poor amenity and creates privacy conflicts with Unit 4. There are security and privacy issues associated with the communal walkway near Unit 1, 2, 3 and 4 and in a similar manner for the units repeated above in the arrangement for the external common walkway.

4 Solar Access

5 Privacy and Safety

The external common walkway allows overlooking to the living area of Unit 1-4 creating unacceptable Impacts on visual privacy. There are similar major visual privacy issues associated with the common walkway access for all of the upper level units.

6 Appearance

7 Unit Layout

18 The respondent’s evidence came from:

Mr R. N. Dickson, architect, town planner, Visiting Professor in Urban Design at UNSW.
Ms D. Krzeminski, senior town planner for the council
Mr M. Macheledt, objector on behalf of Kennards.
Mr D. Timms, objector on behalf of Hornsby Baptist Church.
Mssrs R. Drew and Vickery, objectors on behalf of Strata Plan SP51938 of No.107 Pacific Highway, Hornsby.

19 The applicant’s evidence came from:

Mr M. W. Harrison, architect, town planner
Mr L. Hunt, town planner.
Mr J Wotton, valuer

20 Mr Machekedt said that the council’s masterplan for Hornsby appeared to show Kennards and the subject site developed for residential flats with all vehicular access off Wanderers Way. The only option if not redeveloped at the same time would be for the subject site to obtain a Right of Way (ROW) through Kennards to the subject site off a theoretical public street where Wanderers Way exists.

21 The applicant had approached Kennards about obtaining a ROW, but not via a joint venture or purchase of the Kennard property. In any case the approach was rebuffed as Kennards had informed the applicant there is no intention to sell the business or the site, and it was trading well. Also there were no details of how any ROW might be built. Looking at the ground levels it would have to be a tunnel under Kennards building and therefore quite unacceptable. There would be no grant of ROW.

22 Mr Timms said one concern is about entrance/exit to the church carpark. A council condition appeared to want a median strip to extend from the highway west on Pretoria past the subject site and the church carpark entry. The church has 300 parishioners on Sundays, and other activities including pre-school during the week. The median would prevent right turns out of the carpark, and right turns into it. This would force drivers wanting to exit eastwards to have to drive west and do a U-turn; worse would be drivers coming from the quiet residential areas west of the carpark……..they would have to go onto the highway and make a U-turn somewhere to come back westwards on Pretoria and turn left for entry.

23 Another concern is shadows from the building. Drawings he had seen did not show the shadow of the highrise across Pretoria. Obviously it would shade the church hall windows used for the pre-school including the Pretoria yard sandpit. The morning period 10am-noon weekdays is the time the playschool would be shaded.

24 I noted the sandpit has a shade-cloth over it.

25 Mssrs Drew and Vickery brought attention to the suspended pedestrian walkway that starts at the Pretoria street frontage of SP51938 and rises up to the podium level of the apartments adjoining the north-west corner of Kennards. The walkway is part of No.107 pacific Highway, and is built to disable access gradients and cannot be made steeper or have steps. They said even if the Kennard building was demolished, any access to Kennards off their Wanderers Way would not get vehicle head-clearance under the walkway without excavation. Any excavation would affect their driveway gradients and the Body Corporate would not agree to that.

26 Energy Australia is looking for a sub-station site and had approached the apartments about using the landscaped area on their land adjoining Kennards near the Pretoria frontage. That location is good because all the apartments’ power and other services come through there too, and are underground. Any excavation for vehicle access to or across Kennards would dig into those existing services and may affect the sub-station site too. The Body Corporate would not agree to compromise its utility services or the substation site.

27 Another consideration is the increased traffic on Wanderers Way especially during construction, and then after development. The Body Corporate is conscious of the existing traffic volume, and the maintenance costs of the Wanderers Way now. The inconvenience during construction, the traffic manoeuvring arrangements during and after construction, the potential for ongoing costs due to unknown changes to the utility services, and the additional costs of insurance and maintenance of the carriageway and other components of Wanderers Way are all matters that make the Body Corporate unwilling to consider any change of the existing status.

