Tchadovitch v Hawkesbury City Council

[2004] NSWLEC 242

Land and Environment Court

of New South Wales

CITATION:

Tchadovitch V v Hawkesbury City Council [2004] NSWLEC 242

PARTIES:

APPLICANT
Tchadovitch V

RESPONDENT
Hawkesbury City Council

FILE NUMBER(S):

11373 of 2003

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Multi-unit housing - compliance with objectives - high amenity/accessibility - streetscape - impact on neighbours amenity - open space

LEGISLATION CITED:

Environmental Planning and Assessment Act
Hawkesbury Local Environmental Plan 1989

CASES CITED:

DATES OF HEARING:

30-31/03/2004

DATE OF JUDGMENT:

05/21/2004

LEGAL REPRESENTATIVES:

APPLICANT
Dr S Berveling, barrister

RESPONDENT
Mr J Reilly, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11373 of 2003

Hussey C

21 May 2004

Tachadovitch V
Applicant

v

Hawkesbury City Council
Respondent

Judgment
Background
1 . This appeal is against council’s refusal of a development application for the construction of 5 villa units at Richmond. A number of issues were initially identified, however these were reduced to the following for the hearing:

- compliance with the zone objectives,
- consistency with existing character,
- adequacy of open space,
- effect of draft amendment No. 130 of the Hawkesbury LEP.
- objections.


The site
2 . The site is described as Lot 1 DPP 805 370 and Lot 232 DP 101 9706, No 15 Drift Road, Richmond. It is generally regular in shape, with a 45.17 m frontage to the southern side of Drift Road. It has a total area of 2277.8 m2.

3 . The site is generally flat but has a slight fall of approximately 2 m from the rear boundary to the street frontage. The surrounding development comprises mainly low-density dwellings set on landscaped lots, with generous setbacks. Interspersed are some medium density dwellings.

4 . On the opposite side of the Drift Road, the land is zoned Rural 1( c ) and contains a number of large dwellings on rural/residential type lots.

The proposal
5 . This proposal is for the demolition of an existing dwelling and construction of a residential flat building (RFB) consisting of three, 3 bedroom single storey villa units and two, 3 bedroom two-storey dwellings. Each dwelling has a double garage.

6 . Access to the development is from a central driveway and visitor carparking for 2 vehicles is provided.

Planning controls
Hawkesbury Local Environmental Plan 1989 (HLEP)
7 . Under this LEP the site is zoned Residential 2(a). The erection of townhouses and villas is permitted within this zone with consent, being defined as "residential flat building Class B"

8 . Clause 9 A of HLEP 1989 states:

Before granting consent to development within a zone the Council must be of the opinion that carrying out of the development is consistent with the relevant objectives of the zone in which the development is proposed to be carried out .



9 . The objectives of the 2 (a) Residential Zone are detailed in cl 9A as follows:

(a) to provide housing and associated facilities in locations of high amenity and accessibility,
(b) to enable development purposes other than residential only if it is compatible with character of the living area and has a domestic scale and character, and
(c) to ensure that development does not create unreasonable the man's, in the present or in the future, for provision or extension of public amenities or services.

Hawkesbury Development Control Plan - Residential Development Hawkesbury Development Control Plan - Car Parking
Draft Amendment 130

10 . This draft amendment to HLEP identifies suitable areas for medium density housing and it has the effect of prohibiting this proposed development.

The evidence
11 . Detailed evidence on behalf of council was presented by:

Mr M. Adamson, consulting town planner (Exhibit 4)

12 . Various resident submissions contained in Exhibit 5 were also considered.

13 . For the applicant, detailed evidence was presented by:

• Mr G. Falson, consulting town planner (Exhibits E, G)
• Mr. J. Cheetam, consulting landscape architect (Exhibits D, H)


14 . The first issue in this matter deals with the proposals consistency with the relevant 2(a) Zone objective:

(a) to provide housing and associated facilities in locations of high amenity and accessibility.

15 . The evidence on this issue resulted in significantly different interpretations of the relevant factors which define "high amenity" and "accessibility".

16 . According to Mr Adamson, the site is located on the fringe of the Hobartville residential area. He says that:
"no services or shopping facilities exist in close proximity, or suitable walking distance to this residential subdivision. The Richmond Shopping/Services Precinct is located approximately 2 kilometres from the site. The subject site is considered a somewhat isolated residential pocket in a rural setting, and one of relatively low amenity. Access to public transport is limited. Access is therefore relied on the use of private vehicles travelling to Richmond or beyond. The proposal is not in a location of high amenity or accessibility…"


17 . Against this, Mr Falson acknowledges that the site is located on the edge of the residential township. Nevertheless he says that it has sweeping views of the flood plain and the mountains to the west and is located in an area where there is a variety of substantial housing developments that are opposite and surrounding. Therefore he concludes that the location and views from the site, together with the existing high standard of surrounding development constitutes a location of high amenity.

