Hynes Properties Pty Ltd v The Hills Shire Council

SOLICITORS: Mills Oakley (Applicant) Matthews Folbigg (Respondent) File Number(s): 2017/281065

Judgment

1. Hynes Properties Pty Ltd (the Applicant) appeals against the refusal by The Hills Shire Council (the Council) of its development application (DA) seeking approval for demolition of an existing single-storey house and construction of three dwellings as attached housing at 32 Sherwin Avenue Castle Hill (the Property) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court is sitting in a Class 1 merit appeal under s 17(d) of the Land and Environment Court Act 1979 and therefore determines the merits of the application afresh exercising all the relevant powers of the Council under the EPA Act.
2. The property is zoned R3 Medium Density Residential as is the surrounding area bounded by Whitling Avenue to the Property's west, Purser Avenue to the Property's south and Hume Avenue to the Property's east.
3. The Court went on a site visit at the outset of the hearing in the presence of the parties and their expert town planners. There are single-storey free standing houses on either side of the Property. The opposite side of Sherwin Avenue is zoned R4 High Density Residential where a number of multi-dwelling buildings are located.
4. To the rear is a townhouse development entered from Purser Avenue. The rear of that development consists largely of turning circles and a communal space.

Environmental Planning and Assessment Act 1979

1. Section 4.15 of the EPA Act provides: Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and … (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority: (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards: (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. … (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. … (6) Definitions In this section: (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

The Hills Local Environmental Plan 2012

1. Clause 2.3 of The Hills Local Environmental Plan 2012 (THLEP) provides: Part 2 Permitted or prohibited development … 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan.
2. The objectives of Zone R3 Medium Density Residential of THLEP state: Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage medium density residential development in locations that are close to population centres and public transport routes. …
3. Clause 4.1B of THLEP provides: Part 4 principal development standards … 4.1B Exceptions to minimum lot sizes for certain residential development (1) The objective of this clause is to encourage housing diversity without adversely impacting on residential amenity. (2) This clause applies to development on land in the following zones: (a) Zone R3 Medium Density Residential, (b) Zone R4 High Density Residential. (3) Development consent may be granted to a single development application for development to which this clause applies that is both of the following: (a) the subdivision of land into 3 or more lots, (b) the erection of an attached dwelling or a dwelling house on each lot resulting from the subdivision, if the size of each lot is equal to or greater than: (i) for the erection of a dwelling house - 240 square metres, or (ii) for the erection of an attached dwelling - 240 square metre

The Hills Development Control Plan

1. Extracts from The Hills Development Control Plan 2012 (THDCP) follow: PART B Section 2 Residential … 1.1 LAND TO WHICH THIS SECTION OF THE PLAN APPLIES This Section of the DCP applies to all Residential zoned land and also applies to all land where residential accommodation land uses is permissible. Further specific controls for multi dwelling housing and residential flat buildings as defined in The Hills Local Environmental Plan 2012 are included in separate Sections of this DCP. 1.2 AIMS AND OBJECTIVES OF THIS SECTION … OBJECTIVES (i) Encourage a high standard of aesthetically pleasing and functional residential developments that sympathetically relate to adjoining and nearby developments to create consistent streetscape and character. (ii) Ensure that development will not detrimentally affect the environment of any adjoining lands and ensure that satisfactory measures are incorporated to ameliorate any impacts arising from the proposed development. … (iv) Provide high levels of amenity for future residents of any residential development. (v) Implement the principles of Ecologically Sustainable Development. … 2.5 STREETSCAPE AND CHARACTER Note. Streetscape is created by many visible features in a street including lot size, kerbs, fencing, setbacks, spatial separation, bulk and scale, access arrangements, street tree planting, native vegetation and private gardens, colours and materials, as well as the architecture of individual residences and buildings. The relationship of these elements creates character which contributes to the "look and feel" of a street, a sense of place and identity. Understanding the character of an area is critical in ensuring development contributes, enhances, and integrates with the existing character that makes an area desirable. OBJECTIVES (i) To ensure that the appearance of new development is of a high visual quality, enhances the streetscape and complements surrounding development. (ii) To ensure that new development is sensitive to the landscape setting and environmental conditions of the locality. (iii) To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development. (iv) To encourage streetscape variation whilst maintaining a high level of amenity for the development. (v) To ensure new development respects and enhances the green and garden character of The Hills Shire. (vi) To achieve development that respects and makes a positive contribution to the character and "sense of place" of Castle Hill. (vii) To enhance the visual attractiveness, safety and security and personal comfort of streets and public and semi public spaces. DEVELOPMENT CONTROLS (a) The proposed development must: • contribute to an attractive residential environment with clear character and identity; • address the street and boundaries to the site with a building form compatible with adjoining development in terms of street elevation and presentation; and • retain, complement and sensitively harmonise with any heritage item or conservation area in the vicinity that are identifies in Council's Local Environmental Plan. (b) The proposed development should maintain neighbourhood amenity and appropriate residential character by: • providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing; • using building form and siting that relates to the land form; • adopting building heights at the street frontage that do not dominate the streetscape; • retaining where possible and providing landscaping in the front and rear yards in particular tall planting in scale with the building proposed; and • considering where buildings are located on neighbouring properties. (c) Additional site specific controls apply to Hunterford Estate, Oatlands and Gilroy College (Appendix C). … 2.14 DWELLINGS The controls below apply to developments for dwellings. 2.14.1. BUILDING SETBACKS OBJECTIVES (i) To provide setbacks that complements the streetscape and protects the privacy and sunlight to adjacent dwellings in accordance with ESD Objective 7. (ii) To ensure that new development is sensitive to the landscape setting, site constraints and established character of the street and locality. (iii) To ensure that the appearance of new development is of a high visual quality and enhances the streetscape. DEVELOPMENT CONTROLS … (b) The minimum road frontage setback requirement for any non classified roads is as follows: Primary Road Frontage Setback 10m The areas where the primary road setback is not 10 metres are shown on Maps 1-4. The setbacks for these areas are outlined in the table below. ... (c) Where the predominant setback pattern of the existing streetscape reflects setbacks which exceed the required minimum, the greater setback suggested by the character created by the three (3) adjoining dwellings either side of the proposed dwelling will apply . … (g) The minimum side boundary setback requirement is: Height of building Distance of wall to boundary line Distance of eave to boundary line 1 or 2 storeys 900mm 675mm 3 storey 1500mm 1175mm

