Shaw v Hornsby Shire Council

CASES CITED: Pafburn v North Sydney [2005] NSWLEC 444

APPLICANT Mr B. Shaw, litigant in person

LEGAL REPRESENTATIVES: RESPONDENT Mr T. Pickup, solicitor of Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10684 of 2005 Ben Shaw and Joanna Shaw v Hornsby Shire Council

JUDGMENT This decision was given extemporaneously on site. It has been revised and edited prior to publication.

1 This appeal relates to Development Application No. 755/04, which is for the erection for a two storey dwelling house on a battleaxe shaped allotment at 334 Malton Road, North Epping.

2 The site comprises Lot 3 in Deposited Plan 28373 and has an area of 1581 sq m being 1439 sq m excluding the area of the access way. The site is essentially level and is presently occupied by a single storey dwelling house which is to be demolished.

3 The locality in which the site is situated is typified by a predominance of single storey dwelling houses surrounded by well established landscaping and gardens. There are a number of two storey dwelling houses in the immediate locality none of which adjoins the subject land. The site is zoned Residential A (low density) under Hornsby Shire Local Environmental Plan 1994 ("the LEP"). In this zone dwelling houses are permissible with development consent. Applicable to the site is a maximum floor space ratio of 0.4:1. The proposal complies with this floor space ratio having a floor space ratio of 0.3:1.

4 The objectives of the Residential A zone involve the provision of appropriate housing including a variety of housing types compatible with a low density residential environment. The objectives also seek to ensure that development is within the environmental capacity of a low density residential environment. Environmental capacity is not defined in the LEP, but I understand this provision requires development to be sensitive to its surroundings in terms of character and also in terms of amenity impacts. 5 The site is also subject to the provisions of the Hornsby Shire Dwelling House Development Control Plan ("the DCP") which contains a number of standards relating to the form of development here proposed, including building height, open space, floor space ratio, landscaped area and setbacks. Leaving aside for the moment the storeys height control the proposal meets all of these standards.

6 Relevant to the principal issue in the case because the proposal is two storeys it does not comply with the applicable Design Element in the DCP and in particular the Prescriptive Measure that dwelling houses on battleaxe allotments should not exceed a single storey in height. I shall return to this standard later.

7 The application was advertised and three objections were received. In addition there were some six pro-forma type letters. The pro-forma letters expressed objections to the proposal for reasons involving non-compliance with the DCP as well as impacts on privacy, solar access and views adjoined by adjoining properties. The other three objections express concerns relating to the non-compliance with the storeys requirement in the DCP as well as concerns relating to the height, bulk and scale of the proposed building, privacy impacts, reduced solar access and loss of outlook.

8 Two of the objectors gave evidence during the on-site hearing: Mr B. Sellman of 332 Malton Road and Mr A. Klijn of Unit 1 No. 40 Boundary Road. They elaborated on their written concerns and whilst they pressed their concerns in relation to reduced solar access their predominant concerns involve the height, bulk and scale of the proposed building and the Enclosing effect of it. In addition, and this was of particular concern to Mr Klijn and Mr Sellman was the loss of outlook across the site towards the numerous mature trees in the immediate locality. Such outlook would be significantly reduced by the two-storey proposal. 9 Following a review pursuant to s 82A of the Environmental Planning and Assessment Act 1979, the council decided to refuse the application for reasons relating the to prescriptive measures and the objectives in the DCP, including the privacy element, the height element, the solar access element and the design element. Those matters involve overlooking, single-storey character, overshadowing height, bulk and scale. Prior to this review, the council refused an earlier version of the design. The s 82A consideration involved a modified design, which still did not meet the council's requirements. The application before the Court involves a further amendment which resolved one of the council's concerns that being the in the design element of the DCP that requires that dwelling houses not have a total length of greater of 24 m.

10 The Court was assisted in its consideration of the application by the evidence of the Court-appointed expert consultant town planer Mr N. Kennan and the applicants' consultant town planner Mr N. White.

11 Having considered the evidence and having spent some time inspecting the site and the neighbours properties together with the drawings of the proposal and an on-site re-interpretation of the shadow diagrams. I have reached the conclusion that the principal issue for the determination of the Court arises out of the height element in the DCP which provides that dwelling houses on battleaxe allotments should not exceed a single-storey in height. 12 It is relevant at this point to note that that same restrictive measure also provides that council will allow two-storey dwelling houses at the street frontage where they do not adversely impact upon the streetscape, privacy, solar access and views enjoyed by adjacent properties. Before considering the other provisions within the height element it is relevant to understand how the council intends that the DCP should operate and that is explained at page two thereof.

13 Clearly the DCP envisages situations where strict compliance with performance criteria or prescriptive measures are not met and therefore sets out a means of considering non-compliances: element objectives are statements that describe the end result required. Element objectives must be achieved whereas, by comparison performance criteria are general statements about how to achieve the objectives. In particular the DCP prescribes that: When an applicant proposes a variation to the prescriptive measures of the DCP (relevantly here the single storey control, justification for the departure should be provided with the application). 14 I do not understand that any specific justification addressed to this requirement was provided. However an explanation by the applicant of his and his family wishes for the site was provided during the hearing.

15 The element objective for height is as follows: Building height consistent with residential development in the local area that maximises privacy, solar access and views. 16 The relevant performance criteria includes: + Dwelling house height should complement the streetscape and character of the area. + Dwelling house height should not compromise the privacy of adjacent properties. + Dwelling house height should not unreasonably restrict sunlight to adjacent properties. + Dwelling house height should be sympathetic to the topography of the site and minimise cut and fill. 17 It was not in dispute that the proposal would not adversely affect the streetscape or the matter of topography and cut and fill did not arise. I have turned my mind to the questions of privacy and sunlight access and would conclude that the matter of privacy is not problematical. Overlooking is resolved by the provision of obscure glazing at the upper level. The use of obscure glazing is not an appropriate design solution to resolve overlooking such concerns being better resolved by more appropriate design, but it is not a matter of fundamental concern.

