Riverland Enterprises Pty Ltd v Baulkham Hills Shire Council

Baulkham Hills Local Environmental Plan 1991 LEGISLATION CITED: Baulkham Hills Local Environmental Plan 2004 Baulkham Hills Development Control Plan No. 7 - Villas

CASES CITED: AVK Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 275

DATES OF HEARING: 09-10/08/2005 and 07/10/2005 EX TEMPORE JUDGMENT DATE : 10/07/2005

APPLICANT Dr S Berveling, barrister Instructed by Mr G Loupos SOLICITORS George Loupos Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr T To, barrister Instructed by: Ms E Dening-Franklin SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10447 of 2004 Riverland Enterprises Pty Ltd v Baulkham Hills Shire Council

1 This is a class 1 appeal, No. 10447 of 2004 between Riverland Enterprises Pty Limited v Baulkham Hills Shire Council in regard to the refusal of a proposal at 52A and 54 Baker Street, Carlingford, to develop nine two-bedroom villas, a tennis court and barbecue area. 2 The site is quite large at 4005 sq m, but it has a high voltage transmission line easement across its southern side including a huge tower on-site. This restricts the area available for dwellings to the northern end of the site in an area of about 2100 sq m. Baker Street is on the high side of the land. The site slopes down diagonally about 6 m from its south-east corner on Baker Street down to the north-west corner adjoining 5 Ludmila Close and 56 Baker Street both single detached houses. 3 The north-west corner being the low point, there is a natural drainage land form from there diagonally through Nos. 2 and 4 Sun Valley Place which is a cul-de-sac below the properties. There is no easement through Nos. 2 and 4 nor a recognised watercourse. The cul-de-sac Sun Valley Place has frontage to a local park and within the park is a creek that carries stormwater from the locality. 4 A feature of the proposal that the objectors are concerned about, is that to drain the site's stormwater, the applicant has chosen an option to catch and divert overland flows of the site, and combine it with stormwater detention and discharge systems to a proposed easement along the common boundary of 3 and 5 Ludmila Close. That route gives access to a council stormwater pipe that goes down to the creek. 5 On the south boundary which also corresponds to the power line easement, are 13A and 13B Karingal Avenue, two houses on small lots, and 52 Baker Street, another single house on about an 800 sq m lot. 6 There are substantial trees on the site along the street frontage and on the transmission line easement and on the rear boundary with 3 Ludmila Close. 7 Baker Street gives access to the James Ruse Agricultural High School and other schools. The James Ruse school is almost opposite the site. Due to school traffic intensity at peak times, a traffic calming chicane is located adjacent to the south-east corner of the site. Baker Street connects through to Pennant Hills Road and is a bus route. 8 The locality consists mainly of detached houses on single lots. The evidence shows that areas of land along Baker Street that used to be zoned for single dwellings have been rezoned Residential 2 (a3) under the applicable Local Environmental Plan to allow medium density residential development. The proposal is one of the first medium density developments in the zone in this locality. 9 The original application was for ten villas and the modified scheme seeks nine villas. Also a proposed tennis court has been deleted and attic bedrooms to the villas have been deleted as the definition of a villa essentially means single storey. 10 The further amended issues in Exhibit 3 are: 1. Whether the proposal is contrary to cl 43 of the Baulkham Hills Local Environmental Plan 1991 . Particulars : 1.1 The proposal will result in the isolation of 56 Baker Street, Carlingford, with a land area of 714 sq m and thus will not allow the orderly development of the neighbourhood. 2. Whether the proposal is contrary to cl 48 of the Draft Baulkham Hills Local Environmental Plan 2004. Particulars : 2.1 The proposal will result in the isolation of 56 Baker Street, Carlingford, with a land area of 714 sq m and thus will not allow the orderly development of the neighbourhood. 