(h) The minimum rear boundary setback requirements: Height of building Setback 1 storey element of dwelling 4 metres 2-3 storey elements of dwelling 6 metres

… 2.14.2. SITE COVERAGE OBJECTIVES (i) To maximise the provision of open space. (ii) To avoid the creation of drainage and runoff problems, through minimising the amount of impervious area in accordance with Council's ESD Objective 3. (iii) To minimise bulk and scale of development. (iv) To facilitate spatial separation between buildings. (v) To provide for adequate landscaped area. (vi) Maintain the character of existing areas by retaining vegetation. DEVELOPMENT CONTROLS (a) The maximum site coverage permitted in residential zones is 60% with the exception to land zoned E4 Environmental Living and land identified in the Map Sheets by pin shading, where the maximum site coverage is 30%. Note. For the purpose of this plan the calculation of the site coverage will be subject to the following criteria: • any impervious area including, but not limited to, buildings, driveways, patios, pools, tennis courts, decks, recreation facilities and the like will be included within the calculation of site coverage; and • The total land area of the lot will be used in the calculation of site coverage. The total land area excludes restricted development areas or land required for public purposes. (b) Of the maximum permitted site coverage, the dwelling building footprint is to be no more than 45%, with the exception of land shaded pink on Map Sheets 1-42. (c) Additional site specific controls apply to land adjoining Heritage Park (Refer to Appendix C - Precinct Plan Maps and Site Specific Controls). … 2.14.5. LANDSCAPING AND OPEN SPACE OBJECTIVES (i) To enhance the quality of the built environment by providing a high standard of landscaping. (ii) To ensure that landscaping may be efficiently maintained. (iii) To promote a pleasant and safe living environment. (iv) To limit tree removal to maintain the character of the area. (v) To design a high quality landscape setting for urban housing development. (vi) To fully integrate the landscape design in communal, private and public areas as a necessary element in any well designed residential project. (vii) Too preserve and enhance existing landscape features. (viii) To encourage existing vegetation to be included wherever possible into site landscaping. (ix) To provide adequate open space areas for the enjoyment and use by residents. (x) To enhance the quality of the built environment by providing opportunities for landscaping. (xi) To provide an open space area within the development for the recreation of residents and children's play. DEVELOPMENT CONTROLS (a) All setback and car parking areas are to be landscaped and maintained in accordance with the provisions of Part C Section 3 - Landscaping. (b) The minimum required landscaped or naturally vegetated area for residential development as a percentage of the total site area is 40%. Except for land zoned E4 Environmental Living where the minimum is 70%. (c) Consideration should be given to Council's Safer by Design Guidelines, particularly in regards to natural surveillance, sightliness and lighting. Note. Landscaped area does not include any paves or built upon area such as driveways, tennis courts, patios/decks, outbuildings or pools. (d) Site specific controls apply to Hunterford Estate, Oatlands, Gilroy College and residential, development at the Corner of Old Windsor Road and Seven Hills Road, Baulkham Hills (Refer to Appendix C - Precinct Plan Maps and Site Specific Controls). … 2.14.10. SOLAR ACCESS OBJECTIVES (i) To maximise solar access to internal liv8ign spaces within buildings and open space areas in winter. (ii) To ensure no adverse overshadowing of adjoining allotments/developments including the principal area of open space. (iii) To orient the development in a way that best allows for appropriate solar access and shading, to ensure energy efficient outcomes in accordance with Council's ESD objective 5. (iv) To minimise the need for artificial lighting in dwellings during the day, to ensure energy efficient outcomes in accordance with Council's ESD objective 5. (v) To orientate dwellings so that the living areas face north. DEVELOPMENT CONTROLS (a) Dwellings should be sited to allow adequate provision for access of direct sunlight to private open space within the subject and land on adjacent properties. At least 50% of the required private open space within the subject property and that on adjoining properties is to receive direct sunlight for a minimum of 4 hours between 9am and 3pm on 21 June. (b) Living areas of dwellings shall be orientated to the north wherever possible. (c) Maximise the amount of direct sunlight available to clothes drying areas. (d) Orient buildings so that each dwelling obtains direct sunlight where possible. Ideally, orientate that long axis of the development up to 30 degrees east and 20 degrees west of true north. This is illustrated in the following diagrams: … APPENDIX C - PRECINCT PLAN MAPS AND SITE SPECIFIC CONTROLS … C.5. 64 MACKILLOP DRIVE, BAULKHAM HILLS … C.5.3 SITE SPECIFIC OBJECTIVES AND DEVELOPMENT CONTROLS … C.5.3.8 HOUSING AS PER CLAUSE 4.1B OF THE HILLS LOCAL ENVIRONMENTAL PLAN 2012 EXEMPTIONS MINIMUM LOT SIZES FOR CERTAIN DEVELOPMENTS Housing pursuant under the provisions of clause 4.1B of the Hills LEP 2012 presents the opportunity to consider all aspects of building and site design together, to be combined effectively to create a functional and attractive residential environment. Typically this form of development is referred to as "small lot housing". All small lot housing developments must be designed so as to ensure a compatible relationship between dwelling-houses on individual lots and dwellings on adjoining land. Any person undertaking a small lot housing development is required to submit a combined Development Application to Council for the construction of the dwelling-houses and subdivision of the land. Factors which should be considered in the layout of a small lot housing development include: • slope and orientation of the land; • energy-efficient design of subdivision and dwelling-houses; • solar access to adjoining dwellings/dwelling-houses; • adequate visual and acoustic privacy to each dwelling-house; • relationship to adjoining dwellings/dwelling-houses; • retention of special qualities or features such as trees and views; • provision of adequate site drainage; • provision for landscaping and private open space; and • existing streetscape character. A. SITE COVERAGE … DEVELOPMENT CONTROLS (a) The maximum site coverage (including garage/carport, driveways, outbuildings, decks, patios, paved areas and pools) for each dwelling in a small lot housing development is 65%. B. SETBACKS … Location/Frontage Setback Primary Street 7.5m

