Sherbrook Group Pty Ltd v Hornsby Shire Council

The site

1. The site is a regular, rectangular shape, fronting 36.68m to Sherbrook Road, which forms the western boundary. The lot depth is 124.94m. The rear (eastern) site boundary adjoins Asquith Girls High School. The total area of the site (five amalgamated lots) is 4569.3m².
2. The site has a general fall towards the east. An existing drainage pipe connects to an easement directed through Asquith Girls High School, which the DA seeks to maintain access to.
3. Currently, the site has on each existing lot a single storey dwelling with driveway access to Sherbrook Road.

Relevant planning controls

1. The requirements of s 4.15(1) of the EPA Act are relevant for the Court's consideration, which must be satisfied for the grant of the DA under appeal.
2. The site is not located within defined bushfire prone land, and therefore the requirements of s 4.14 of the EPA Act are not relevant for the Court's consideration. This issue as raised by the objectors is considered resolved.
3. The site is located within the R3 Medium Density Residential zone, as described in the Hornsby Local Environmental Plan 2013 (HLEP). Pursuant to cl 2.3 of the HLEP, the proposed development is permissible with consent. The parties agree that the amended design of the proposed stormwater management system, with reliance on the existing easement, satisfies the requirements of cl 6.3, and this contention is resolved.
4. The parties agree that the proposed development complies with the relevant numeric development standards of the HLEP.
5. The Hornsby Development Control Plan 2013 (HDCP) is relevant for the Court's consideration of this appeal, and the parties draw the Court's attention specifically to Part 1, C2.2 (accessible design), and the following clauses in Part 3: 3.2.1 (character); 3.2.4 (setbacks); 3.2.5 (building form and separation); 3.2.7 (open spaces); 3.2.8 (privacy and sunlight); 3.2.11 (housing choice); and 3.2.14 (Key Development Principle, specifically Baldwin Avenue, Asquith Precinct).
6. The Australian Standard AS 4299-1995 Adaptable Housing (AS4299) is relevant for the Court's consideration, as it addresses the relevant principles regarding adaptability.

Evidence

1. The Court was provided written and oral evidence from the respondent's and applicant's planning experts, Mr Bruce Newbold and Mr Adam Byrnes, respectively. Mr Scott Walsh provided expert oral evidence on solar access for the applicant, and relies on his solar access report that supports the DA.

Does the proposed development contribute to the desired, future character of the area?