3. Whether the proposal satisfies the aims and objectives of the Baulkham Hills Local Environmental Plan 1991 . Particulars : 3.1 The proposal does not satisfy the following aims (c) and (d) of the Baulkham Hills Local Environmental Plan 1991 . 3.2 The proposal does not satisfy objective (b) of the Baulkham Hills Local Environmental Plan 1991 . 3.3 The isolation of 56 Baker Street, Carlingford, does not enable the efficient utilisation of land and the removal of a significant amount of vegetation and trees will adversely impact the local environment and residential amenity. 4. Whether the proposal is contrary to the aims and objectives of draft Baulkham Hills Local Environmental Plan 2004 . Particulars: 4.1 The proposal does not satisfy aims (2) and (4) of the draft Baulkham Hills Local Environmental Plan 2004. 4.2 The proposal does not satisfy objectives (a), (b) and (e) of the draft Baulkham Hills Local Environmental Plan 2004 . 4.3 The removal of a large proportion of the vegetation on-site would have an unacceptable environmental and visual impact on the locality. The proposed species on the landscape plan are unacceptable and do not improve the locality. 4.4 The amenity of the locality is not enhanced by a development resulting in a significant loss of vegetation and because of the isolation of 56 Baker Street, Carlingford. 5. Whether the proposal is contrary to the zone objectives (a), (b) and (c) (i), (ii), (v) and (vi) of the Residential 2(a3) land. Particulars : 5.1 The proposal is contrary to objective (a) as it isolates 56 Baker, Street Carlingford, and thereby restricts the provision of suitable land for villa developments. 5.2 The proposal is contrary to objective (c) (v) and (vi) in that an unacceptable proportion of vegetation on the site is to be removed and the proposed species on the landscape plan are unacceptable and the residential and environmental amenity of the locality will be adversely affected. 6. Whether the proposal satisfies the requirement of the Baulkham Hills Developmental Control Plan 7 (Villas). Particulars : 6.1 The proposal does not satisfy the requirements of cl 5.11 (Open Space) as 80% of the units do not receive the required solar access to 50% of the courtyard between 9 am and 3 pm, and 20% of the units do not receive the required solar access for three hours between 9 am and 3 pm. 7. Whether the proposed development is considered to be in the public interest having regard to the submissions of the local residents. Particulars : Submissions in summary raised the following objectives: (a) Amenity to the area will be affected; (b) Increase in traffic and associated safety concerns for students attending nearby schools; (c) Positioning of driveways; (d) Location of car wash bay and visitor parking spaces; (e) Direction of natural watercourse at rear of Baker Street properties; (f) Request for the trimming of trees located close to the boundary with adjoining property; (g) Insufficient on-site parking; (h) Excessive number of villas proposed; (i) Density of the proposal, change to the character of the area; (j) Effect on local fauna as a result of removal of trees on-site; (k) Decrease in property values; (l) Development should be downsized or developed in keeping with the surrounding area; (m) Isolation effect of the proposal on 56 Baker Street Carlingford; (n) Noise; (o) Proposed easement and location of adjoining buildings misrepresented; (p) External appearance unacceptable; (q) Courtyards in the front setback impact on the streetscape; (r) Loss of trees; (s) Concept for 56 Baker Street unfeasible to share the driveway and visitor spaces with this development; (t) Privacy loss from the barbecue area and new units. 11 That is the end of the issues. 12 The respondent's evidence was heard from: + Ms D Tillett, town planner/coordinator for the council, + Ms S Lucas, tree manager coordinator for the council, + Mr R Wood, easements officer of Integral Energy.

