Winter Group Architects v Hornsby Shire Council
[2006] NSWLEC 664
•19 October 2006 ex tempore
Land and Environment Court
of New South Wales
CITATION: Winter Group Architects v Hornsby Shire Council [2006] NSWLEC 664 PARTIES: APPLICANT
RESPONDENT
Winter Group Architects
Hornsby Shire CouncilFILE NUMBER(S): 10986 of 2005 CORAM: Brown C KEY ISSUES: Development Application :- subdivision of lot into two lots and the erection of a dwelling on one of the lots - lot width - streetscape/character - provision of off street car parking - amenity impacts LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hornsby Shire Local Environmental Plan 1994DATES OF HEARING: 19/10/06 EX TEMPORE JUDGMENT DATE: 10/19/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr J Hannaford, solicitorSOLICITORS
RESPONDENT
Hannaford Lawyers
Mr P Jackson, solicitor
SOLICITORS
Pike Pike and Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
19 October 2006
JUDGMENT10986 of 2005 Winter Group Architects v Hornsby Shire Council
1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of Development Application 1657/2004 for the subdivision of the land at 105 Oxley Dr., Mount Colah (the site) into two lots and the erection of a dwelling on one of the lots.
2 The proceedings were conducted as an On Site Hearing and the judgement reflects the details in the Statement of Basic Facts and the findings given on site on 19 October 2006.
3 The site is Lot 381 in DP 713982. It is it generally rectangular in shape with a northern frontage to Oxley Dr. of 22.6 metres and a depth of around 44.6 metres. There is a fall of approximately two metres from the east to west. A single storey dwelling and concrete parking area in the front setback are located in the western part of the site.
4 The locality is characterised predominantly by residential development of mixed architectural styles.
5 The proposal provides for the subdivision of the site into two lots; Lot 1 and Lot 2. Lot 1 has a frontage to Oxley Dr of 10.874 metres and an area of 525.3 square metres. The existing dwelling is to be retained on Lot 1. Lot 2 has a frontage of 11.19 metres to Oxley Dr and an area of 513.1 square metres. A new dwelling is to be erected on Lot 2. A single car parking space for Lot 2 is to be provided between the building line and the property boundary on a hardstand area.
6 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The use is permissible with consent under this zoning. Clause 7(2) provides that the objectives of the zone are required to be taken into account before consent is given. The relevant zone objective is:
- (c) to provide for development that is within the environmental capacity of a low-density residential environment
7 Clause 14(2) provides for a minimum lot area of 500 square metres. Clause 15(1) provides for a maximum floor space ratio of 0.4:1. There was no dispute that the proposed development satisfied these requirements.
8 Hornsby Shire Dwelling House Development Control Plan (the Dwelling House DCP) applies and provides objectives, performance criteria and prescriptive measures for a range of elements. The relevant elements are Setbacks, Vehicle access and parking and Fire hazard.
9 Hornsby Shire Residential Subdivision Development Control Plan (the Subdivision DCP) applies and provides objectives, performance criteria and prescriptive measures for a range of elements. The relevant elements are Density, Allotment layout, Land sensitivity and Fire hazard.
10 The council filed an Amended Statement of Issues containing 8 separate issues. The issues can be conveniently grouped into the single issue of the impact on the streetscape and character of the area brought about by the width of the proposed lot and the location of parking within the building setback.
11 The parties agreed to the appointment of Mr Chris Young as the Court appointed town planning expert. Mr Chris Blyth provided additional town planning evidence on behalf of the applicant.
12 Additional evidence for the council was provided by local residents Mr and Mrs Turner of 103A Oxley Dr., Mr Carter of 139 Oxley Dr. and Mr Clarke 144 Oxley Dr. The concerns of local residents generally reflected the issues raised by the council with the exception of some issues raised by Mr and Mrs Turner. Their concerns related to the proximity of the new dwelling to their residents with a consequent loss of privacy and loss of views.
