Land and Environment Court of New South Wales CITATION : Milutinovic v Hornsby Shire Council [2006] NSWLEC 729 APPLICANT Goran Milutinovic PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10178 of 2006 CORAM: Hoffman C KEY ISSUES: Development Application :- Subdivision, retention of existing dwelling, erection of a new dwelling, solar impact, visual impact, character of area, bulk and heights, right-of-way, land slip potential, area of private open space Hornsby Local Environmental Plan Development Control Plan - Low Density Multi-Unit Housing Development Control Plan - Car Parking LEGISLATION CITED: Development Control Plan - Sustainable Water Sydney Regional Environmental Plan No. 20 State Environmental Planning Policy Building Sustainability Index 2004 Environmental Planning and Assessment Act 1979 CASES CITED: Weal v Bathurst City Council & Anor [2000] NSWCA 88; Remath Investments (No. 6) Pty Ltd v Botany Bay CC [2000] NSWLEC 137 DATES OF HEARING: 26-27/10/2006 EX TEMPORE JUDGMENT DATE : 10/27/2006 APPLICANT Ms A Pearman, barrister Instructed by: Mr B T Goldsmith, Of: Planning Services LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 27 October 2006 10178 of 2006 Goran Milutinovic v Hornsby Shire Council JUDGMENT 1 This is a class 1 appeal, No. 10178 of 2006, between G Milutinovic and Hornsby Shire Council in regard to the refusal of a multi-unit housing proposal with subdivision at 46 Sprigg Place, Mt Colah. The proposal is development application No. 1158/2005 which seeks approval for the subdivision of the existing allotment into two and retention of the existing dwelling and erection of a new dwelling on the subdivided allotment. 2 The site is described as Lot 22 DP 817656. It is a battleaxe allotment located on the high northern side of Sprigg Place. Sprigg Place cul-de-sac is at the base of an amphitheatre topographic form. Heaney Street is above the site giving access to houses up on the ridge. Houses on the slope of the amphitheatre are accessed either directly from Sprigg Place or via rights-of-way from it. 3 The subject site is bisected by a rock retaining wall on its upper slope. The portion of the site proposed to be developed experiences an average grade of 45 per cent including the rock retaining wall. It slopes down to a right-of-way connecting with Sprigg Place. The adjacent and downhill Lot 21 benefits from a restriction as to user pertaining to the eastern half of Lot 22 which restricts any development of the land within that portion. An existing two-storey dwelling with double garage under is located on the western portion of the subject allotment while the eastern portion with the restriction is vacant and contains a number of trees. The rear of the site includes disturbed bushland. 4 The surrounding land use generally supports low density developments that include two and three-storey houses following the natural slope of the land. The adjoining eastern dwelling in Lot 23 is three storeys. A major portion of that dwelling house on the eastern side is not visible from the subject site due to dense natural bush within the side portion of that property. 5 The site is zoned Residential (A) low density zone. The proposed use is defined as multi-unit housing under cl 7 of the Hornsby Local Environmental Plan and is permissible with consent. The proposal is subject to the provision of council's Low Density Multi-unit Development Control Plan, the Car Parking Development Control Plan, Sustainable Water Development Control Plan and s 94 Contributions Plan. Of particular relevance are the density, height, design, landscaping and private open space area by the Low Density Multi-Unit Housing Development Control Plan. 6 The proposal is also subject to the provisions of Sydney Regional Environmental Plan No. 20 and State Environmental Planning Policy Building Sustainability Index 2004. 7 The Issues in the appeal are: 1. Whether the proposed development satisfies Objective (c) of the Residential A Low Density Zone of Hornsby Local Environmental Plan as it does not provide for development that is within the environmental capacity of a low density residential environment. 2. Whether the proposed development complies with the Design Element of council's Low Density Multi-Unit Housing Development Control Plan. Particulars a) the design of the new dwelling is not consistent with the dominant character of the area, b) the design of the building is not sympathetic to the topography and other natural features of the land, c) the height, bulk and scale would have unacceptable visual impact on the character of the locality, d) the design does not minimise earthworks and disturbance to the land, cut and fill, and contribute to the reduction of the waste stream. 3. The proposed development does not comply with the height element of the Low Density Multi-Unit Housing Development Control Plan . Particulars a) the development site is a battleaxe lot and the Development Control Plan requires that the proposed development should not exceed 3.6 metres in height measured vertically from the natural ground level to the ceiling, that is generally not more than single storey, b) the proposed development does not maximise the privacy solar access and views of adjacent properties. 4. Whether the proposed development complies with the privacy element of Low Density Multi-Unit Housing Development Control Plan in that it compromises the privacy and enjoyment of adjacent properties. 