18 . Furthermore, he says that the site, like the residential area surrounding it, is not isolated because there is a church nearby on the corner of Castlereagh Road and Inalls Lane. Also, there is a regular bus service along this road linking the site to both Richmond and Penrith, where there are urban train services to Sydney.

19 . His evidence is that the amenity and accessibility of the site, when considered in the context of other Residential 2(a) Zones within the Hawkesbury LGA, which are constrained by flood plains, then this site does have relatively high amenity and accessibility.

20 . For my assessment of the amenity aspect, I accept Mr Reilly's submission that a reasonable starting point is to consider the existing amenity. On this basis, I am satisfied that the amenity in this immediate residential precinct is characterised by predominantly low-density housing, located on lots of about 700-800 m2, with generous boundary setbacks and significant landscaping. This creates a context of openness and building separation, which is complemented by the low-density houses on the Rural 1(c) land opposite. I also accept this precinct is enhanced by the views to the mountains and over the flood plain. Together these factors contribute to a residential precinct having high amenity.

21 . As cl 9 of the HLEP requires consistency with this objective, it seems to me that development should therefore be compatible with, or adhere to the same principles that create this high amenity.

22 . But in this case, the building form is noticeably more dense and the individual building units are located much closer together. Also the side and rear boundary setbacks are generally less than existing for neighbouring properties, although I acknowledge they comply with the minimum setback requirements. The configuration of the development requires construction of a central, paved accessway about 7 m wide, which is not characteristic of access arrangements to most of the houses in this immediate neighbourhood.

23 . Another variation to the existing residential context is that units 2, 3 and 4 appear to be substantially enclosed, which restricts opportunities to access the identified mountains and flood plain views.

24 . Therefore taking into consideration these matters, together with the other merit matters subsequently dealt with, I do not accept that this villa house development does adequately adhere to the same design principles, which contribute to this area’s high amenity.

25 . The other element of the objectives concerns accessibility. According to the evidence presented, both planners related this to the distance to the town centre, shops, schools, bus stop and railway station. Insofar as the site is some 2 km from the town centre and public transport is limited, this may not be considered as a high standard of access under some circumstances. Nevertheless it is the level of accessibility that currently exists. Considering that the HLEP does allow some forms of residential development on this site, which presumably complies with this accessibility objective, I do not consider that the subject form of development should be rejected because of poor accessibility.

26 . In conjunction with the developments consistency with the zone objectives, the complimentary DCP for Residential Development applies. Its stated aims include:

- ensure that all forms of residential development is designed to be compatible with the built environment in which they are located in terms of height, size, bulk, scale, setbacks, materials and open space;
- ensure that the building form, including alterations and additions, is sympathetic with the existing surrounding neighbourhood;
- ensure that all types of housing meet community expectations at about health, safety and amenity;
- ensure that proposed development does not detract from the amenity of adjacent resident or the quality of the environment; …


27 . It is apparent then, that the overall effect of these aims is to ensure that new development is compatible with the existing built environment. In this case the outstanding issues concern streetscape impacts, setbacks, amenity of private/community open space areas and neighbours’ concerns.

28 . Firstly, Mr Adamson says that the multi unit proposal is not consistent with the streetscape impact of other dwellings along Drift Road, because they are predominantly single storey detached dwellings, providing a general front setback of 10 m, compared to the proposed 7.5 m setback. Also, he says that no other dwellings present as multi-unit dwellings with a central driveway, incorporating a visitor carparking space in the front setback area.

29 . However in my assessment, due consideration has to be given to the LEP controls which permit satisfactory multi-unit housing in this zone. In this event, it is inevitable that there will be some change, due to the increased density character of multi-unit housing.

30 . With regard to the streetscape impact of the proposed single and two-storey dwellings, this can be mitigated to some extent by appropriate landscaping, within the front building setback. But I accept that the proposal will read more prominently in the streetscape than the existing dwellings because it has a reduced front setback of 7.5 m, as compared to the other dwellings with a general front setback of 10 m. Accordingly, I agree with Mr Adamson that the streetscape impact of the proposal is negative, when considered in the existing context of substantial landscape front setbacks, generally excluding high fencing.

31 . Another critical element concerns the side and rear setbacks. Buildings Nos 3, 4, 5 have a minimum side boundary setback of 1.4 m to the neighbouring property No. 19. Reference to the landscaping plan, shows that this area is to contain a private stepping stone foot path and minimal landscaping. This will result in significantly more built area being observed along this common boundary, which is not characteristic of the neighbourhood. In this regard, the middle unit No 4 is two-storey, and its location reduces the outlook and amenity from No. 19. Then Unit No. 3 is oriented with a variable setback to its rear boundary of 4 m – 6m, with its principal private open space area adjacent to No. 9 Victoria Avenue. In this regard, I accept Mr Adamson and the neighbours concerns that the reduced building setbacks reduce the amenity/privacy of their established, private open space areas, which includes some swimming pool.