13 Mr Young stated that the proposed development would be out of character with the surrounding area because of the narrow frontage width that results in hard surface vehicle accommodation occupying an unreasonable proportion of the frontage and streetscape to the detriment of landscaping. The local residents who gave evidence on-site supported Mr Young’s evidence.
14 Mr Blyth stated that the location of the car parking is consistent with the adjoining properties and that parking in the building line is not an uncommon feature of the location generally. In his opinion, there is sufficient landscaped area in the front building line to soften the proposed hardstand vehicle parking.
15 With the benefit of the site view and the surrounding area, I accept the conclusions of Mr Young. The character of the area is predominantly single dwelling houses of single and double storey appearance with reasonable setbacks from the street and between dwellings. These are setbacks are landscaped with the front setback interrupted by access to garages generally forming part of the dwellings. While the examples given by Mr Blyth of the adjoining properties support his position, I am not satisfied they are sufficient justification for the proposed development.
16 The existing dual occupancy development to the east provides parking on a hardstand surface although largely behind the building line. It was submitted that the development was approved under a previous planning regime and would not be currently permissible. The hardstand area to the west is located within the subject site and relates to the existing dwelling on the site. It was submitted that no council approval was obtained for its construction although council is aware of the construction.
17 The Court was also taken to an example in Oxley Dr. where the garages within a dwelling were converted to residential use and a carport constructed in the setback area. As I understand, this recent approval was based on the retention of the remaining setback as landscaped area and is specifically catered for within the councils planning controls.
18 Even though the proposed development satisfies the 500 square metre minimum area requirement and there are no minimum lot width requirements in any council planning controls, I am not satisfied that the proposed development satisfies the prescriptive measure of the Density element in the Residential DCP, in that
- Lots should enable the construction of a built form which is sympathetic to the established character of the area.
19 I am not satisfied that a new residential development should not provide for two off street parking spaces behind the building line as required by the Dwelling House DCP, particularly where the vast majority of residential development satisfies this requirement (even though it may not always be used). The provision of parking forms part of the wider streetscape and character issue.
20 In my view, the requirements of the Rural Fire Service, the Residential DCP and the Dwelling House DCP that require a front setback, a rear setback for bushfire protection, the designation of a building platform and the need to provide two car parking spaces behind the building line effectively constrain the subdivision of the land and erection of a new dwelling on Lot 2. When balanced against the need to provide for development that is within the environmental capacity of a low-density residential environment, I find that the proposal exceeds the environmental capacity of Lot 2.
21 Put simply, the proposed width of Lot 2 does not allow the erection of a dwelling that would be sympathetic to the established character or character of the area anticipated by the councils planning controls. The impact on the character of the area would also be exacerbated by formalising the existing dwelling on a separate lot of similar width and with parking in the setback area.
22 The concerns expressed by Mr and Mrs Turner over loss of privacy and loss of views were considered on-site and, in my view, were not matters that would warrant the refusal of the development application despite the marginal non-compliance with the site setback requirements. I accept that all reasonable attempts were made to minimise view loss through the single storey structure and flatter roof pitch. The natural fall and the proposed cut and fill construction would prohibit any direct overlooking into the Turner dwelling.
23 All southern windows in the existing dwelling on site will receive no sunlight in winter due to the construction of the new dwelling and the need to provide a 1.8 metre high fence. As the prescriptive measures in the Solar Access element of the Dwelling House DCP refer only to solar access to north facing windows of adjoining dwellings the proposal satisfies these requirements. Unfortunately, the southern windows relate to the lounge room, kitchen and family rooms of the dwelling so this is clearly not an optimal situation. Notwithstanding compliance with the prescriptive measures in the Solar Access element, I note that the proposal would be inconsistent with the Solar Access element objective of ensuring "reasonable solar access to living areas within dwellings…."
24 The orders of the Court are:
______________1) The appeal is dismissed.
2) Development Application 1657/2004 for the subdivision of the land at 105 Oxley Dr., Mount Colah into two lots and the erection of a dwelling on one of the lots is refused.
3) The exhibits are returned.
G T Brown
Commissioner of the Court
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