1. The Council contends that the design and resultant excessive yield of the proposed development results in poor internal amenity (dealt with separately below), inconsistent streetscape presentation and is therefore not compatible with the desired future character of the area. The site is contained within the Baldwin Avenue, Asquith Precinct.
2. The experts agree that the character of the area is defined as being under transition from low density to medium density development, two storey development with attics are common, and landscaped frontages and setbacks prevail. Buildings in the area are a mixture of materials, styles and finishes, which are reflective of the historic and current planning controls.
3. The local area is contained within the Baldwin Avenue, Asquith Precinct, as described in clause 3.2.14 of the HDCP. The development principles of this Precinct are described in the HDCP, which together with the relevant controls of the HDCP, provide guidance to assess the development's compatibility with the desired, future character.
4. Generally, the controls of the HDCP that inform the desired future character of the area include: setbacks; height; floor space ratio (FSR); landscape; open spaces; and building form and separation controls. The parties agree that the site has no FSR control and the proposed development satisfies the numeric height provisions in both the HLEP and HDCP. The experts disagree however, whether the other relevant controls to assessing character compatibility are achieved by the proposed development.
5. Mr Newbold states that the proposed development presents with a substantial bulk to the streetscape and throughout the site. He considers the height and width of the gable end walls on each building (Block) is uncharacteristic. Further to this, the juliette-style balconies and steps to the basement encroach into the limited side setbacks and 'extend' the sense of building mass. The proposed landscaping is insufficient to address the bulk and scale of the buildings to the streetscape, internally and across the side boundaries.
6. Mr Newbold also considers the location of the individual CoS's between the buildings are insufficient in size and poorly located to mitigate amenity impact to residents, particularly within the CoS and to the adjoining ground floor units.
7. Mr Byrnes considers the design of the proposed development, appropriate and responsive to the site constraints. The proposed landscaping between the buildings, and at the front/rear of the site provides a 'green separation' that is characteristic for the area. The 'H' design of the basements allows for deep soil insets to enhance the landscaping along the side setbacks and into the CoS's. The slope of the site is well responded to by the stepping down in elevation of the buildings that are separated at ground level by a CoS. Together with the proposed side setback landscaping, the extent of the development would not be perceived from the streetscape as unreasonable. The location of the singular driveway is also consistent with the future streetscape. He considers the gable end walls appropriate for the development and do not add bulk to the buildings.
8. Mr Byrnes considers the location and size of the CoS's between the buildings to be optimal for the sloping site and will reasonably serve the residents. He explains that the landscape design for the CoS will ensure privacy to ground floor units facing into this space and also enhance the amenity for the residents in a functional CoS. He accepts that the individual areas of the CoS between Blocks B and C do not comply with clause 3.2.7, prescriptive measure (g) of the HDCP that requires 50m2, however in total, the CoS equates to the areal requirement for open space.
9. The experts agree that the ground floor facades of all buildings and the first floor façade of Block A comply with the prescriptive measures in clause 3.2.5 of the HDCP. They also agree that the first floor facades of Blocks B and C do not strictly comply with the prescriptive measures in clause 3.2.8. The saw tooth design of the first floor facades (to capture northern sun), length of wall planes, and limited separation between the private open space (PoS) and balconies do not comply with the relevant controls. The separation between the unit blocks also constrains the area of the CoS.
10. I agree with Mr Newbold that the proposed design of the development is inconsistent with the streetscape, has unacceptable bulk and scale, insufficient landscape opportunity and is therefore not compatible with the desired future character of the area. I do not accept My Byrnes' rationale that because the site is sloping and has an east-west orientation, some amenity impacts and the proposed design are reasonable.
11. The prescriptive measures (g) of clause 3.2.7 for open spaces in the HDCP, clearly require that the principal CoS have a minimum area of 50m2. It does not suggest that individual areas of CoS can be calculated collectively to form the principal CoS. The purpose of the numeric requirement for a sufficiently sized CoS area is to ensure that the CoS is properly dimensioned and provides sufficient amenity to residents for both active and passive recreation with landscaping. A breaking up of the principal CoS into smaller areas between Blocks B and C does not numerically comply with clause 3.2.7(e) of the HDCP. I also find that the proposed areas of the CoS do not minimise hard surfaces as required in the HDCP. I accept the design of the indent between the blocks provides for deep soil that provides for canopy trees, however, the majority of the CoS area relies on planter boxes, gravel (to ensure root infiltration) and hard surfaces. The proposed CoS's between the buildings are not sufficiently sized or designed to provide for 'active' recreation, because of the proximity to ground floor units, reliance on planter boxes and extent of hard surfaces.
12. For these reasons, I find that the proposed CoS's between each building does not comply with the relevant prescriptive measures of the clause 3.2.7 of the HDCP, and as a result, the desired outcomes are not achieved.
13. I accept, based on the landscape plan, that the landscape outcomes of clause 3.2.6 of the HDCP are achieved.
14. I also accept the numeric setback controls of clause 3.2.4 of the HDCP are achieved, albeit with minor encroachments for stairs and balconies. However, due to the inadequate CoS's in the centre of the site and between each building, I find that the desired outcomes of clause 3.2.4 are not achieved because the building form is not well articulated to incorporate open space and separation between buildings. In addition, due to the proximity of numerous unit balconies directed to and overlooking the CoS's, which are under sized, the desired outcomes of clause 3.2.8 of the HDCP are not achieved, as reasonable privacy is not attained.
15. The open spaces in the development rely on the CoS's between the buildings, which will unlikely promote positive social interaction between the residents or private amenity due to their insufficient size and proximity to individual units, including bedrooms. A reliance on landscaping to improve the aesthetics and reduce any privacy concerns for ground floor units is given little weight in this assessment, consistent with the approach adopted by Senior Commissioner Roseth at [6] in Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91.
16. Further to this, I find that due to the reliance of the proposed development on inadequately sized and located CoS's between the buildings, the desired outcome for building form and separation, expressed in clause 3.2.5 of the HDCP is not achieved. The buildings are not sufficiently articulated in width and depth or separated by sufficiently sized garden areas. The non compliant wall planes of the buildings, as agreed by the experts, I find does not minimise bulk and scale, and therefore results in a development that does not contribute to achieving the desired outcome for clause 3.2.5.
17. After review of the expert evidence and submissions made by the parties, I find that the proposed development is not consistent, nor compatible with the desired outcomes of numerous elements of the HDCP that define the desired future character, specifically cll 3.2.4, 3.2.5, 3.2.7 and 3.2.8.
18. As a consequence, I find that the proposed development does not contribute to the desired future character for medium density housing in the area and is therefore does not achieve the desired outcome of clause 3.2.1 of the HDCP. Further to this, I find that the proposed development is inconsistent with the Baldwin Avenue, Asquith Precinct key development principles, as expressed in clause 3.2.14, because the new buildings are not well articulated pavilion forms that are separated by sufficiently spaced and lined by canopy trees.
19. Based on the evidence before me, I find that the proposed development is inconsistent with the requirements of subs 4.15(1)(a)(iii) of the EPA Act. I consider the proposed development is an overdevelopment of the site and not orderly, as demonstrated by the numerous non-compliances of relevant prescriptive measures and desired outcomes of the HDCP that relate to defining the desired future character. Therefore, I consider the proposed development is an overdevelopment, not suitable for the site and does not satisfy s 4.15(1)(c) of the EPA Act.