28 The consideration of purchase cost of any ROW over and above construction and maintenance costs is futile as a result.

29 On amalgamation the evidence in Exhibit P shows the owner’s valuations for possible purchase of Kennards is not feasible due to the value of the land and business “as is” being much more than the value of “land content only” that would make any apartment complex viable financially. Thus the approach only to Kennards for a ROW.

30 On the simple reading of the council’s amalgamation requirements, the subject site comprises six (6) separate lots each with theoretical individual development rights. The proposal amalgamates them, so the requirement is fulfilled. When Kennards develop, they have 4 lots under their building so those will be amalgamated too.

31 In the light of SP51938 unwillingness to contemplate any access via Wanderers Way to either Kennards or the subject site, and the technical difficulties involved, the council masterplan for access over two (2) private properties is unrealistic………..although a good planning idea. The council may have to acquire part of Wanderers Way as a public road to bring it to fruition even for Kennards alone.

32 Should that happen the applicant has designed its basement wall adjoining Kennards with a “knock-out panel” to enable access if required in the future.

33 The applicant’s alternative vehicle access is feasible on the evidence that the RTA would accept a drive entry at the western side of the subject property off Pretoria; and that the RTA would accept the median strip ending in a position to allow the church carpark to retain its current access turning movements. The subject site would be a relatively low traffic generator, and the median extension only needs to be long enough to prevent turning movements across the centreline in proximity to the highway traffic lights.

34 Perhaps the strongest evidence is the Hornsby Shire LEP cl 14(4A). Its site consolidation requirement applies to 9 parcels of lots in Schedule BA Diagram 1. That diagram does not include the subject land or Kennards. As a result the requirement for amalgamation is not via statute, it is via control plan.

35 The origin of the council’s want for consolidation arises from its masterplan in the Hornsby Town Centre Development Control Plan adopted 2006. It shows on p.13 a concept plan that shows on the subject site and Kennards, a “U” shaped development of high density residential flats. The “U” is created by the building(s) fronting the highway, Pretoria and Wanderers Way with a central communal open space facing north.

36 The apartments north of the site (No. 107 etc) are shown as existing on the masterplan, but other parts of the masterplan are inconsistent with recent developments. The most noticeable is the huge new Westfield centre one city block north. On the masterplan adopted in 2006, it is a huge carpark with the main large retail centre north of that. It seems the masterplan is not adhered to by council.

37 The town centre in the Part 1- Preamble is said to be in 3 precincts, but the subject site and vicinity are not in those three. It is a separate area called the Pound Road Precinct that has the Pacific Highway on its north and east boundaries, and the Great Northern Railway and Pretoria Pde on its west and south boundaries respectively.

38 The corner of the highway at Pretoria is a “gateway” to the town centre. Buildings adjacent a gateway should incorporate landmark features including a tower, or other vertical element or emphasis in the design, and should form a pair with another building for a perception of a gateway in the highway leading to the town centre.

39 Below I reproduce the perspective of the proposal seen from the south east:

40 The proposal being 9-storeys is a “tower” with a vertical fin wall feature of high visibility, plus prominent cantilevered balconies on the corner, and substantial articulation in the facade. I agree with the evidence of Mr Harrison and Mr Hunt and Mr Dickson that the proposal would have an acceptable “gateway” character.

41 I agree also that one corner having a church, another having Barker College and the 4th quadrant of the Pacific Highway corner being zoned “Industrial B”, it is not possible now, and most unlikely in the future that a “pair” can be formed…………although it is a good planning idea. The ideal corner to form a “gateway pair” to the town centre is the 4th quadrant Industrial B zone. Any industrial building is unlikely to have much similarity to a residential flat building opposite.

42 Another way of looking at the same “gateway” occurs in the Hornsby Shire High Density Multi-Unit Housing DCP adopted in 1998. It has the controls for the Pound Road Precinct. It shows a perspective sketch concept of the actual site and Kennards.