13 Evidence was heard on-site from: + Mr N Levitsky, owner and resident of 13B Karingal Avenue, + Mr R Huang, objector and resident of 56 Baker Street, + Mr E and Mrs Berzins, objectors and residents of 3 Ludmila Close, + Mr C Baker, resident of 52 Baker Street, + Mr P and Mrs L Hallim, objectors and residents of 5 Ludmila Close.

14 The properties to the west of the proposal, being those in Ludmila Close, Karingal and Sun Valley Place are zoned Residential 2(b) which is primarily for single detached houses. The proposal therefore, is located on a boundary of the 2(b) and the 2 (a3) zones. 15 The applicant's evidence was heard from: + Mr B Goldsmith, town planner, + Mr J S Wallman, landscape architect, + Mr S Gattenby, arborist, + Dr T Brooker, traffic engineer, and + Mr K Taylor, licensed real estate agent. + Mr C Bartholomew, drainage engineer

16 Mr Levitsky said that he was now content with the amended proposal that had deleted a barbecue and shade structure and the tennis court, and an aboveground detention basin that would have removed most of the existing mature trees adjoining his boundary. He had been concerned about noise of activity and loss of vegetation adjoining his living room and outdoor living spaces. 17 In the amended proposal, most of the mature trees in the transmission easement were to be retained and the area improved as a private parkland with removal of weeds and underbrush and selective removal of trees and then supplementary plantings and recreational pathways with the barbecue area relocated away from the neighbours. 18 Mr Baker also said he would be content with the amended scheme so long as any new heavy shade trees were kept away from his boundary, as he valued solar access to his backyard and house. The site being on his north side, he already had an amount of shade from the existing trees. 19 The revised landscape plan in Exhibit C was hand annotated to change species and to note the trees near Mr Baker's and Mr Levitsky's boundaries to be removed or kept. There was consultation with Mr Baker during the view on-site and the other neighbours adjoining, concerning the existing trees. 20 Also, the access pathway to the villas that fronted Baker Street was a concern to the council landscape experts. The path endangered some existing trees nominated for retention, and some of the existing trees were not shown on the plans. A detailed survey of existing trees was tendered during the hearing and discussions proceeded between the landscape experts. The landscape plan was marked again, to relocate the path and to construct it as a raised timber deck pathway to minimise damage to tree roots. Also a front fence is now included with gates to the access pathway. This will prevent persons creating shortcuts through the vegetation. 21 Still in regard to landscaping, the neighbours at 3 Ludmila were concerned about potential adverse effects on their own turpentine trees along the common boundary and with the retention of some trees on-site. These were discussed and it was agreed the existing trees on No. 3 would not be affected and appropriate trees on the subject site would and could be retained. One exception is tree 63. It is on the common boundary with 3 Ludmila, just within the subject property. However it is a Bunya pine, a huge tree at first glance looking like a Norfolk pine. Its danger is that it grows huge seed pods about the size of a football and weighing several kilos. When they drop from high up, they are easily capable of killing an unlucky person below. It was agreed the tree must be removed. 22 No issue was raised in regard to health of persons living near the electrical easement. Integral Energy had advised in Exhibit 8 of conditions to be imposed on any consent to ensure safety. The applicant accepted them. 23 In regard to traffic, the revised plan for the single entry drive is now satisfactory to the councils. The concerns about safety in the high levels of traffic during peak hour on Baker Street were mentioned by the nearby residents. The proposal would add about five vehicles per hour at peak, compared to an existing 588 vehicles per hour at peak. The traffic engineering unit evidence is that the safety of the driveway at its entry to Baker Street and the low site generation of traffic, made the proposal acceptable and would have no discernible effect on existing traffic and safety conditions. 24 The observation could be made that if the council feared Baker Street is already exceeding its maximum environmental capacity, this fact should have been obvious at the time of rezoning the land along Baker Street for a change from single detached dwellings to medium density residential. 25 Appropriate road widening could have been incorporated in a development control plan to be implemented as redevelopment occurred. Inquiry of the respondent during the hearing showed that no such road widening is contemplated by the council. It is noted traffic engineering capacity of the road is not exceeded. It seems to me this aspect could not justify refusal of the proposal. If council is indeed concerned about Baker Street traffic, appropriate steps should be taken forthwith. 26 In regard to fears of overlooking of 3 and 5 Ludmila from the private courtyards of the four villas adjoining the common boundary, it is noted there is already a high boundary fence to No. 5 in particular that would prevent overlooking. Added to this, the courtyards are set back 2 m from the fence line with screen planting and the overland catchment drain between. The relative levels of the courtyards and a person's eye height compared to the top of the fence indicated privacy would be retained for the neighbours. 27 Number 5 has a concern for overland flows increasing from the site as it is the downhill property and currently has significant soakage during rains. They felt any stormwater easement should follow the natural landfall through their property and Nos. 2 and 4 Sun Valley Place to reduce that impact. The applicant's design revealed that all overland flows and roof stormwater would be collected up to the 1 in 100 year design storm and diverted to the council drains. This would mean far less soakage for No. 5 than at present, but it would mean in a storm greater than one in one hundred years, overland flow would occur down the natural fall of the land. This meets the normal authority stormwater management requirements. 