Does the proposed development provide sufficient amenity to future residents of the site?

1. The Council contends that the proposed design of the development results in adverse privacy and solar impacts to future residents of several units as proposed on the site. Further to this, the Council considers that the orientation of attic (bedroom) windows results in a poor outlook.
2. There is no contention that the proposed development results in unacceptable amenity impacts to adjoining properties, as raised by residents, and therefore this issue is not pressed. The contention of adequate cross ventilation to proposed units has been resolved by the amended plans.
3. During the hearing, the Council conceded that the amendments made to the landscape plans and architectural plans now relied upon by the applicant address the contention of privacy and noise to bedrooms on the (north and south) side boundaries. The provision of landscaping, restriction of access and privacy screens to prevent overlooking between these relevant balconies, CoS and adjoining bedrooms on the ground floor is considered sufficient to address this issue. Therefore, the parties agree that cl privacy in 3.2.8 of the HDCP is satisfied, with regards to the north and south facing bedrooms.

Solar access

1. The key amenity issue between the experts is whether the proposed development attains sufficient solar access to the living areas and PoS to a minimum of 70% of the units, as established in clause 3.2.9 of the HDCP.
2. The experts agree that the relevant provisions of the HDCP that determine sufficiency of solar access to a living room are ambiguous with regards to penetration of sunlight into the living area, and therefore have taken two different approaches to assessing this requirement.
3. In addition, they agree that the HDCP provides two different time references that could be adopted to assess sufficiency of sunlight to living spaces and PoS's. Clause 3.2.9 of the HDCP, describes a requirement of three (3) hours sunlight to (windows of) living areas and the PoS, whereas clause 3.2.14, and specifically the Baldwin Avenue, Asquith Precinct development principles, establishes a benchmark of two (2) hours of sunlight to living areas and PoS's.
4. The experts agree that the proposed development does not achieve the literal meaning of clause 3.2.9, whereby 70% of the units achieve 3 hours of unobstructed sunlight on 22 June between 9 am and 3 pm to living room windows and the PoS, irrespective of how much sunlight penetrates the living room windows. The experts also agree that the requirement of 'half of the living room' window does not necessarily ensure sunlight filters into the living space to provide sufficient amenity, i.e. sunlight may strike a wall or windows may be minimised to satisfy the control. The difference in where sunlight penetration should be measured between the experts is between striking a piece of furniture (that could be sat on), by the respondent and an area of 1m2 on the living room floor, by the applicant.
5. Neither of the parties have provided calculations in evidence to the Court based on the literal definition of clause 3.2.9 of the HDCP, specifically to half of the living room window area.
6. Mr Newbold explains that sunlight penetration in a living area should be able to strike a piece of furniture so that a person can enjoy the solar access. He estimates, based on the proposed furniture layout in the amended plans, that solar access on 22 June between 9 am and 3 pm, would only be enjoyed by a maximum of 18% of units, equivalent to 10 units, and therefore does not satisfy the desired outcome (a) of clause 3.2.9 of the HDCP. He estimates, using his rationale, that 43% of units would achieve the two-hour compliance of sunlight to the living area and PoS, as provided in clause 3.2.14 of the HDCP.
7. Mr Walsh explains that whilst he accepts that the proposed development would not comply strictly with the prescriptive measures for solar access in clause 3.2.9 of the HDCP, due to the constraints of the site, being east-west oriented and sloping, a modified approach to clause 3.2.9 is appropriate. He relies on the planning principles established by Senior Commissioner Moore (as his Honour was then) in The Benevolent Society v Waverley Council [2010] NSWLEC 1082 (Benevolent judgment) to amend the method of calculation of sufficient sunlight access. To this effect, for his calculations of sunlight access to the living area and PoS of each unit, he has increased the period of compliance to between 8 am to 4 pm, and calculated sunlight over a 1m2 area of the living room. Based on this approach, he considers that 71.4% of units receive three hours of sunlight, as opposed to 55.4% between 9 am to 3 pm. If the compliance period of two hours is accepted, then between 8 am to 4 pm and 9 am to 3 pm, he estimates that 85.7% and 76.8% of units will receive sunlight, respectively.