43 The sketch shows few of the ‘gateway” features on the buildings. It has a 9-storey rectangular building on the highway frontage with no corner feature of a turret or rotunda. It has a 3-storey podium above ground level setback 4m with a colonnade to the street. The upper 6-storeys are setback “14m variable” from the street accordingly to the cross-section sketch. But the building, apart from being 9-storey has no corner feature or “vertical element or emphasis in the design” such as the proposal has. One could say in current architectural terms the subject design improves on the 1998 concept in that regard.

44 Another inconsistency in the Pound Road DCP is that the text asks for a 10m setback from the highway above level 2. The cross-section sketch in the DCP shows the podium to be 4m setback from the street. Above it the upper floors are setback “10m variable” from the podium edge, making a 14m variable setback to the highway. The respondent presses only the 10m and the 4m both measured from the highway.

45 The text also asks for “a podium to match existing developments along the Pacific highway frontage”. The Kennards building has colonnade setback almost 4m from the highway and the proposal is the full 4m to the colonnade. But, the basement carpark beneath comes out to the highway boundary meaning the respondent says that any trees planted in the 4m will not be in deep soil.

46 Another aspect is the proposal does have a 3-storey podium whereas Kennards is 2-storey so the new podium does not match the existing podium in height. Mssrs Harrison and Hunt and Dickson say this should be read to match new development as it would be, if Kennards does redevelop, because the apartments at No.107 do have a 3-storey podium.

47 Of some relevance to the considerations is the rest of the sketch that shows another 9-storey building on the Wanderers Way frontage and between the two on the Pretoria frontage a 3-storey building as a continuation of the podium that connects the two 9-storey buildings. The sketch also shows a corner of a “paired building” in the Industrial Zone east of the site. The appearance of the building is apartment like. This is another apparent inconsistency with the industrial zone.

48 It incorporates a “blow up” of the masterplan from the town centre DCP showing the Pound Road properties with annotations. Below is a reproduction of the “blow up”.

49 Another inconsistency is Map A: Hornsby Town Centre Masterplan on page 8 of the High Density Multi-Unit Housing DCP. It shows the Pound Road Precinct and the subject site and Kennards with a different building layout to that in the “blow up”. There are many differences in the overall masterplan adopted in 1998 in this DCP compared to the other one referred to previously that was adopted in 2006.

50 The respondent did not press the 1998 masterplan but did press the ‘blow up”. Its annotations and relevant other parts of the High Density Multi-Unit Housing DCP asks for:

1. the amalgamation of the Kennard and subject site.
2. no vehicle access from the highway
3. the setbacks to the highway previously described
4. street tree planting along the highway, with trees on-site in the 4m setback that would grow to podium height, and matching trees in the footpath to form a double row. Species preferred are Blue Gum High Forest. (The plan shows trees in Pretoria too, but that is not reflected in the text).
5. Pedestrian and vehicle and cycle access along Wanderers Way.
6. Provide a landscaped podium level with carparking on lower levels to create acoustic buffer and visual screen of the railway.
7. Enable views to the south and west and east.
8. A colonnade along the highway frontage at ground level and set 4m back.
9. A 10m setback to the highway above level 2 (when the cross-section sketch on p.61 shows 14m variable setback above level 3).
10. Corner treatment considerations such as: how the building addresses neighbours, the dual frontage and “turning the corner”. Stepping up at the corner and having greater height than neighbours. Features i.e. stepped parapet, pediments, turrets, rotundas, towers, flag poles, clocks etc. A splayed, convex, concave or square recess at the corner to give form to the intersection and more circulation space for pedestrians.

51 The proposal appeared to comply with all of these except for 1and 5, and in Mr Dickson’s view item 7, regarding views to the west and part of item 10 in how the building addresses its future northern neighbour if Kennards is redeveloped, and the disable access from colonnade to footpath at the change in levels at the corner.