… H. LANDSCAPING OBJECTIVES (i) To enhance the setting of the heritage building and the environmental quality of the neighbourhood. (ii) To conserve significant natural features of the site and incorporate them into landscape areas. DEVELOPMENT CONTROLS (a) The minimum required landscaped or naturally vegetated area for integrated housing as a percentage of the total site area is 35%. (b) Existing trees should be preserved. (c) Native species are to be used to maintain a strong natural theme for the neighbourhood due to their low maintenance characteristics, relative fast growth, aesthetic appeal and compatibility with the natural habitat. (d) All landscaped areas are to have a minimum width of 2m. … PART B Section 4 Multi Dwelling Housing [As the only part of section 4 considered related to density and this issue was not ultimately pressed no parts are extracted] PART D Section 5 Kellyville / Rouse Hill Release Area 1.1 LAND TO WHICH THIS SECTION OF THE PLAN APPLIES This Section of the DCP applies to land within the Kellyville/Rouse Hill Release Area as outlined by a bold black line shown in Figure 1. Reference should be made to the accompanying maps (Sheets 1 to 4) for detailed boundary location. … 4. HOUSING AS PER CLAUSE 4.1B OF THE HILLS LOCAL ENVIRONMENTAL PLAN 2012 4.1 MASTERPLAN REQUIREMENT AND APPLICATION OF DEVELOPMENT CONTROLS OBJECTIVES (i) To provide greater flexibility in the design of larger housing developments. (ii) To demonstrate that all of the relevant design objectives of this Section of the DCP can be satisfied.