32 . It then seems that this disamenity is not offset in the proposed layout because of the substantial paved internal driveway, which restricts the alternative private courtyards for the new units. In my opinion, the south facing courtyard of unit 3 has significantly reduced amenity because of its relatively long narrow shape, which is substantially shaded, resulting in a poor level of solar access and restricted utility.

33 . I also consider that the private courtyards of units 3 and 4 have reduced privacy and solar amenity considering their location adjacent to the access driveway, which results in them being enclosed by a 1.5 m wooden feature fence. Furthermore, the courtyard of unit 4 does not appear to be conveniently located off the livingroom. Instead it is accessed across the front terrace area, which I do not consider is a particularly good design feature, when a high level of amenity is required.

34 . Another aspect of open space amenity concerns the provision of common open space. The stated aims of s 1.8 of the DCP are to provide occupants in multi unit dwellings with an area of designated communal space for relaxation and recreation. This applies when the development contains 5 or more units and a concession applies where it is demonstrated that sufficient usable private open space for each dwelling has been provided.

35 . Considering the restricted privacy, solar access and position of the private open space areas of the units, I do not consider that the concession should apply because the utility is compromised, particularly in Units 3, 4 and 5. That being the case, consideration is required of the two proposed common open space areas in the front building setback area. In this regard I am inclined to accept Mr Adamson's evidence that the open space area adjacent to unit 1, if fenced will more likely appear as the private open space area of this unit 1. Furthermore as it is located adjacent to the lounge room and dining areas, I consider it's common use would significantly depreciate the amenity of unit 1, particularly if seating, child play equipment and barbecues are installed in accordance with the DCP, because of the close proximity to the north facing lounge room and dining room windows.

36 . The consideration of this development attracted considerable objection from the neighbours. These objections concerned loss of privacy, adverse solar impacts, loss of value and the proposal is out of character in this residential precinct. In this regard, detailed submissions were made that when this precinct was subdivided, a restrictive covenant was placed on the land restricting development to a single dwelling on each lot. As this land was originally subdivided by the same property owner, the residents are aggrieved now, because of the abandonment of this covenant, which has guided the type of dwellings on their land to create the existing attractive environment.

37 . As most of these neighbours objections have been dealt with previously in the merit considerations, I confirm my assessment that there is a resultant amenity impact on surrounding properties. However, it appears that little weight can be given to the 88B covenant, restricting the form of buildings on the land. Instead the type of development is controlled by the respective planning instruments. However these objections to clearly demonstrate that the proposal does not meet community expectations, as required by the DCP.

38 . In accordance with the provisions of s 79 C (a) (ii), the Court is required to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case, the Court is informed by Mr Reilly that Amendment No.130 is eminent and certain. This has the effect of prohibiting multi-unit development on the site. But in my assessment, there is no detailed evidence which confirms this. Therefore I do not consider it should be given determinative weight.


Conclusions
39. Having considered the evidence, submissions and undertaken a view, I do not consider this application merits consent. The overall effect of the planning controls is to allow development, which is consistent with the amenity of the existing residential area .

40. In this case, the site is located within a well defined residential precinct, which is characterised by predominantly individually designed dwelling houses, set on relatively large low-density lots in a landscaped setting. The proposal is for different form of development, comprising multi-unit housing, which includes increased density and increased paved areas for access and parking.

41. To achieve this density, the proposal involves locating the new dwellings along the lot, which I consider significantly reduces the existing neighbourhood amenity due to the minimal setbacks and lack of space for reasonable boundary landscaping. As a consequence, the location of the proposed five new units on this site, significantly limits opportunity for private and common open space areas, which have a high level of amenity.

42. Whilst I accept that a satisfactory multi unit housing proposal is permissible on the site, nevertheless it should be consistent with the provisions of the planning instruments. In my assessment, whilst this application generally complies with the numeric requirements, it nevertheless represents an overdevelopment of site when qualitative considerations of streetscape impacts, side and rear boundary setbacks, amenity of open space areas are considered. Therefore I do not consider that this development is consistent with objective (a) in providing housing in a location of high amenity. Furthermore, I do not consider it demonstrates reasonable compliance with the DCP controls to merit consent.

Court Orders
1 The appeal is dismissed.
2 Development consent for development application DA 1088/03, for the construction of multi-unit development comprising 5 villa units at 15 Drift Road, Richmond, is refused.
3 The exhibits may be returned except for 4, B, F and G.

________________
R Hussey
Commissioner of the Court
rjs