8. I do not accept the argument posed by Mr Walsh that the intent of clause 3.2.9 of the HDCP to achieve 'unobstructed sunlight access to at least half of the dwellings principal living room windows and principal private open space area' is unattainable on this site and should be obviated because the development could put in smaller windows that would achieve compliance with the sunlight provision. This could result in other amenity impacts including cross-ventilation.
9. I also do not accept Mr Newbold's interpretation of this clause which relies on sunlight to strike a piece of furniture that could be sat on and enjoyed by residents. Furniture can be moved to optimise internal amenity and the location is an individual choice of the resident. Therefore, this approach does not suffice.
10. I consider that the intent and desired outcomes of clause 3.2.9 of the HDCP are the first test for compliance, which neither of the parties have sought to provide because it did not serve their purpose. Instead, both experts have modified the approach based on their interpretation of what clause 3.2.9 of the HDCP is seeking to achieve.
11. Compliance must be assessed against the prescriptive measures of the HDCP when seeking to achieve the desired outcomes. The time period over which compliance is assessed cannot be arbitrarily modified to get a better result. I find there is no ambiguity in the intent of the HDCP, which seeks to measure compliance against an established period of measurement to provide sufficient internal amenity to residents. That is, between 9 am and 3 pm on 22 June.
12. I do however agree with the experts that there is ambiguity in the HDCP with regards to the sunlight compliance period, being either three or two hours, depending on application of either clause 3.2.9 or clause 3.2.14, respectively. In addition, there is ambiguity in the HDCP between clause 3.2.9 and clause 3.2.14, as it relates to the place of measurement within the living room.
13. I find that the requirements of clause 3.2.14 of the HDCP should be given weight in this assessment because it relates specifically to the area the site is located within, which considers the relational aspects of the area including slope. I however accept that the description in the Baldwin Avenue, Asquith Precinct principles, provided in evidence, is not complete due to potentially an editing error of the HDCP. There is however sufficient information in the Baldwin Avenue, Asquith Precinct compared to the other Precinct principle statements, together with the intent of clause 3.2.9 of the HDCP to inform the Court that unobstructed sunlight access should be assessed against two hours compliance and to the living area plus PoS. It is noted that clause 3.2.14 does not inform me on the proportion of units that would comply with this definition, however the experts agree that this should be 70%, consistent with clause 3.2.9 of the HDCP and other Precinct statements.
14. Based on this consideration, I accept the evidence of Mr Walsh that suggests 76.8% of units would attain two hours sunlight to 1m2 of the living area plus PoS, between 9 am and 3 pm on 22 June. Therefore, the proposed development complies with clause 3.2.14 and I find achieves the desired outcomes in clause 3.2.9 of the HDCP.
15. I accept, as posed in the Benevolent judgment at [144], that strict mathematical formulae is not the only measure of solar amenity. The benefits of solar amenity to residents should also not be forsaken for greater density and inappropriate design, as posed by Mr Byrnes.
16. Whilst accepting the site is constrained by its limited width dimension in an east-west oriented and east sloping block, I find that the design and density of the development should respond accordingly. I disagree with Mr Byrnes and Mr Walsh that the proposed design of the development is the best achievable for the site and that no better solar amenity could be achieved with a different design. I consider that a greater separation between the buildings and a less dense development would likely result in a greater solar amenity to residents of the site, although accept that solar access complies numerically with the prescriptive measure of clause 3.2.9 of the HDCP.
17. I find that the development as designed does provide sufficient solar access to living areas and PoS's to a sufficient proportion of units to satisfy the desired outcome (a) in clause 3.2.9 of the HDCP. Further to this, I find that the development principles in the clause 3.2.14 and the Baldwin Avenue, Asquith Precinct that relate to development siting and design to achieve two hours of daily sunlight are achieved.