5. Whether the height of the proposed new dwelling will result in an unacceptable increase to the level of overshadowing to the properties at 49 and 51 Sprigg Place. (Lots 20 and 21 respectively) 6. Whether the private open space areas proposed for the new dwelling are acceptable. Particulars a) the majority of the private open space area is located on the northern most part of the site and is not directly accessible from the habitable areas of the dwelling house, b) the private open space areas do not comply with the five metre minimum dimension requirement of the private open space elements of the Low Density Multi-Unit Housing Development Control Plan and the Residential Subdivision Development Control Plan. 7. Whether the proposed development complies with the Vehicle Access and Parking Element of the Low Density Multi-Unit Housing Development Control Plan which requires that vehicle access to and through development is simple, safe and direct and maintains the amenity of adjoining properties. Particulars a) the proposed development requires a common turning area to be designed to enable the eighty-five per cent vehicular sweep path in accordance with AS2890 – 1-2004 to undertake a three point turn, b) the minimum dimensions of car parking spaces should be 2.6 metres by 5.5 metres and c) longitudinal sections for both the entry and exit manoeuvres to each of the car spaces on proposed Lot 22 B are required in order to ensure the vehicles will not scrape their undercarriage. 8. Whether the setback of the proposed new dwelling from the existing Sydney Peppermint Tree, (Tree 5) located on the western side of the proposed new lot and from the existing strip of vegetation on the eastern boundary of the lot is sufficient to enable these trees to be maintained in a safe and healthy condition. 9 Whether the proposed development complies with the Land Sensitivity Element of the Residential Subdivision Development Control Plan and the Environmental Protection Element of the Low Density Multi-Unit Housing Development Control Plan which requires that development is compatible with land capability, Particulars a) the proposed new dwelling is located wholly within an area that contains a restriction on the use of the land requiring that no development shall be carried out on that part of the burdened allotment. 10. Whether sufficient information has been provided to satisfy the consent authority that the proposed development will not increase the risk of landslip on the development site and/or on adjacent land to the north, (Lots 10 and 11 Heaney Close). 11. Whether the proposed development complies with the density element of council's Residential Subdivision Development Control Plan, a) Lots are to be of sufficient area to allow for the siting of a dwelling and ancillary buildings including provisions for private open space, vehicle access and parking and to permit solar access, b) Lot sizes are required to enable dwellings and driveways to be sited to protect the natural or cultural features and respond to site constraints including topography, bushland, soil erosion, drainage and bushfire risks, c) Lots should enable the construction of a built form which is sympathetic to the established character of the area. 12. Whether having regard to the site constraints and characteristics, such as site gradients and potential site instability, the proposal is an overdevelopment of the site. 13. Whether having regard to the matters raised by the objectors the proposed development should be refused. 8 The hearing commenced on site and evidence was taken from objectors whose written submissions were later tendered at the hearing. Those speaking on site were: - Mr Ross of 49 (Lot 20) Sprigg Close, - Mr Seiler of 51 (Lot 21) Sprigg Close, - Mr Mackie of 40 (Lot 26) Sprigg Close, - Mrs Reville of 42 (Lot 25) Sprigg Close, - Mr Mattatall of 44 (Lot 23) Sprigg Close. 9 Numbers 40, 42 and 44 shared the right-of-way access with the subject property from Sprigg Close. 10 The evidence for the applicant was taken from: o Mr Spana, architect. 11 The parties had agreed that the Court should appoint joint experts for geotechnical engineering and for town planning and architectural assessment. They were Dr Redman for the geotechnical studies and Mr Newbold for the planning studies. 12 The concerns of those living on the right of way were additional vehicles using the narrow carriageway, privacy from overlooking, concerns about landslip and the bulk and visual appearance of the proposal. 13 Mr Seiler was concerned about landslip and the bulk and visual appearance and also overshadowing of his rear private open space and garden by the proposal. 14 The restriction on the use of that part of the subject property where the new house was proposed had originated from the subdivision of the land in about 1989. At that time landslip potential was identified by the experts Coffey and Partners and it had resulted in the restriction on the subject property. It was partly due to an apparent landslip that had occurred over part of the subject property from those in Heaney Close above. The result of that landslip had been the restriction. 15 In order to allow a new dwelling on the site there is a need to do geotechnical studies. The extent of the works based on the evidence of Dr Redman are still not agreed in order to ascertain the geotechnical requirements of any new dwelling, or for that matter external works to the dwelling, to create stability. The reasons for the restriction on the allotment still exist in my opinion after hearing the evidence. It is true that s 28 of the Environmental Planning and Assessment Act and cl 13 of the Hornsby Local Environmental Plan give the Court power to lift the restriction should it be justified. 