52 The applicant had stairs and a disable switchback ramp out at the southern boundary in the design. Exhibit R provided an amended design that moved the ramp in from the footpath to give it rain shelter from the south, and less visibility from the street, plus more planting on the apex of the corner, and a graded pedestrian walk from Pretoria up to the colonnade at highway footpath level.

53 Exhibit V also moved the north wall of the highway building up flush with the Kennard boundary so that if they redeveloped, any 9-storey block of flats could directly abut the subject building.

54 A number of other changes addressed other concerns of Mr Dickson.

The 4m setback area has been made 2m deep soil and the boundary retaining wall cut down 2m below footpath level so there is exposure of the setback soil to natural sub-surface soil. The tree species are changed to Blue Gum High Forest species that grow to above podium height, although not to 30m as submitted as a request by the respondent (contrary to the DCP requirement for podium height trees). I noted that the apartment development at No.107 Pacific highway had NO trees in its front setback, and the street trees the council has in the footpath are not Blue Gum High Forest species. This is another inconsistency of council with its own DCP’s.
The original communal balcony on Level 1 becomes private to the corner unit to avoid the privacy issues previously described.
The original communal balcony on Level 3 becomes private to the corner unit to avoid privacy issues previously described.
The communal walkway on the east elevation of Level 3 is also deleted and each section of it incorporated into the private balcony of the adjoining unit to avoid the privacy issues previously described.
The western louvre panels shown to be operable so that they can be adjusted for control of western sun, or to provide western views.

55 This does not overcome what Mr Dickson calls a basic design fault in that living rooms are recessed behind balconies and therefore do not get the required 2 hours of sun mid-winter, to one third of the glass area of living room windows. He says the living rooms should be forward where the bedrooms are located and then ample sunlight would get to all units.

56 He calculates that in original design only 34% of units get 2 hours sun to living room windows although he believes that 3 hours is the applicable requirement.

57 Mr Harrison said in high-density areas under SEPP 65 Design Code, 2 hours sun midwinter to 70% of units is applicable. He noted that the balconies are 4m square or larger, and are designed in the current fashion as “loggia”.

58 The Oxford dictionary describes it as: A gallery or arcade having one or more of its sides open to the air…….laying the house open to the north, contrived in Italy for gathering cool air.

59 The design has large sliding doors from living rooms onto the loggia of each unit, and each is fully under a roof. At the outside edge of each loggia are the sliding and tilting louvre panels previously described. As a result, Mr Harrison saw the loggia as an extension of the living area. In which case he said 100% of units get 2 hours sun midwinter, and most get 3 hours at least.

60 Overnight Mr Dickson re-calculated on the basis of moving the living room sliding glass doors out 2m into each loggia. With the large sliding doors, it meant if the loggia had suitable weather for use, the floor-space would be the same, and if the weather is inclement, there would be more space inside, and there would be more winter sun on the living room windows.

61 The re-calculation showed 76.3% of units would get 2 hours sun and 36.8% would get 3 hours sun midwinter.

62 Mr Dickson agreed that the north-south axis of the building, as required by the “blow-up” plan of the High Density Multi-Unit DCP, made it difficult to get solar access. He maintained that this area cannot be classified as a “high density area” under SEPP 65 and the 3 hour solar access requirement should apply.

63 He agreed that the loggia concept works more as an extension of a living room than a balcony does. He was not sure if this proposal would work that way because he had no details of the sliding louvre panels to know if they had adjustable tilt or horizontal slide to control sun and amenity. He was told they do tilt and slide. This is shown on the amended plans in Exhibit V. He said the glass sliding doors should still come forward 2m into each loggia.

64 Mr Harrison said this must be a high density area under SEPP 65 and the 2 hours solar access apply. It is next to multi-storey high density apartment buildings in the same zone and the same Pound Road Precinct that is shown as contiguous with and part of the Hornsby Town Centre DCP. It is designated Floor Space Ratio 4:1 in the zone, and although this development does not reach that floor space ratio, it is high density.

