Prowse v Hornsby Shire Council

APPLICANT Mr S Kondilios, solicitor Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Hornsby Shire Council (the Council), on 8 August 2006, of Development Application DA/677/2006 for the erection of a second dwelling at 14 Warrina Street, Berowra Heights (being Lot 7 in Deposited Plan 29327)(the site) and the subdivision of the site into two new allotments containing a single dwelling on each allotment. 2 As part of the process of discussion of the merits of the plan, the applicant has made, in response to concerns raised by the Council about the adequacy or otherwise of the private open space to the proposed front allotment which will contain the existing dwelling, a number of significant changes so that there will be an area of private open space to the front of the dwelling on the street side with a three metre setback, a substantial privacy affording fence and significant landscaping in that setback area. 3 Also suggested by Mr Fryar, the Manager of Development Assessment for the Council, was the chamfering of the corner to the driveway to provide a degree of interest in the streetscape. 4 I am satisfied that, on a design basis, this is an appropriate response to the provision of private open space and the accommodation of such private open space in the streetscape as well as the affording of privacy to that private open space. This private open space will enjoy significant solar access and will be of significant size above the minimum private open space requirement of the Council's controls. 5 There have also been a number of other design modifications made to the proposal, such as the relocation of the car parking space for the front dwelling to its rear rather than in being in the front setback, of landscaping, of balustrading to the centre terrace facing the neighbouring property on the existing dwelling and the removal of steps to it, increase of access to the private open space at the front which will also have the benefit of adding a little extra light access into and opening up the existing dwelling. 6 The proposed rear dwelling will have its proposed water tanks undergrounded in the private open space area at the rear. There is a non-compliance, on the Council's assessment, of the area of landscaping for the rear allotment which means a non-compliance of some two per cent or so with the forty-five per cent minimum requirement (on the basis that Mr Fryar has undertaken the calculations). 7 Mr Minto, planner for the applicant, has undertaken a slightly different (and more generous to the applicant) calculation of that area but this still results in a minor non-compliance. 8 I am satisfied that there is no need to determine a preference between the two, because, on the basis of the redesign to the car parking space to the front dwelling and the incorporation of some landscaping to the new carspce which will be visible at time of approach to an entrance into the rear dwelling, on Mr Fryar's calculations, the difference is sufficiently de minimus not to warrant concern in that regard.

9 I am, therefore, prepared to deal with and accept the landscaping matters on the basis of Mr Fryar's calculations, rather than needing to prefer Mr Minto's calculations. 10 The critical, substantive issue that arises for determination is the question of whether or not a non-compliance with the minimum allotment area, contained in the Council's Local Environment Plan (the LEP), should be permitted.

11 The minimum subdivision size contained in cl 14 of the LEP for this zoning, which is the Residential (A) Low Density zoning, is a 500 square metre allotment excluding any area of access right of carriageway or the like.

12 Each of the resulting allotments in this proposed subdivision does not comply with that standard. The front lot, proposed lot 71 (which will include the existing dwelling), has an area of 391.4 square metres excluding the right-of-way. Lot 72, the rear lot with the new house, will have an area of 450.7 square metres excluding the access areas to it. 13 The site is in the centre of four allotments which have an existing subdivision pattern which will generally reflect the subdivision pattern for this site if it is approved.

14 Each of those subdivisions, I am satisfied, occurred under a planning regime that no longer applies. Amendment 8 to the LEP, which was gazetted in December 1995, was precisely designed to impose the minimum 500 square metre allotment size for any such subdivision. 15 The applicant has provided to the Council, with the original development application, and presses in these proceedings, an objection pursuant to State Environmental Planning Policy No 1 (SEPP 1) to compliance with that allotment size. The form of questions that are posed by the decision of Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 is followed in Mr Minto's SEPP 1 objection. 16 With respect to the first three questions posed by his Honour, there does not seem to me to be substantial area of disagreement.

17 The area of disagreement arises as to the reasons why or why not it would be unreasonable or unnecessary, in the circumstances of the case, to comply with the development standard. 18 In effect, Mr Minto provides three substantive bases. The first is that the second dwelling house at the rear, if applied for without the subdivision, would comply with the Council's low density multi-unit housing provisions, a proposition acceded to by Mr Fryar and not in contention in these proceedings.

19 As a consequence, the SEPP 1 objection effectively says, it would be permitted as multi-unit housing; it is able to be built; therefore there is no impediment to it being subdivided as that simply amounts to drawing lines on a plan and creating a separate title. I do not accept this proposition. 20 The second basis upon which it is put, is that there will be no impact on the density of the area and there will be no modification of the bulk and scale of the site in its presentation to Warrina Street.

21 To some extent, that is not an appropriate basis presently to be considered, given that there will now be a modification to the presentation to Warrina Street, albeit a beneficial one compared to the original design. There will be a modest impact on the density of the area. 22 The third basis upon which the SEPP 1 objection is put, is that, "the proposal seeks to provide for an outcome for the subject site, identical with that currently existing on a number of the adjoining properties".

23 It is upon that basis (and confined to that basis in the geographic context of this site), that I am prepared to determine that it is unreasonable to require the meeting of the development standard and that as a consequence, the SEPP 1 objection, based on that extremely narrow premise, is well founded and should be sustained. 24 The street context of Warrina Street in the vicinity of the site, has an extremely large, some 25,000 square metre, institutional site, comprising what appeared to be a number of education and other community type facilities located directly opposite the site, commencing at some point slightly uphill from the site. As a consequence, there is no residential context directly opposite.

25 The site is surrounded by two original allotments on each side that have been subdivided in a fashion similar to that which is proposed for this site. In that context, this site might be regarded as an orphan. 26 There are, I note, two other allotments located between the two downhill subdivided allotments and one further downhill subdivided allotment at 24 Warrina Street and one further allotment at 26 Warrina Street, all of which are slightly smaller than the present site but which might themselves be the subject to some future application based on the determination I have made in these proceedings.

27 Those three allotments. If some application be made in the future, will remain to be determined on the merits of any such application that might be made with respect to them and the designs that might be proposed for them, and I make no comment with respect to them. 28 However, those three allotments are the sum total of those that are potentially affected by the combination of any argument as to juxtaposition with the ancient regime subdivisions which surround this site, and their coupling with the absence of any potential impact on a residential streetscape when viewed from the other side of Warrina Street because of their geographic opposition to the large institutional site located on the other side of the street. 29 Such circumstances are not available anywhere else I can see.

30 Certainly, there is nothing else in the vicinity, with the remote possibility of one allotment in what appears from the plan I have to be Hillcrest Road, of any allotment of a similar size to the subject site and in adjacency to a subdivision, coupled with a geographic opposition to the educational institutional site.

31 Even then, such location is along the shorter of the frontages to the institutional site.

32 In this case, the institutional site takes up and totally dominates the streetscape of this portion of Warrina Street. I would see that there would be, although these remarks are obiter, little comfort for anybody in Hillcrest Road from the decision that I am making with respect to this allotment, confined to this sandwiched site in Warrina Street. It is upon that basis and only that basis that I am prepared to sustain the SEPP 1 objection in this case.

33 The consequence of that is that the appeal will be upheld - there being now no contest about the conditions of consent as the fencing arrangements for lot 71 will require to be dealt with by way of amended plans.

34 Therefore the appeal will be upheld and approval for the dwelling and subdivision will be granted, subject to conditions of consent which will need to be revised in light of the terms of this decision and revised plans which will need to be filed to reflect the matters that were agreed during the course of the proceedings.

19/02/2007 - Order of items in judgment heading - Paragraph(s) N/A

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