Webb v Hornsby Shire Council
[2007] NSWLEC 769
•8 November 2007
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Webb v Hornsby Shire Council [2007] NSWLEC 769
PARTIES:
APPLICANT
Bill Webb
RESPONDENT
Hornsby Shire Council
FILE NUMBER(S): 10826 of 2007
CATCHWORDS: Development Application :- Alterations extensions, stormwater disposal/downstream easement, waste water management, utilisation of open space area
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994
Sydney Regional Environmental Plan No 20 – Hawkesbury – Nepean River
Hornsby Dwelling House Development Control Plan
Berowra/Cowan Development Control Plan
CASES CITED:
CORAM: Hussey C
DATES OF HEARING: 08/11/2007
EX TEMPORE DATE: 8 November 2007
LEGAL REPRESENTATIVES
APPLICANT
Mr R. Creighton, agent
RESPONDENT
Mr T. Pickup, solicitor
of Storey and Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHussey C
8 November 2007
10826 of 2007 Bill Webb v Hornsby Shire Council
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
Background.
This appeal was lodged against council's refusal of a development application for alterations and additions to an existing dwelling and the construction of a freestanding double garage at 32 Alberta Ave, Cowan.
The alterations involve the extension to a lower ground floor comprising front and rear porch, additional toilet and other internal changes, together with the construction of a second-storey comprising a family room, bedroom, bathroom and rear deck. The application also provides for the construction of a new Colourbond double garage, which involves demolition of an existing fibro garage. It also involves the relocation of an existing septic system.
The site.
The site is described as Lot 5 in DP 31781 and it has total area of 676.6 sq m and a frontage of 16.77m 2 Alberta Street.
The site is situated in a residential area where single storey dwellings predominate.
Planning controls.
Hornsby Local Environmental Plan 1994; under which the site is zoned Residential A (Low Density). The use is defined as ancillary to a dwelling house and is permissible pursuant to clause 7 of the LEP.
Clause 15 requires a maximum floor space ratio (FSR) in the Residential A zone of 0.4:1. The proposal complies with this requirement, having a FSR of approximately 0.28:1.
Sydney Regional Environmental Plan No 20 – Hawkesbury – Nepean River.
Hornsby Dwelling House Development Control Plan; which contains design elements for setbacks, privacy, private open space and soil and water management elements.
Berowra/Cowan Development Control Plan.
The evidence.
For the appeal, a number of issues were initially identified. However the applicant responded to these with some amendments and this resulted in the outstanding issues involving:
The management of stormwater;
The suitability of the on-site wastewater management system;
The utility of the available open space areas.The stormwater disposal issue arises because the land slopes away from the street. However the applicant has undertaken negotiations with a downstream property owner and intends to obtain a drainage easement to enable the stormwater from the proposed development to connect to councils existing downstream stormwater system. Providing this drainage easement is acquired and the appropriate piping constructed, Council is satisfied that this issue can be covered by way of a Deferred Commencement condition. On the basis of the evidence before the Court, including observations at the view, I am satisfied that this is a reasonable approach to address this issue.
The wastewater issue was dealt with in a joint report (Exhibit 4) by Mr D Mathew, from Envirotech Pty Ltd and Ms S Spencer - councils environmental control officer. This involved reference to the site subsurface conditions and estimated wastewater generation rates for the proposal. These experts agreed that:
The existing septic system is inadequate;
The site constraints and inability to meet buffer distances and open space requirements for both an aerated wastewater treatment system and septic tank/absorption tank results in the following feasible options:1.Septic Tank and Pumpout System -for both black and grey water,
2.Greywater Treatment System with effluent reuse for toilet flushing and black water to a septic tank and absorption trench,
3.Greywater Treatment System with effluent reuse for toilet flushing and black water to a septic tank and pump out system.
Following further assessment and conferencing, these experts agree that Option 2 is appropriate in the circumstances of this case, on the basis that restrictions are placed of the wastewater disposal areas in the back and front yard areas. The parties also agree that conditions of consent could cover these requirements.
In the absence of any challenge to this agreement from the wastewater experts, I rely on this evidence that the wastewater from the development can be satisfactorily controlled in accordance with the stated Effluent Disposal Strategy in the DCP.
The remaining issue concerns the utility of the open space areas, relative to the Private Open Space controls in the DCP, whose objectives are:
Development to provide adequate usable private open space to support residential outdoor activities and use.
No substantive evidence was presented to indicate that the residue open space areas would not satisfy this objective. I understand from the evidence that the construction of the wastewater storage areas will be such that use of the land will be safe. Accordingly I am satisfied that the amended proposal addresses this issue.
Court Orders
1. The appeal is upheld.
2. Development consent is granted to DA No 481/2007 for alterations and additions to an existing dwelling at 32 Alberta Avenue, Cowan subject to the conditions in Annexure A.
3. The exhibits may be returned except for A, B, 4 and 5.
_________________________
R Hussey
Commissioner of the Courtljr
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