16 Dr Redman said after assessment of the various studies by Coffey and Partners, and by Jeffery and Katauskas, and then proposed solutions for retaining walls on the property by Hutchinsons that there was an existing high risk to property and life on the subject site. The danger came from the fill and colluvium on the uphill portion possibly becoming mobile in a short time, if it became saturated, and by moving down the hill put pressure on an existing sandstone wall built of large sandstone rocks. There would be increased danger particularly if the rocks became mobile. The immediate danger was to persons in the existing house on the subject property and to possibly people below the rock wall or on the driveway right-of-way at the bottom. 17 He had not assessed the potential risk on 51 Sprigg Close occupied by Mr and Mrs Seiler. It was directly across the right of way below the restricted area of the site. 18 The solutions offered by the applicant and considered by Dr Redman was that the existing sandstone wall would have to be rock bolted into rock in the hillside and then covered in a Shotcrete covering on the downhill side attached to the rock bolts which would hold the wall together. There would be a need for a second wall up close to the northern boundary with the Heaney Close properties, in order to retain the potential landslip material on the uphill side. 19 The applicant showed three different options for a wall, all of which required further investigation in order to know if they would work. Dr Redman favoured one that indicated drilled piles along the boundary that would go down into bedrock and could be made high enough to stop any soil that might come down the hill. 20 The proposal showed a height of wall of about 2.4 m above the existing land slope. Dr Redman had done calculations on the volume uphill that might come down and had thought that the height of the wall should probably be 3 to 3.5 m high in order for the wall not to be overtopped in the worst case situation. 21 The applicant believed that suitable conditions could be imposed in order to require the further investigations necessary to ascertain how to overcome the landslip concerns. Dr Redman said that the investigations needed were essentially more geotech studies and core drilling to find out just where the base rock was on the slope along the length of the wall. The rock wall actually covered almost the full width of the subject allotment including behind the existing house. In addition a physical inspection of the boulder wall by uncovering it was needed, at the uphill side to find out what its structure is. At the moment one could only see the rocks on the downhill side. 22 After finding out those questions he said it was likely that a successful design could be done together with a design for the second uphill wall above the boulder wall. He said if that was done and those walls were then constructed it may be possible to lift the restrictions on construction of a dwelling on the subject site in the restricted area. 23 The respondent put to the Court that it could not defer essential considerations under s 79C of the Environmental Planning and Assessment Act and relied on Weal v Bathurst City Council & Anor [2000] NSWCA 88 and Remath Investments (No. 6) Pty Ltd v Botany Bay CC [2000] NSWLEC 137 Talbot J and Canyonleigh Bignold J. 24 The respondent put that the Court had to be satisfied that the geotechnical investigations would produce a design that would resolve the situation. Just as Dr Redman did not know at this point, the Court did not know, and therefore the restriction on development on the site could not be lifted. Any new walls or work on the existing wall would need a development application in themselves. 25 The applicant put that the question of landslip had been investigated to such an extent that the details could be resolved in conjunction with further investigations by a geotechnical engineer and a structural engineer. 26 The applicant made the point that in order to do those expensive works it was an appropriate incentive to consider a deferred commencement consent for the multi-unit housing proposal and subdivision, or if not the house, then just the subdivision. It was the combined multi-unit housing development and subdivision that was before me. 27 In considering the house that is proposed, Mr Newbold had two major concerns, one being the solar impact on No. 51 below the subject property; and the potential visual impact on the character of the area by the two retaining walls, at this stage of not completely known dimensions and heights. At heights between 2.4 and 3.6 m high and across the full width of Lot 22 they would be seen both from the street and from the various other houses around the amphitheatre topographical form. 28 In regard to the house proposed, it rose almost immediately beside the right-of-way for a height of about 6 m for carports. This included an excavation at 4.5 to 5 m into the hill directly off the right of way so that the cars could drive in. The height of the carport was necessitated by the steep slope of the hill. Above the carport was two storeys of bedrooms and living rooms with a roof terrace on top. The building then stepped up the hill to another area of a family or rumpus room with a master bedroom on top. Adjacent to that on the western side above the existing house on the subject site was proposed to be a deck and a plunge pool on top of the rock wall. Behind that would be the new wall at the boundary of the property which was also to be accessed by a stairway up to that boundary level to give access along the back boundary for landscaping and the applicant had indicated that area for recreational use too. 29 The applicable Development Control Plan on p 14 put that the maximum height permissible in multi-unit housing is to be 3.6 m from the natural ground up to the ceiling level. That is generally one storey as named in the issues. The control went on to say that it would allow two storey at the street front if there were no adverse environmental effects particularly on the neighbours. 