Amended Statement of facts and contentions

1. The Amended Statement of Facts and Contentions (SOFAC) (Exhibit 1) filed by the Council on 6 March 2018 stated: Part A: Facts … The Site 2. The site is known as Lot 29 in DP 200734, with a street address of 32 Sherwin Avenue, Castle Hill. 3. The site is regular in shape with a frontage to Sherwin Avenue of approximately 18.37 metres, side boundaries of 46.94 metres and a rear boundary to the north of approximately 18.37 metres. 4. The site has a total area of 853.7m2. 5. Currently occupying the site is a single storey residential dwelling. The subject site is located within the R3 Medium Density Residential zone. An extract of the Land Zoning Map is provided below [not set out]. The Locality 6. Adjoining the site to the south at 27-29 Purser Avenue is a two storey townhouse development. 7. Adjoining the site to the east and west are residential dwellings. 8 Opposite the site to the north of Sherwin Avenue includes a number of residential flat building developments. 9 An aerial photograph depicting the subject site outlined in red is provided below [not set out]. Statutory Controls 10. Environmental Planning and Assessment Act 1979 11. State Environmental Planning Policy - Building Sustainability Index: (BASIX) 2009 12. The Hills Local Environmental Plan 2012 ("THLEP 2012") • Part 1 - Preliminary • Part 2 - Permitted or Prohibited Development • Part 4 - Principal Development Standards 13. The Hills Development Control Plan 2012 ("THDCP 2012") • Part A - Introduction • Part B - Land Use/ Zones (Section 4: Multi Dwelling Housing) • Part C - General Development Actions of the Respondent Actions of the Respondent 14. On the 7 October 2016 a pre-lodgement meeting was held for the construction of 3 dwellings and subdivision into 3 Torrens title lots under Clause 4.1B of LEP 2012. 15. On the 17 March 2017 a further pre-lodgement meeting was held for the proposal. 16. On 29 May 2017 the Respondent received Development Application No. 1806/2017/HA. 17. The development application was notified from 30 May 2017 until 20 June 2017. No submissions regarding the development application were received by the Respondent. 18. On 23 June 2017 the Respondent issued correspondence to the Applicant requesting additional information. 19. Amended plans and information were received from the applicant in response to the Respondent's request on the 25 June 2017. 20. On the [sic] 6 July 2017 the Respondent issued correspondence to the Applicant requesting additional information. 21. On the [sic] 13 July 2017 a meeting was held in Council Chambers to discuss the request for additional information with the Applicant. 22. On the [sic] 17 July 2017 amended plans, documents and justifications were received from the Applicant in response to the meeting held with the Respondent. 23. On the [sic] 11 August 2017 a letter was sent to the Applicant noting that the request for outstanding information was not adequately addressed. A request was made to address all concerns raised (in the letter sent previously on the 6 July 2017) by 1 September 2017. 24. On the [sic] 5 September 2017 amended plans and documents were received from the Applicant in relation to engineering and subdivision matters. 25. On 15 September 2017 the Applicant, Hynes Properties Pty Ltd, commenced proceedings in the Land and Environment Court appealing against the Respondent's deemed refusal of DA 1806/2017/HA. PART B: CONTENTIONS 1. Compliance with the aims of LEP 2012 [not pressed] 2. Intention of Clause 4.1 B of the LEP The development application should be refused because the proposal does not meet the desired intention of Clause 4.1 B of The Hills LEP 2012. Particulars (a) Clause 4.1B originated from the Baulkham Hills LEP 2005, specifically Clause 22 Integrated Housing. Clause 22 of the LEP 2005 permitted consent for the purposes of integrated housing for land to which Sydney Regional Environmental Plan No. 19 Rouse Hill Development Area applied. The Standard Instrument was gazetted on 31 March 2006. As part of the Draft Hills Local Environmental Plan 2010, Council sought to apply a clause with similar intentions as Clause 22 that was to be applicable only to urban release areas in Rouse Hill/Kellyville. Correspondence with the Department of Planning in 2010 required that the draft clause for small lot housing be amended as per the model clause, which required the insertion of relevant zones rather than assigned areas. (b) An assessment was undertaken in lieu of site specific controls. Whilst it is noted that the DCP contains small lot housing controls in the form of Clause 4.1 B, these controls are site specific to urban release areas in the Rouse Hill/Kellyville area and are considered inappropriate for the subject site which is located within an established residential area. (c) In the absence of specific DCP provisions for attached dwellings assessment against the provisions of Part B Section 4 - Multi dwelling housing has been utilised to assist in a Section 79C assessment of the application and considering the likely impacts of the development and the suitability of the site for the development. Controls (a) Clause 4.1B of the LEP states as follows: Development consent may be granted to a single development application for development to which this clause applies that is both of the following: a) The subdivision of land into 3 or more lots, b) The erection of an attached dwelling or dwelling house on each lot resulting from the subdivision, if the size of each lot is equal to or greater than: i. For the erection of a dwelling house - 240 square metres or ii. For the erection of an attached dwelling - 240 square metres. (b) Part B, Section 4- Multi Dwelling Housing [This contention was not ultimately pressed. It provides useful context for contentions 5 and 6] 3. Density [not pressed] 4. Character The development application should be refused as the proposal is not consistent with the existing or desired future character of the locality. Particulars (a) The development is incompatible with the prevailing character of the area and R3 zone that is predominantly multi dwelling developments, dual occupancy and single dwelling houses. (b) The density of the development is uncharacteristic of existing and desired built form within the R3 zone in the locality. (c) Each lot contains 4 bedroom dwellings with multiple living rooms, three bathrooms and double garages. The proposed dwellings are to have total floor areas between 215.6m² and 221.6m². These dwellings have a large floor area in consideration to the lot size (between 252m² and 322.8m² inclusive of the access handle) and are incompatible with the existing character and densities of the area. The development has a site coverage that is uncharacteristic of the existing and desired built form within the R3 zone on Sherwin Avenue. The cumulative effect of approving such a development may change the character of the locality and set precedence for reduced landscape areas and greater site coverage. Controls The Objectives of Zone R3 - Medium Density Residential are as follows: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage medium density residential development in locations that are close to population centres and public transport routes. [This contention was not ultimately pressed. It provides useful context for contentions 5 and 6 which refer to the existing and future desired character of the locality] 5. Setbacks The development application should be refused because the setbacks are non-complying and inconsistent with the existing and future desired character of the locality. Particulars (a) The front setback proposed is 7.25 metres and represents a non-compliance of 2.75 metres (27%). (b) The minimum side/rear setback to the proposed second storey is 2.0 metres which results in a non-compliance of 4.0 metres (66.64%). Controls Clause 2.14.1 - Building Setbacks in Part B, Section 2: Residential of THDCP 2012 relevantly states as follows: Setback Primary Road Frontage 10.0m Side Boundary Setback 900mm (1-2 storeys) Rear boundary setbacks 4.0m (single storey element 6.0m (two storey element)