65 Also he thought Mr Dickson is conservative in using one third of the glass area to qualify as 2 hours or 3 hours solar access. Using that for calculation meant the proposal must provide substantial sunlight to the interior of units and almost the whole of each loggia. That must be seen as excellent solar access Mr Harrison said. To obtain that level of sunlight midwinter on a building required by the DCP to have a north-south axis is good design, he said. If the glass sliding doors are not moved he calculated 100% of loggia get 2 hours or more sun midwinter, and 53% of units get 2 hours or more sun to living rooms.

66 This is supported by the fact that the controls only require the sunlight to neighbours to be retained at 2 hours to private open space and 3 hours to north facing living room windows. The Hornsby DCP does not specify an area or percentage of floor or windows that must receive the sunlight for 2 or 3 hours, so even a sliver of sun can be argued to satisfy the requirement.

67 Mr Harrison agreed that the Pacific Highway noise would reduce the times of use of the loggiae. It seems to me that apart from improved internal solar access, the extra room inside by moving the glass sliding doors makes sense.

68 Mr Dickson agreed the design would be a strong corner feature as a total building even though it did not have turrets, rotundas or the like. He felt it needed trees down Pretoria Pde, even though the High Density Multi-Unit DCP on p.20 did not show trees on the north side. He said this is another inconsistency in the councils controls, because the “blow up” plan and the sketches did show trees in Pretoria on the north side in the Town Centre DCP and on p.23 it showed secondary street tree planting.

69 Mr Dickson had the opinion the 10m setback to the highway above the podium level should apply even though the DCP cross-section said 10m variable. Mr Harrison said it was only the balcony-loggia projections that came forward of 10m to 8.5m and they comprised only 7% of the highway façade. It gave articulation to the façade, and is de minimus as a compliance issue.

70 Mr Harrison had the opinion the corner gateway statement of the building would be improved, if the two cantilevered balconies on level 1 & 3 (that were once communal and now are private), are cut back to align with the blade column at the south-east corner of the building. This would give them about a 2.6m setback to the highway boundary and unify the corner form of the building. The cantilevers come out too far he believes.

71 On deep soil landscaping the High Density Multi-Unit DCP requires 50% of the site landscaped and Mr Harrison said the proposal had 53%. Of that only 25%-30% has to be deep soil and the 4m highway setback is 133.5 sq m. The 25%-30% calculation is 95-137 sq m based on the site area so the proposal complies. The DCP only requires the deep soil area to be to the natural ground profile and does not say “no structures beneath”. There is 2m depth of soil and even for massive fig trees 1.5 m depth is enough. The communal open space at level 1 on the north-west quarter of the site is also 1.5m deep soil that can sustain substantial trees and would connect with the northern open space shown on the ‘blow up” plan in any future development of the Kennard site.

72 The layout of the proposal fits with the councils DCP masterplan so that its long term achievement, except perhaps for access from Wanderers Way can be achieved. The applicant is open to provision for even that.

73 Mr Dickson said that the “blow up” masterplan was wrong in its depiction of the location of the buildings on No.107, and that may effect where buildings on Kennards can be built. But overall the concept plan would remain achievable. The consensus of the form on the subject and Kennard site shown beneath “9” on the blow up plan (the “9” showing the maximum storey height) is that the form is a landscape feature, as any 9-storey building there would compromise the solar access and the communal open space of the “U” shaped layout of buildings.

74 The last two matters of concern to Mr Dickson is privacy of units from the suspended catwalk access corridors, and preservation of views to the west. Due to the catwalks being 4m out from the west wall of the highway units, a person on a catwalk can look across or down into the dining/living rooms of the units.

75 Mr Harrison said any future development of the Kennard site to complete the “U” shaped layout of buildings must block any west view from the proposal. In the meantime, the western louvre panels can be adjusted for views or to stop the hot western sun.