28 The other particular concern of Nos. 3 and 5 Ludmila is the proposal for an easement along their common boundary to take the pipe for the 1 in 100 year discharge. The council posed a deferred commencement condition to require the establishment of the easement prior to any consent being activated. If that is obtained then council's only other requirement is to enlarge the existing pipe across the Ludmila cul-de-sac to a 375 mm size to take the 1 in 100 year flows. 29 Negotiations on the easement with Nos. 3 and 5 had not been successful. The applicant may or may not obtain an easement through Court action or further negotiation. 30 Some of the practical difficulties are that No. 5 is a new house and is built very close to the relevant boundary and is excavated about 1 m below ground at that point. The construction of the easement would mean demolition of a pathway and retaining wall and potentially in heavy rain, a surcharge close to the house. The owners of No. 5 were quite unhappy about the construction and the aesthetics and the potential for surcharge onto their land and possible flooding of their home. 31 Number 3 is concerned about potential underpinning or instability of their brick and concrete garage and driveway and the aesthetics of the proposal. In looking at the engineering drawings in Exhibit D it became obvious that although the proposed easement had a 375 mm pipe to take normal flows, it had above it an open channel to allow water to escape in the event of a pipe blockage. This is a normal engineering design. 32 However, the "typical drainage easement details" cross-section on drawing 04473CO4 Issue 3 showed there was reason for 5 Ludmila Closes' concern about potential flooding. The channel is shown as open on their side, so water surcharges would come into the excavated area around their house. Being a slab on ground construction, there is not much free board. There is no evidence to show any surcharges into this excavated area could get away before it built up enough to enter the house. Also the route of any surcharge would be generally overland flow across the yard space around the house of No. 5 instead of across the cul-de-sac or via the natural land form previously referred to through the north-east corner of No. 5 and down through Nos. 2 and 4 Sun Valley Place. The applicant agreed the design of the drain needed revision. 33 The residents of Ludmila Close noted that in the event of the easement pipe blocking in the cul-de-sac, the surcharge would be through the grate outside No. 5, and the existing situation in heavy rain would be worsened. The design of the cul-de-sac did not direct surface flows to the 2nd down stream drain grate on the opposite side of the road. In heavy rain it currently ponded outside 7 Ludmila and eventually overflowed down its driveway and into its garage. Although this had been complained of to the council for many years, nothing had been done. It would be worsened by the proposal. 34 In regard to the shadow impacts, they would be quite minimal and acceptable in regard to the neighbours. With the deletion of the attic bedrooms from the original design, the applicant had incorporated large clerestorey windows to the living rooms and kitchens of each unit that would ensure each got excellent northern sun into their interiors. 35 The council had raised concern about solar access to the private courtyards of the villas. The updated shadow diagrams in Exhibit B showed the north-south rows of villas meant units A1-A5 would get full sun mid-winter to the courtyards between 9am and noon, and then progressively be shaded with half the courtyard in sun about 1pm and all in shade by just after 2 pm. The courtyards of units B1-B4 would commence to get sun at 10 am mid-winter, have full sun just before noon, and continue with full sun all afternoon. 36 The council noted that the shadow diagrams did not show the fence shadows of the courtyards that would reduce the areas of sun in the courtyards below those shown on the plans. The controls require 80% of the units to get sun to 50% of their courtyard area between 9 am and 3 pm on 21 June and the remaining 20% of units must get three hours of sun to 50% of their courtyard area between 9 am and 3 pm on 21 June. Forgetting the fences, only units A5 and B4 could comply with the 80% of units requirements, and the other seven units could get sun for about five hours to 50% of their courtyards, but not 6 hours. With the courtyard fences included, only units A5 and B4 could comply. The courtyards would have to be much larger to achieve compliance with the Development Control Plan. They already exceeded the minimum size of 25 sq m area, all of them being 40 sq m in area or larger. It is noted that the same controls on solar access to the courtyards require 1.8 m high courtyard fences for privacy. 37 Ms Tillett and Mr Goldsmith agreed that including the fence shadows in any assessment is unreasonable. Mr Goldsmith said even without the fence shadows, the requirements set a very high standard. Ms Tillett agreed it is a high standard, but council wanted that. The original officer report on the Development Control Plan said four hours of sun to 50% of the courtyard area and council increased it and is entitled to do so. 38 She agreed the power transmission easement was a major constraint on the site and probably resulted in the applicant having to squeeze the units and courtyards into the north end of the site. 39 Mr Goldsmith said a major benefit to the residents of the proposal is that the transmission easement being landscaped as parkland with a barbecue area and pathways. It has full sun all year and is accessible to all residents. A person can get sun at any time of the day there, if the sun in the courtyards is not enough at any time. 40 The remaining major issue is cl 43 of the Local Environmental Plan, that is similar in the draft Local Environmental Plan. It says in effect, "a development cannot be approved if it renders an adjoining lot in the 2(a3) Zone incapable of being developed for villas because its site area is below the minimum 1000 sq m in cl 41."