6. Landscaped Area The development application should be refused as the proposal has not demonstrated a reasonable level of landscaped area. Particulars The proposal includes 32.36% of the site to be landscaped which is a non-compliance of 2.64% (22.54m2) and a site coverage of 66.9% which is a non-compliance of 1.9% (16.22%) [The parties accept that the town planners' agreement on landscaped area applies instead set out below at [26]]. Controls Clause C5.3.8 Housing as per Clause 4.1B of the Hills Local Environmental Plan 2012 exemptions minimum lot sizes for certain developments. Item A Site Coverage relevantly states: (a) The maximum site coverage (including garage/carport, driveways, outbuildings decks, patios, paved areas and pools) for each dwelling in a small lot housing development is 65%. Item H Landscaping relevantly states: (a) The minimum required landscaped or naturally vegetated area for integrated housing as a percentage of the total site area is 35% (b) Existing trees should be preserved (c) native species are to be used to maintain a strong natural theme for the neighbourhood due to their low maintenance characteristics, relative fast growth, aesthetic appeal and compatibility with the natural habitat. (d) All landscaped areas are to have a minimum width of 2m.

Other evidence

1. The Applicant tendered the following documents: 1. Applicant's DA lodged on 29 May 2017 (Exhibit A); 2. Applicant's tender bundle (Exhibit B) which contained notices of determination to grant development consent issued by the Council for the properties at 12 Church Street Castle Hill, 16 Church Street Castle Hill, 92 Old Northern Road Baulkham Hills and 15 John Street Baulkham Hills; 3. amended architectural plans filed 3 April 2018 (Exhibit C); 4. Part D Section 5 "Kellyville/Rouse Hill Release Area" of THDCP (Exhibit D); 5. a document identifying the Council's proposed/draft conditions of consent with the Applicant's comments noted on it (Exhibit E); 6. aerial image entitled "small lot housing approvals - locality map" identifying the Property and four other properties: 12 Church Street Castle Hill, 15 Church Street Castle Hill, 92 Old Northern Road Baulkham Hills and 15 John Street Baulkham Hills (Exhibit F); and 7. aerial image identifying the Property and surrounding streets (Exhibit G).
2. The Council tendered the following documents: 1. SOFAC; 2. Council's tender bundle (Exhibit 2); 3. joint expert town planning report dated 13 July 2018 authored by Mr Barwick and Mr Blythe (consultant planners for the Council and the Applicant respectively) (Exhibit 3); 4. proposed/draft conditions of consent filed 31 July 2018 (Exhibit 4); 5. a document authored by the Council entitled "Fees & Charges 2018-2019" (Exhibit 5); and 6. minutes and report to the ordinary meeting of the Council dated 13 February 2018 (Exhibit 6).