76 In regard to privacy, he said the main windows of the living rooms are to the east and the south where the views are from those units. The west and north windows are really only light sources. The units occupants can protect privacy from the catwalks on the west with curtains, but many may choose to see and be seen by their neighbours in a friendly amenity, much as mutual overlooking occurs in detached housing.

77 Ms Krezeminski and Mr Hunt gave evidence. The evidence showed there had been many changes to councils statutes and controls over the last 10 years. Pound Road Precinct had once been commercial zone. All the changes are not very relevant to this case because I must deal with it as the instruments and controls are today. The obvious lack of co-ordination amongst the council’s statutes and control plans during these changes is regrettable, and makes it difficult for an applicant and the Court to see the council’s intentions clearly.

78 On solar access, perhaps the most hotly contested matter, the council’s controls only set times for solar access to neighbours of any development. The argument over on-site solar access arises out of the SEPP 65 Design code. In my opinion the site is a “dense urban area” and the 2 hour solar requirement applies. I have adopted Mr Dickson’s suggestion for moving the east apartment glass sliding doors 2 m into the courtyard/loggiae to get 76% units with 2 hours sun. This is good design, and will increase interior space whilst not reducing courtyard/loggia space when the sliding doors are open.

79 I note another conflict in the council’s DCP’s. In requirements for solar access-in both DCP’s recommend an east-west axis for buildings to give direct north exposure to the most units. The “blow up” plan shows the subject site and Kennards having its main buildings with a north-south axis.

80 Mr Wotton gave evidence on Ms Krzeminski’s criticism of his valuation of Kennard’s for purchase. His valuation was on the typical market value per storage unit calculated on the estimated number of storage units on Kennards, plus land. He got a value of about $8.7 million.

81 The typical Hornsby land content only value per residential flat unit multiplied by the potential number of units on Kennards gave a purchase value far below that figure and showed purchase of Kennards as not feasible. He had not looked at retaining the storage business on Kennards and building flats above. He said a development of that kind would be fraught with so many problems getting development consent and marketing the units it could not be given an estimate. He had not considered any costs for purchase of access from No. 107.

82 Although this evidence gave reasons why finance is a major obstacle to any purchase of Kennards, plus physical obstacles to any use of No. 107’s driveway, there seems little point in council’s demands for amalgamation when the two owners involved are not interested in negotiation, and there is no statutory requirement to do so, and the subject site does amalgamate 6 lots. The time for council to do it was at the time of granting consent to No. 107 when it may have been possible to require the granting of access. The most appropriate way to deal with it now, is to put a provision in this consent to facilitate access via Wanderers Way if it ever arises in the future. The respondent proposed such a condition.

83 I agree with Mr Harrison’s recommendation of setting back the cantilevered balconies on levels 1 & 3 for the reasons he gave.

84 I agree with Mr Dickson on street trees in Pretoria Parade and include a condition to that effect.

85 The deferred commencement conditions are imposed as council requests in order to ensure pre-construction certificate matters therein are attended to with council’s satisfaction.

86 Overall I find no reason sufficient to refuse the proposal as now modified and with appropriate conditions.

87 The Orders of the Court are:

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Suters Architects Pty Ltd v Hornsby Shire Council [2007] NSWLEC 726

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CITATION:	Suters Architects Pty Ltd v Hornsby Shire Council [2007] NSWLEC 726
PARTIES:	APPLICANT Suters Architects Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10334 of 2007
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- 9-storey mixed use development comprising of 38 multi-unit dwellings, carparking, vehicular access masterplan for Hornsby, site amalgamation, deep soil planting area, privacy of units, solar access of units, provision for views.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 Sydney Regional Environmental Plan No. 20 State Environmental Planning Policy No. 55 State Environmental Planning Policy No. 65
DATES OF HEARING:	10/09/2007, 11/09/2007 & 12/09/2007
DATE OF JUDGMENT:	2 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings, barrister Instructed by Ms P. Murray of Minter Ellison RESPONDENT Mr P. Jackson, solicitor of Pike Pike & Fenwick