41 This refers to 56 Baker Street which has an area of 714 sq m. Repeated negotiations with the owner and firm offers of purchase up to $640,000 were made and rejected, the owner wanting $760,000. Valuations obtained by the applicant did not support that figure. Neither the owner of No. 56, nor the council presented valuations to contradict that evidence. 42 The applicant accepted a condition of consent requiring a right of way free of any cost to the owner of No. 56 to allow vehicle and personal access over the entry and driveway of the proposal onto No. 56 plus one visitor parking bay on No. 52A. By relieving No. 56 of the need to provide driveway access and visitor parking, the applicant and Mr Goldsmith said No. 56 could develop three villas and achieve the maximum density permitted in the 2(a3) zone. The council could consider a development application for No. 56 to develop villas at any time once the right of way is created. 43 The experts often referred to No. 56 as becoming an isolated lot, which is a term that arises in other statutes but not in cl 43 nor in the Baulkham Hills Local Environmental Plan. The concept of isolation was put as arising because the only other neighbouring lot in the 2(a3) Zone to No. 56 had a dual occupancy existing and therefore was considered to be developed and excluded from further development. I noted that the lot which is the neighbour to No. 56 is on the corner of Baker Street and Sun Valley Place. It is considerably larger in area than No. 56, so if the latter could have the potential for three villas, combined they must be able to contemplate six or more villas in total. 44 In view of this, I disregard references to No. 56 as becoming isolated, and although it was not put to me, there is some justification to say there is potential for No. 56 and its northern neighbour to combine to give a site greater than 1000 sq m. 45 In this locality, any development for villas must have a next door allotment or two that are less than 1000 sq m. It would only be where there is no other adjoining lot in the same zone with some potential of amalgamation that cl 43 would operate. The unwillingness of owners to amalgamate could not activate cl 43 in my opinion. It seems to me that the provisions made by the applicant at no cost to the owner of No. 56 would render it capable of development for villas. 46 This is a distinguishing fact from the situations in the test case put to me, the most relevant test case being AVK Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 275. Although cl 43 only refers to cl 41 and makes no reference to cl 42, I find it difficult to accept that I cannot consider cl 42 and that I must accept cll 43 and 41 together create a prohibition of this development application. Clause 42, as Mr Goldsmith observed, is a provision for undersized lots and must have work to do. 47 Overall the three key issues in my opinion are: 1. the drainage easement; 2. solar access; and 3. cl 43 of the Local Environmental Plan. 48 In regard to the drainage easement, some solution to drainage of this site by way of easement must be found to enable some development. It is reasonable to allow that question to run its course under a deferred commencement consent. 49 In regard to solar access, it seems to me the Development Control Plan requirements are manifestly unreasonable in the situation of this appeal given the large area of communal open space on the site in the form of landscaped parkland, that would give complete access to sunlight in mid-winter and make up for any minor shortfall of private courtyards. In comparing what the subject development achieves with the AMCORD requirements for solar access to courtyards, it seems to me that the proposal as it stands, far exceeds the AMCORD requirements and provides more sun than would be achieved under that guideline. Therefore solar access to the courtyards is not sufficient in this particular application to justify a refusal. 50 In regard to cl 43 of the Local Environmental Plan, my reasoning as already mentioned, I hold as giving grounds for it not to justify refusal. The conditions in Exhibit 9 as hand annotated are imposed.

51 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Deferred commencement consent is granted to 9 villa homes at Nos. 52A and 54 Baker Street, Carlingford, as shown on drawings in Exhibit A Job No. PJS-03-3 Drawing Nos. DA01B, DA02B, DA03B, DA04B, DA05B, DA06B, by P J Spana Design and landscape plan Project No. 04.9.5 Drawing No. L1 by Wallman Partners as annotated on 7 August 2005 and further revised on 10 August 2005 in Exhibit C of this appeal. The development to be in accordance with those documents all as further amended by and built in accordance with the conditions in Annexure A hereto.

3. The exhibits are returned to the parties except Exhibits A, B, C, D, F, J, K, O, N, M, 3, 4, 8, 9, 10, 11, and 12.

      K G Hoffman
              Commissioner of the Court
              rjs

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