Setbacks - joint expert town planning report

1. The planners agreed the setback measurements: 1. "The side boundary setbacks are acceptable and meet or exceed relevant DCP provisions." 2. "The experts agree that the proposed minimum front setback is 7.256m. The minimum rear setback to the single storey element of the building is 2.0m. The minimum rear setback for the second storey element is 3.189m."
2. Mr Barwick considers that Part B Section 2 "Residential" s 2.14.1 of THDCP is the relevant control, requiring a 10 m setback at the front and 4 m setback at the rear for a single-storey dwelling and 4 m for a 2-3 storey dwelling. If s C.5.3.8 is used as a guide 6 m should apply to the rear setback. The property at 34 Sherwin Avenue is set back 8.12 m and the property at 30 Sherwin Avenue is set back 11.754 m. A 10 m setback will complement the existing and anticipated streetscape, provide greater opportunity for the provision of a landscaped setting and is consistent with the established street character.
3. The 2 m rear setback is unacceptable and does not facilitate the physical separation between rear yards contemplated by the setback controls and the benefits of landscape provision and physical separation contemplated in the low rise residential environment. The provision of a 2 m setback minimises the prospect for the establishment of canopy trees to replace the canopy to be removed by the DA and to maintain the mid-block band of landscaping which currently exists and would be desirable to retain and augment both for the visual separation and as a vegetated backdrop to development on the site.
4. The limited rear setback also increases the extent of shadow cast to adjoining properties compared to the level of shadow impact that would be anticipated by a 6 m rear setback at the Property. The 9.00am to 12.00pm shadow casts further into the Purser Avenue property to the south than would arise from a 6 m setback. Similarly, the impact to 30 Sherwin Avenue would be reduced in the 3.00pm shadow with portions of the southern extent of the rear yard of 30 Sherwin Avenue likely to remain in sunlight in mid-winter if a 6 m setback were provided.
5. Mr Blythe did not consider the front setback was non-compliant as THDCP does not specifically address this kind of DA. Pursuant to s 3.43(5)(b) of the EPA Act a provision in a development control plan (DCP) has no effect to the extent it is inconsistent or incompatible with a provision of an environmental planning instrument. The application of a 10 m front setback is incompatible with the facilitation of small lot housing under cl 4.1B of THLEP. Section C.5.3.8 of THDCP Part B Section 2 "Residential" which can be a guide requires a front setback varying between 6 and 7.5 m. The DA proposes a front setback varying between 7.25 m and 7.8 m.

Front setback-oral evidence

1. In response to questions from counsel referring to the aerial image in Exhibit G about the front setbacks of nearby properties Mr Barwick agreed that the property at 19 Whitling Avenue had a similar setback to the property at 21 Whitling Avenue. He stated that the property at 21 Whitling Avenue had a much closer setback to Sherwin Avenue. Mr Barwick agreed that the dwelling on the corner of Sherwin Avenue had a reduced setback and that the dwelling at 40 Sherwin Avenue had a greater setback. He also agreed that the dwelling at 38 Sherwin Avenue had a greater setback than at 40 Sherwin Avenue and that the setback of the dwelling at 36 Sherwin Avenue was slightly forward in comparison to that at 38 Sherwin Avenue.
2. Counsel for the Applicant stated that the setbacks on Sherwin Avenue appeared to become greater as one moved in an eastward direction along Sherwin Avenue and that this staggered nature would continue across the proposed development. Mr Barwick stated in response that the family room of the front-most property of the development would have a setback consistent with the property at 34 Sherwin Avenue. It was put to Mr Barwick that the setback of the Property would therefore not be incompatible or jarring. Mr Barwick stated that the setback would not have that effect but in his opinion there was a benefit in maintaining the 10 m setback due to the narrowness of the carriageway. Mr Barwick disagreed that the wide verge on Sherwin Avenue would offset any impact caused by a reduced front setback.

Rear setback-oral evidence

1. In cross-examination by counsel for the Applicant Mr Barwick and Mr Blythe were shown the aerial image of the immediate area, Exhibit G. It was put to Mr Barwick that the property on the western corner of Pursuer Avenue and Whitling Avenue did not provide a mid-block canopy. Mr Barwick stated that if properties had a larger front setback they would not be able to provide a mid-block canopy. In response to questions about Mr Blythe's conclusion that there was no mid-block canopy in Sherwin Avenue Mr Barwick stated that there was no consistent mid-block canopy. It was put to Mr Barwick that most of the trees in Sherwin Avenue were outside of the rear setback and that there was no requirement to provide a mid-block canopy in THDCP. Mr Barwick stated that although this may be correct providing a mid-block canopy would be a beneficial outcome.

Landscaped area - joint expert town planning report

1. The town planners agreed as follows: 1. "The proposed site coverage calculated by the Architect is 559.9m2 or 65.5%, which is 0.5% above the development control of 65% that applies for development to which C5.3 applies and which Council have used as a guide in the assessment of other applications in a similar zone utilising the provisions of clause 4.1B of TLEP. The maximum site coverage permitted under provision C2.14 of The Hills DCP is 60%." 2. "The proposed landscaped area calculated by the Architect is 284.85m2 of 33.5% which is 1.5% under the minimum 35% required for development to which C5.3 applies and which Council have used as a guide in the assessment of other applications in a similar zone utilising the provisions of clause 4.1BB of the TLEP. The minimum landscaped area required under provision C2.14 of The Hills DCP is 40%."
2. Mr Barwick stated that the pursuit of large dwellings on comparatively small lots places significant importance on the relationship of the resulting buildings to adjoining properties and the public domain, in this instance Sherwin Avenue. He further stated that the non-compliance with the maximum site coverage and minimum landscaped area as well as the non-compliant front and rear setbacks results in a development that does not complement existing development and does not provide an appropriate relationship in terms of physical separation and landscape opportunities, particularly to the rear. The minimal rear setback compromises the landscaping opportunities, particularly to the rear of the Property. When small lot subdivision is proposed, it becomes paramount that setbacks, site coverage and landscape provision be complied with. This is particularly critical in an interface where amenity impacts arise. Surrounding and adjoining properties would benefit from any development on the subject site providing compliant rear setbacks and landscape area in order to provide opportunities for vegetation to include canopy contribution and physical separation to a level expected by THDCP in this low-rise locality.
3. Mr Blythe stated that the provision of landscaped area is acceptable having regard to the objectives of the relevant provisions of THDCP. Significant setbacks are provided to the Property's boundaries. These setbacks result in the provision of both site coverage and landscape area substantially consistent with the nearest relevant guidance afforded by THDCP. The extent of variation to THDCP controls, should they be applied, is insignificant and not material to the achieving positive outcomes noting that: 1. mid-size canopy trees are proposed to be provided in a number of locations including the front setback area, the private open space to the west and to the rear boundary; and 2. there is no demonstrable amenity impact associated with a small rear setback, noting that this is compensated with greater setbacks from side boundaries.

