P. S. Graham v Hornsby Shire Council

CASES CITED: Shaw v Hornsby Shire Council [2006] NSWLEC 79

APPLICANT Mr P. Graham, advocate

LEGAL REPRESENTATIVES: RESPONDENT Mr P. Jackson, solicitor of Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. Background. 1 This appeal was lodged against council refusal of a development application for a 2 lot residential subdivision at No 58 Sutherland Road, Beecroft. A number of issues were identified for the appeal, which can be summarised as follows: o whether the proposal complies with the zone objectives, particularly the environmental capacity of the lot sizes, o landscaping and loss of trees, o future residential development opportunities, o matters raised by objectors.

2 The parties agreed to Mr N Kennan being the Court appointed expert for planning and he prepared a detailed assessment of the proposal (Exhibit 3), resulting in his conclusion that the proposal merited conditional consent. Following the consideration of this assessment, the parties agreed to enter Consent Orders.

The site. 3 The subject site is described as Lot X DP 408120 and it has a total area of 1245 sq m. The land is situated on the northern side of Sutherland Road and has an average fall of 20% to the rear of the site.

4 The development proposal also includes access over the adjoining battleaxe handle to Lot 2 DP 841867 (No 56A) Sutherland Road.

5 There is an existing single storey weatherboard dwelling with tiled roof sited on the subject land. The property contains a number of mature trees. Adjoining the site are detached two-storey brick and tile dwelling houses on neighbouring lots.

The proposal. 6 This proposal involves the demolition of the existing dwelling and the creation of the following allotments: o Lot 1; the frontage allotment with an area of 630 sq m and side of boundary length of approximately 29m. Access to this lot is to be obtained via the existing ROW on No 56A, which allows the removal and restoration of the existing driveway to No 58 Sutherland Road and retention of mature trees in the front setback area. o Lot 2; the rear hatchet-shaped lot with an area of 610 sq m. and average depth of approximately 28m. This lot is of uniform shape with an average fall of 18% to the rear of the site. Access to this lot is also over the existing ROW on No 56A. It includes a number of significant trees identified as Nos 14, 16,17 & 18.

7 Conceptual building footprint plans showing an area of 200 sq m are noted on the subdivision plan.

8 Hornsby Shire Local Environmental Plan 1994 (HLEP). Under this LEP, the site is within the Residential AS (Low Density -Sensitive Lands) Zone. The proposed development is defined as 'demolition' and 'subdivision' and is permitted pursuant to cl 7 of the HELP. A minimum lot size of 600sq m applies under cl 14.

9 The zone objectives are: (a) to provide for the housing needs of the population of the Hornsby area. (b) to promote a variety of housing types and other land uses compatible with a low density residential environment and sensitive to the land capability and established character of this environment. (c) to provide for development that is within the environmental capacity of a sensitive low density residential environment.

10 The site is within a bushfire prone area. The proposed subdivision is integrated development and subject to approval by the NSW Rural Fire Service for the issue of Bushfire Safety Authority under s 100B of the Rural Fires Act 1997.

11 The site is within the Beecroft -- Cheltenham Heritage Conservation Area , which is listed under Schedule E of the HELP. Clause 18 of the LEP requires Council to consider the impact of the proposed development on the heritage significance of the heritage conservation area.

12 Residential Subdivision Development Control Plan; the primary purpose of this DCP is to provide controls for residential subdivision within the low density residential zones. The relevant sections of the DCP include controls for: density, allotment layout and design, setbacks, solar access, private open space, landscaping, land sensitivity, drainage control, urban streams, soil and water management and accessway design.

13 Heritage Development Control Plan; the primary purpose of this DCP is to "manage the heritage in Hornsby Shire and provide guidance and outline specific controls for development relating to heritage items and heritage conservation areas". The DCP include a statement of significance for the Beecroft -- Cheltenham Heritage Conservation Area.

14 Byles Creek Development Control Plan; this DCP "provides controls and guidelines for development within the Residential A and AS Zones, and Open Space A, B and C Zones within the catchment of Byles Creek".

The evidence. 15 As a starting point, I note that a detailed development assessment report is contained within councils bundle of documents. This assessment confirms that the proposal demonstrates substantial compliance with the relevant controls and the zone objectives, resulting in a recommendation for the conditional approval of the proposed subdivision.