18 As for the matter of overshadowing as I have already indicated this has been a matter of some further investigation whilst on the site an action that would have been avoided had accurate shadow diagrams been provided before the hearing so that these could have been considered by the experts. Nevertheless, I am able to conclude that neighbouring properties are affected, particularly at 9am and 3pm in mid winter but the impacts are not determinative of the application. In reaching this conclusion I have taken into account that the sunlight access to those properties comfortably meets the solar access requirements of the DCP.

19 As for the matter of the character of the area I accept that given that the proposal would be little if at all seen from the public domain and given that there are other two storey dwelling houses in the locality I accept that it would not be inconsistent with the character of the area generally. 20 The performance criteria in the DCP do not respond to the element objective involving views although the prescriptive measures make reference to views enjoyed by adjacent properties. The DCP provides minimal assistance in understanding the element objective that requires the maximisation of views. Nevertheless, having spent some time on the property and the neighbouring properties I can understand what this requirement means in this particular context. That is, views can be explained by the concept of outlook and the outlook from a number of neighbouring properties is across low rise single storey development towards trees and sky. Many of those trees are significant mature trees that contribute significantly to the treed character of this locality. The loss of the outlook towards such trees was as I have already indicated of great concern to the neighbours.

21 This brings me to the critical question of whether the prescriptive measure involving the single storey height requirement can be set aside in the circumstances of this case. In this context Mr White was, in essence of the opinion that the non compliance with the two storey limited should be excused given the significant compliance with all of the other relevant controls and the minimal adverse impacts on neighbours in relation to building, height and bulk and solar access in particular. He also referred to the council town planner's report that recommended that the proposal be approved notwithstanding the non compliance with the storeys height control.

22 Conversely Mr Kennan both in his original report and in his response to that of Mr White argued that the single storey limit was of such importance that in the circumstances of the case and the consequences resulting from the non compliance, it should not be set aside. He also argued that there was no fundamental reason justifying the non compliance with the control and that instead the site was sufficiently large and flexible to enable a fully complying development that would meet the floor space requirements of the applicant to be designed and that such a design would have or could potentially have no adverse impacts on the neighbours at all. 23 Mr Kennan referred the Court to the decision of Senior Commissioner Roseth in Pafburn v North Sydney [2005] NSWLEC 444, where the Senior Commissioner expressed, in terms of the planning principle that deals with impacts on neighbouring properties, the following: …one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. 24 He then goes on to say: … that the skill with which a proposal has been designed is relevant to the assessment of its impact. Even a small impact should be avoided if a more skilled design can reduce or eliminate it. 25 And perhaps more importantly in this context: … an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. 26 It is on the basis of the proper application of this planning principle that I have decided that the application should not be approved. I have considered the impacts of this proposal and had the control, that is to say the prescriptive measure not been so particular, I might have been persuaded to approve the application. But the measure is clear and unambiguous with single storey development being required. However, given that the principle effectively tells us that that where a non complying proposal is not absolutely necessary and where there are adverse impacts, greater weight should be given to those impacts.

27 As the Senior Commissioner said, where there are impacts, failure to comply with planning controls is harder to justify than in circumstances where the development under consideration does not comply. In this case, whilst the overshadowing strictly complies with the controls, the proposal results in additional overshadowing of neighbouring properties that is simply not necessary and could in a different design could have been avoided. The issue of privacy has been resolved and I will say no more about it.

28 But the greatest concern leading to the conclusion that I have reached, involves with the presentation of the design to the neighbours especially its size and consequences in terms of the presentation of building bulk and the restriction of outlook. It was pressed upon me to distinguish between the character of the area generally and the character of the immediate environs of the site. I acknowledge this and accept its relevance in the context of the DCP when it speaks of the character of the area and the need for dwelling houses to compliment this. This is entirely applicable to the situation before me today. 29 When these matters are assembled together the consequences of the proposed two-storey building are such that having applied the principle in Pafburn it should not be approved.

30 Having reached that conclusion I should make it clear that I am inclined to the opinion that a different design for a house greater than single-storey on this site might be acceptable. Mr Kennan seemed to be of this view although his emphasis was more on a two-level building with rooms in the roof. I would not restrict a future design to such a degree but it may well be that in order to meet the element objective that speaks of maximising privacy, solar access and views such an approach may be necessary.

31 More particularly in relation to the existing design it seems to me that those elements of the building that are closest to the properties at No. 40 Boundary Road and No. 332 Malton Road at the upper level would, if a design of the kind before the Court today were to be pursued, would need to be modified by reduction in size and increasing setbacks. This should result in the presentation, to the south east and south west so that the buildings bulk in that location would be reduced. Similarly a reduction in height perhaps along the lines suggested by Mr Kennan could be considered. Otherwise the proposal, in terms of the landscape scheme with some modification perhaps a reduction in its formality (which seems not be consistent with the informal character of the existing landscape setting) would be satisfactory. 32 Finally I note other matters such as drainage, rain water reuse, carparking and the like are otherwise satisfactory.

33 The Orders of the Court are therefore: 1. The appeal is dismissed. 2. The Development Application No. 755/04 for the erection of a dwelling house at No. 334 Malton Road, North Epping is determined by the refusal of the development application. 3. Exhibit C is retained.

      T A Bly
      Commissioner of the Court
      ljr

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