Attic outlook

1. The Council contends that 24 units with an attic bedroom have a poor outlook due to their proximity to gable end walls, resulting in an unacceptable amenity. The remainder of the units with attic bedrooms have limited (keyhole) views resulting in poor solar and ventilation amenity or unacceptable roof plane outlooks.
2. Mr Newbold considers the outlook from the attic bedroom windows in Blocks B and C are compromised, with the centrally located units in Blocks B and C being the most constrained, and the attic windows on the 'outer-wings' facing inwards also constrained to keyhole views. He estimates that 44% of the attic units (equivalent to 16 units) are have a severely compromised bedroom outlook.
3. Mr Byrnes responds that there are no controls specific to attic window outlook in either the HLEP or HDCP. He considers that there are no privacy issues raised and that the design and location of the attic windows is appropriate for the proposed development. The attic bedrooms offer views to the sky, and the amenity is appropriate and acceptable for the attic bedrooms.
4. The HDCP in clause 3.2.3 describes an attic as 'any habitable space but not a separate dwelling, wholly contained within a roof above the ceiling line of the storey immediately below, except for minor elements such as dormer windows and the like'. Further to this, the prescriptive measures that relate to attic design are described in (j) and (l), below: "j. The design of attics should be as follows: • Any attic level should be contained wholly within the roof space; • Roof span should not be more than 15 metres; • Internal height should not be more than 3.5metres (measured from attic floor to roof ridge); and • Roofs should be pitched or setback from exterior walls and should not be pitched from any point above a verandah or balcony l. The design of dormer windows in any attic level should comply with the following: • Dormers should be setdown below the ridge line and setback from the side walls, • Dormers should not be wider than 2 metres and the sides of adjoining dormers should be separated by at least 2 metres, and • Preferably face the front and rear boundaries of the site."
5. The design of an attic is clearly established in the prescriptive measures (j) and (l) in clause 3.2.8 of the HDCP. They are intended to ensure the amenity of a room contained within the attic, which is considered habitable, is acceptable.
6. I agree with Mr Newbold that the proposed design of attic bedrooms does not provide an acceptable amenity due to poor outlook. The facing of the attic bedrooms on either side of the inner portions of Blocks B and C, results in an outlook that is constrained in order to maintain privacy. I find that the intent of perspective measure clause 3.2.8(l) of the HDCP, and specifically 'Preferably face the front and rear boundaries of the site' is to prevent adverse impacts in the outlook from attic windows, such as found in the inner block unit attic bedrooms. The central portions of Blocks B and C do not achieve this prescriptive measure, and this portion of the development appears as an overdevelopment of the attic level.
7. Based on the evidence before me in my assessment of amenity, I find that the proposed development is not consistent with the requirements of subs 4.15(1)(a)(iii) of the EPA Act. In addition, the excessive reliance on attic bedrooms and density of units results in an overdevelopment of the site. The proposed development is not suitable for the site and is inconsistent with s 4.15(1)(c) of the EPA Act.

Are the proposed accessible rooms adaptable?