Threshold issue - application of The Hills Shire Council Development Control Plan 2012 to the development application

1. An important preliminary issue is the application of THDCP to attached housing development which is permitted by cl 4.1B of THLEP in the R3 zone.
2. Contention 2 (at [13] above) about intention of cl 4.1B of THLEP essentially arises from this issue. While not ultimately pressed by the Council it provides the context for the Council's argument in relation to THDCP. The contention refers to the circumstance recognised by the Council that when the former Baulkham Hills Local Environmental Plan 2005 (BHLEP) (now repealed) was replaced by THLEP, cl 4.1B applies across the R3 and R4 zones. Clause 4.1B had applied only in defined areas such as the Rouse Hill Development Area under the BHLEP. As identified in the particulars to Contention 2 the Council wants to change this situation. It tendered the minutes of an ordinary meeting of the Council dated 13 February 2018 (Exhibit 6) in which the Council resolved to send a planning proposal to the Department of Planning and Environment to amend cl 4.1B to mandate a minimum parent parcel of 1,800 m2 together with an amended DCP to include new controls that address built form, character and potential amenity impacts associated with small lot integrated housing and terrace development. Given the preliminary stage of the planning proposal it is not a mandatory relevant consideration under s 4.15 of the EPA Act not yet being a proposed instrument to which s 4.15(1)(a)(ii) applies.
3. According to the Applicant THDCP does not apply expressly to cl 4.1B attached housing (small lot) developments. To the extent that other THDCP provisions have location specific controls in relation to small lot developments they can be a guide but they are not binding. This was the approach the Council took to the recent assessment of four properties identified in the Applicant's evidence (referred to at [14(b)] above).
4. The Applicant tendered the development consents for four small lot housing approvals by the Council for: 12 Church Street (828 m2) of three dwellings each with three bedrooms approved 19 July 2018; 16 Church Street (833.8 m2) of three dwellings each with four bedrooms approved 26 June 2018; 92 Old Northern Road (809.4 m2) of three dwellings each with four bedrooms approved 19 July 2018 and 15 John Street Castle Hill (790.4 m2) of three dwellings each with four bedrooms approved 26 June 2018. All were identified on a locality map which became Exhibit F. As highlighted by the Applicant, the Council's planning assessment reports for all four stated that in the absence of specific DCP controls for this type of development in Castle Hill the DA was assessed on merit against the small lot housing provisions under Part D Section 5 "Kellyville/Rouse Hill Release Area" s 4 and Part B Section 2 "Residential" s 2.13 in THDCP, and s C.5.3.8 for 64 Mackillop Drive Baulkham Hills as a guide.

Merit consideration

1. Section 4.15(1) of the EPA Act identifies those matters requiring consideration in the determination of a DA.
2. Under s 4.15(1)(a)(i) the provisions of THLEP are relevant. Clause 4.1B of THLEP applies to permit the proposed development. The only specific guidance in THLEP about the application of cl 4.1B is in subcl (1) which states that the objective of the clause is to encourage housing diversity without adversely impacting on residential amenity. A single DA which seeks subdivision of a block into three separate lots with the erection of attached dwellings of no more than 240 m2 is permitted under cl 4.1B(3)(b)(ii). The proposed development satisfies these parameters provided it does not unduly impact on residential amenity.
3. No relevant proposed instrument exists for the purposes of s 4.15(1)(a)(ii) of the EPA Act.
4. A DCP can be relevant under s 4.15(1)(a)(iii) of the EPA Act. I have considered the limited application of THDCP immediately above. Given the absence of specific controls in THDCP applicable to this DA Mr Blythe's approach to the statutory controls is to be preferred. This results in an overall assessment of the proposed development in its context. The likely impacts of the development on the natural and built environment s 4.15(1)(b), the suitability of the site for the development s 4.15(1)(c) and the public interest s 4.15(1)(e) must be considered.
5. No social or economic impacts in the locality requiring consideration for the purposes of s 4.15(1)(b) have been identified by the parties.
6. The Council submitted that the merit issue was broadly whether this form of development while permissible under cl 4.1B justifies the three large four bedroom attached dwellings proposed on this site. Smaller houses can be built which comply with THDCP setback and landscape controls.
7. That the Council has concerns that THLEP lacks the strategic provision for this type of housing is difficult to attribute any weight if the development is otherwise acceptable.