16 Apart from this, Mr Kennan undertook a separate assessment of identified issues. With respect to objective (c) dealing with environmental capacity, he notes that in the absence of any definition in the LEP, he considers it appropriate to adopt the following definition stated by Commissioner Bly in Shaw v Hornsby Shire Council [2006] NSWLEC 79: ..I understand that this provision requires development to be sensitive to its surroundings in terms character and also in terms of amenity impacts.

17 One of the main aspects of this issue concerns the DCP's requirement that the minimum allotment size be increased over the stated minimum area of 600 sq m in the LEP, depending on the slope of the land. Application of this DCP control would require each of these new allotments to have a minimum area of 675 sq m.

18 Accordingly, Mr Kennan says: Having regard to the surroundings of the Site in terms of its character, the vicinity of the Site is characterised by a mixture of lot sizes. The original subdivision pattern for the area was that of long, relatively narrow lots, with dwellings generally at the street frontage. In recent times, however, the subdivision pattern has changed whereby residents have applied for and had approved subdivision of the original large lots to create a series of battleaxe shaped lots in accordance with the controls contained in LEP 1994…

It is my opinion that the proposed development fits within the existing character of this section of Sutherland Road as it relates to lot layout and lot sizes.

With regard overlooking, the proposed lots indicate a building envelope upon which can be established a dwelling house. It is my opinion that any development in this section of Sutherland Road will have the potential to overlook adjoining development.

It is paramount, at the subsequent development application stage for dwellings on the lots to be created, that the Council ensures suitable measures are incorporated into the design of those dwellings to ensure that overlooking is limited to an acceptable level. I am of the opinion that this can be achieved on the proposed two (2) allotments.

With regard to overshadowing, again, at the development application stage for dwelling houses on the proposed lots, the Council will ensure that overshadowing will be kept to an acceptable level in accordance with the provisions of the Dwelling House Development Control Plan.

I am of the view that properly designed dwelling houses could be established on each of the proposed lots to meet the requirements of the Dwelling House Development Control Plan. As such, I am of the view that objective (c) of the zone and prescriptive measures of the Density Control Element of the DCP have been generally met by the proposed development such that variation of the variable lot size control of the DCP is warranted.

19 With regard to the landscaping issue, Mr Kennan refers to and relies on the council officers statement that: " The indicative building envelope on lot 1 involves the removal of indigenous trees Nos 10, 11 & 12 which are not identified as significant.

The indicative building envelope on lot 2 involves the removal of ensures trees Nos 15 & 21, which are not identified as significant.

A total of 17 of the 22 existing trees would remain following the development."

20 Accordingly, Mr Kennan considers that revised subdivision layout, utilising the adjoining ROW for access, results in an acceptable outcome in terms of the landscape element objective of the DCP, subject also to conditions being imposed requiring the planting and maintenance of additional indigenous species. I accept the experts opinions in this regard.

21 Mr Kennan also assessed the objections made by the neighbour Ms Cooper. These objections relate to the change of character with removal of vegetation, likely loss of privacy and shadowing and noise from increased use of the existing driveway. However, in accordance with the aforementioned details, Mr Kennan considers that these impacts are not sufficient to warrant rejection of the proposal.

Conclusions. 22 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the planning controls envisage some change in character in this Residential AS zone, where the minimum lot sizes may be reduced to 600 sq m. The proposal complies with this requirement and I accept Mr Kennans opinion that the new lots have sufficient environmental capacity to enable construction of appropriate dwellings on the new allotments in the future. Therefore, I am satisfied that the zone objectives have been reasonably satisfied in this case to allow to the consent orders to be made.

23 With regard to the heritage and conservation area issues, I note that this has been assessed by council and no substantive evidence was submitted which would lead me to conclude that the proposal has an adverse impact on this heritage area.

24 The conditions attached to these consent orders include deferred commencement conditions requiring satisfactory arrangements to secure legal access rights over the adjoining ROW and downstream drainage easements. I consider these conditions appropriate in the circumstances of this case.

Court Orders. 25 The Court orders by consent: 1. The appeal is upheld. 2. Deferred commencement development consent is granted to development application DA834/2006 for the demolition of an existing dwelling and subdivision of one lot into two lots at Lot X in Deposited Plan 408120, known as 58 Sutherland Road, Beecroft, NSW, subject to conditions in Annexure "A". 3. The exhibits be returned except for 2, 3 and A.

      R Hussey
      Commissioner of the Court
      ljr

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