1. The Council contends that the bathrooms of the proposed accessible units, and in particular Unit 7, are not capable of being made adaptable for the purposes of accessibility, as required under AS4299.
2. The parties agree that the proposed development designates five accessible units, located within Block A on the ground floor and identified as Units 2, 3, 5, 6 and 7.
3. To address the issues relating to potential for adaptation of the bathrooms for the accessible units, the applicant relies on the amended plans (Exhibits G and A) that show the dimensions for bathrooms, doorways and general circulation within these units.
4. The experts agree that the plans as amended demonstrate that the rooms and entry points are of sufficient width to ensure wheelchair access. However, the issue remains between the experts as to whether the bathroom in Unit 7 can be adapted for accessibility purposes without the need to remove walls and change the kitchen layout.
5. The requirements to ensure accessible units can be adapted or 'barrier-free' for persons with a disability are established in AS 4299 and cl 1C2.2 of the HDCP.
6. Clause 2.2 of AS4299 requires that any walls that are required to be demolished to provide accessibility should be non-load bearing and free of electrical/plumbing services. The intent of these provisions is to ensure the design of designated accessible units are such that alterations can be made at a later date should these units be required for persons requiring an accessible unit.
7. Based on the evidence, including the access report (dated 25 July 2018) supporting the DA and the amended plans, which show the dimensions of the units for accessibility, I am satisfied that the nominated accessible units are adaptable and consistent with the requirements of AS4299. No load-bearing walls need to be removed to provide accessibility. I accept that alterations can be made at a later date to provide accessibility without significant cost to the unit owner.
8. I am also satisfied that the relevant prescriptive measures and desired outcomes of cl 1C2.2 of the HDCP are achieved. The amended plans demonstrate that a wheelchair can access, turn and move within the accessible units, and the experts have explained that bathroom fixtures can be adjusted as required.
9. Based on the evidence before me, I find that the proposed development, with respect to accessibility, is consistent with the requirements of subs 4.15(1)(a)(iii) of the EPA Act.

Is proposed development in the public interest?

1. The Council contends that due to the potential adverse impact on amenity and incompatibility with the desired future character of the area, the proposed development is not in the public interest.
2. I find that, consistent with the determination made above, the proposed development is not in the public interest because it is does not contribute to the desired future character of the area, specifically the Baldwin Avenue, Asquith Precinct.
3. The submissions made in objection by residents following notification of the DA are resolved to my satisfaction, in my assessment of the evidence before me, except those that relate to character.
4. I find that s 4.15(e) of the EPA Act is not satisfied to grant consent to the DA under appeal.

Conclusion

1. The proposed development has been assessed by the Court, based on the evidence provided, including the DA's (amended) supporting plans, documents, expert reports and photographs.
2. I have considered the relevant statutory provisions in my assessment of this appeal. Whilst I accept that the proposed development complies with the numeric provisions of the HLEP, I am required to consider consistency with the relevant controls of the HDCP, which pursuant to s 3.42(1)(a) of the EPA Act give effect to the aims of the environmental planning instrument. I find that as the proposed development is not orderly, cl 1.2(2)(b) of the HLEP is not satisfied.
3. In my assessment, I am not satisfied that the proposed development is consistent with the relevant provisions of the EPA Act to grant consent to the DA under appeal, and specifically subss 4.15(1)(a)(i) and (iii), (1)(c), and (1)(e).
4. The appeal that relates to DA 1338/2016, is refused, pursuant to ss 4.16(1)(b) of the EPA Act.

Orders

1. Consequently, the orders of the Court are as follows: 1. The Court grants leave to rely on amended plans dated 31 July 2020, amended BASIX Certificate 759941M-04 dated 20 July 2020 and amended NATHERS Certificates with summary dated 19 July 2020. 2. The appeal is dismissed. 3. Development Application 1338/2016 which seeks demolition of existing structures, amalgamation of five lots and construction of a two-storey with attic development including 10 townhouses and a residential flat building with 17 ground floor units and 29 first floor units, all serviced by basement parking on Lots 1 and 2 in DP 7477423, and Lots 1, 2 and 3 in DP 883943, also known as 127, 172A and 174 Sherbrook Road, Asquith, is refused. 4. The exhibits are returned, except Exhibits A, F, 1, and 3, which are retained.

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: 12 August 2020