Setbacks

1. Contention 5 (setbacks) relies on non-conformity with current and future character. I will assess it in that light.
2. Mr Barwick considered that the proposal for two-storey development provided a suitable scale of building for the locality. He considered the required landscape area provision and front and rear landscaped setbacks in ss 2.14.5 and 2.14.1 respectively were critical in ensuring that any development on the site is compatible with the prevailing and future character of the locality. The prevailing pattern of development provides a landscaped setting to the street which is complemented by mid-block landscaping that results from the rear setbacks of development. A rear setback of 6 m is an important element in the desirable pattern of urban renewal, allowing for enhanced privacy between developments, in this case the development in Purser Avenue. The rear setback also reduces the level of shadow impact on adjoining development by maximising physical separation. The rear setback provides greater scope for landscape provision that could contribute to the mid-block tree canopy.
3. Mr Blythe considered street character to be defined by a combination of building siting, horizontal mass, appearance, landscaping and front fencing. The proposed development would have characteristics of a single dwelling development viewed from Sherwin Avenue, with a landscaped garden setting to be established in the front setback. There are already multi-dwelling developments interspersed with single-storey developments to the south of the site. There is no consistency of rear building setbacks and landscaping provision in Sherwin Ave and Purser Avenue. The ability to meet broader level objectives of buildings set within a landscaped context can be achieved in ways that do not include a 4 to 6 m rear setback.
4. I largely agree with Mr Blythe's analysis. The development is well designed in presenting as a single dwelling house to the front streetscape. This is in keeping with the existing streetscape, accepting that is likely to change over time given the R3 zoning and the proximity to the currently under construction Castle Hill train station and shopping area, which is some 450 m away. The application of the setback controls as sought by the Council would result in three narrow houses with very little if any distance between them and three driveways at the front. Such a presentation would be quite out of keeping with the current single dwellings in the street. The proposed front setback responds well to the surrounding properties.

Solar access

1. It is helpful to consider as a guide the solar access requirements of THDCP Part B Section 2 "Residential" in s 2.14.10 given the potential for adverse impacts on the townhouse development to the rear in Purser Avenue. The reduction of solar access to the rear yard of one townhouse is in conformity with the numerical standard in s 2.14.10 development control (a). The proposed design meets the development controls in (b) and (c).

Landscaping

1. In relation to Contention 6 (landscaping) I have found THDCP controls do not strictly apply but provide a useful guide. The planners agreed (see [26(b)] above) the proposed landscaped area of 284.55 m2 is 1.5% under the 35% specified in THDCP Part B Section 2 "Residential" s C.5.3.8, also noting s 2.14.5 requiring 40%. The relatively minor reduction in area must be considered in the context of the overall development.
2. In relation to providing a mid-block tree canopy I agree with Mr Barwick that enhancement of this is desirable. It is not a requirement of THLEP or THDCP to do so. The provision of mid-block canopy trees in the rear yards of the surrounding properties is presently inconsistent. The townhouse development to the rear fronting Purser Avenue has no high or mid-level canopy along the rear boundary being a largely paved area. A swimming pool in a rear yard can be very close to a boundary as can be seen in a nearby property facing Purser Avenue. The 2 m rear setback proposed will include some canopy trees in the amended landscaping plan prepared on 7 August 2018. The existing vegetation on the property presently provides about 2 m wide band of mid-to-high level canopy at the rear with the balance being lawn. The area of landscaping in the front and rear is acceptable given the form and features of the development overall.

Development consent should be granted

1. I consider development consent to the Applicant's DA should be granted. The impacts of the development on the built environment are acceptable and the site is suitable for the development. The grant of development consent is consistent with the public interest in the provision of mixed styles of housing in the R3 zone. The parties have agreed development consent conditions and an amended landscaping plan has been provided with more trees as I requested.

Orders

1. I make orders as follows: 1. The Applicant's appeal is upheld. 2. Consent is granted to development application no. 1806/2017/HA lodged on 29 May 2017 for the demolition of existing structures, subdivision into three Torrens title lots and construction of an attached two-storey dwelling on each new lot, associated drainage works, landscaping and a right-of-carriageway for access at 32 Sherwin Avenue, Castle Hill, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979, subject to the conditions of consent attached and marked Annexure "A". 3. The exhibits except Exhibits 1 (amended statement of facts and contention) and C (approved plans referred to in condition 2) are returned.

ANNEXURE A - Hynes - Annexure A (123 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2018