30 The respondent put that the Development Control Plan was mainly done to address battleaxe lots and that is why single storey was the preferred height limit. The 9 m maximum height relates to street front units. Being a battleaxe allotment the 3.6 m height limit should apply. 31 The applicant put that the site constraints necessitated the sort of design that was proposed and that it created a justification for exceedence of the control. 32 In regard to solar access Mr Newbold had estimated the potential solar access midwinter to the rear garden and private open space and rear living room windows of the Seiler residence. Due to the ridge above and the orientation of the amphitheatre topography he estimated that it currently achieved less than the four hours minimum requirement in winter, under the Development Control Plan. The proposal being uphill and to the north of the Seiler residence would reduce that by about another one and a quarter hours in midwinter. He estimated they would get about two and three-quarter hours of direct sunlight midwinter. 33 Mr Spana had, during his investigations on site, specifically looked at solar access midwinter to the Seiler residence and estimated that there was some sunlight commencing at about 10.30 am into the rear garden and patio area and the sunlight continued until about 2.30 pm in the afternoon. In the latter hours of that period the sunlight would be reducing. He said from his positions of observation he could not estimate how much of those areas would have received sunlight in those hours. 34 In the evidence of either party it was certain that the proposal would reduce the Seiler residence solar access below four hours. The provisions of the Development Control Plan says in that case, if the solar access is less than four hours at the present time, a new development should not reduce the solar access below that level. 35 In applying the Pafburn tests it seems to me that the reduction of the sunlight in midwinter to approximately one and a quarter hours worse case or perhaps two and three-quarter hours at the best case was a major impact upon the enjoyment of the rear living rooms and private open space and garden of the Seiler's. 36 Number 51 by virtue of its location is very vulnerable to adverse impacts from a development on the subject property, in the location proposed, and of the dimensions in the subject design rising some 9 m above natural ground level. Due to the slope uphill it would be some 16 m above the patio level in No. 51. Mr Newbold was of the opinion that a better design could lessen the impact on the property. 37 It seems to me that the proposal causing the impacts appeared to not comply with several aspects of the relevant Development Control Plan and in such a case it should be given very careful consideration if any approval might be contemplated. 38 There was the other consideration too of the outlook from the rear garden and private open space of No. 51 where the bulk of the building would tower as I have mentioned some 16 m above it immediately across the narrow right-of-way at the rear of No. 51. This height would have a huge impact as seen from that location and would be quite overpowering. 39 Another aspect put to me was in looking at the total locality of land within DP 817656, the original subdivision layout had required small lots of around 600 to 650 sq m facing the cul-de-sac with the larger lots behind up to 1500 sq m being battleaxes. The battleaxes need that area to deal with the topographic constraints of the steep hillside around the amphitheatre. 40 The proposal is to create a small lot of similar size to those on the street front. The site has huge constraints by requiring the two large retaining walls and also having a large house compared to the lot size. This does not fit the character of what is termed the second tier of allotments around the cul-de-sac on the uphill side being the battleaxe large lots. 41 It was also noted that the basement garage requires four to 5 m of excavation when the Development Control Plan seeks 1 m maximum. The Development Control Plan also requires 120 sq m of private open space accessible off the living rooms of a multi-unit housing dwelling, and this area is not provided except for a deck of about 40 sq m area having the minimum 5 m dimension as required by the Development Control Plan. 42 Overall it seems to me that the applicant's invitation for the Court to approve the development in order to offer the applicant an incentive to finance the stabilisation works on the property is not relevant as a planning consideration. The non-compliances of the proposed house and the uncertainty about the geotechnical requirements and the structures required do not lead me to the conclusion that the proposal should be approved. Therefore the orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except exhibits 1, 2, 7, 10, 11, C, D, E, F, G, H, J and M. ___________________ K G Hoffman Commissioner of the Court rjs 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.