Peter McNamee v Baulkham Hills Shire Council [2005] NSWLEC 586

Land and Environment Court of New South Wales

CITATION : Peter McNamee v Baulkham Hills Shire Council [2005] NSWLEC 586

APPLICANT: Peter McNamee PARTIES : RESPONDENT: Baulkham Hills Shire Council

FILE NUMBER(S) : 10384 of 2005

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Site area - Streetscape - Visual Privacy - Solar access and design - Landscaping and open space - Driveways and car parking - Courtyards

Baulkham Hills Local Environmental Plan 2005, (BHLEP) Development Control Plan No 4 - Town Houses, (DCP4) LEGISLATION CITED: Development Control Plan No 12 – Parking, (DCP12) Environmental Planning and Assessment Act 1979, ss 79C and 97

DATES OF HEARING: 14/10/2005 EX TEMPORE JUDGMENT DATE : 10/14/2005

APPLICANT: Mr B Goldsmith, consultant town planner SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr P Vergotis, solicitor SOLICITORS: MatthewsFolbigg

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

14 October 2005

10384 of 2005 - Peter McNamee v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to refuse a development application to demolish an existing dwelling and to construct four, (4) x 3 bedroom townhouse at No 764 Pennant Hills Road, Carlingford, being Lots 1 & 2, DP 135965. 2 I visited the land in company with the parties on the morning of the day of the proceedings. 3 I have concluded that the application when considered under s 79C of the Environmental Planning and Assessment Act 1979, that it should succeed. The land 4 The land is situated on the southwestern corner of Pennant Hills Road and Moseley Street. It has a 54.8m street frontage to Moseley Street and a 16.8m frontage to Pennant Hills Road and a western side boundary of 22.8m, giving an area of some 1,193m2. 5 The land slopes away from Pennant Hills Road with a fall of 4.5m and 5.7m along the northern (Moseley Street) and southern boundaries respectively. 6 Carlingford, is predominantly residential in nature with some business uses occupying existing dwelling houses and a church along Pennant Hills Road. 7 To the north of the land, across Moseley Street, is an existing church with the main access driveway to Moseley Street. To the south and west of the land are dwellings occupied by businesses along Pennant Hills Road and residential dwellings to the southwest. To the east of the land, across Pennant Hills Road, is Carlingford Court Shopping Centre within the Hornsby Shore Council boundary. 8 The character of the area is likely to change from lower density to higher density as new residential developments are completed under zoning amendments. A development application of an apartment development has been lodged for adjoining site to the southwest of the subject land. Relevant planning controls Baulkham Hills Local Environmental Plan 2005, (BHLEP) 9 Under the provisions of the BHLEP gazetted 26 August 2005, the land is zoned Residential 2(al) and the proposal is permissible with consent. This plan repeals BHLEP1991. The aims of the recently gazetted BHLEP are: (a) with respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills, for present and future generations, and (b) with respect to the community of that area, to encourage a strong sense of community identity and economic well-being throughout Baulkham Hills through the development of local communities that are safe, liveable and offer a diversity of land use and economic opportunity, and (c) with respect to use of resources within that area, to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas that promote a high level of residential amenity, and (d) with respect to flexibility, to create a broad framework of controls that allow the opportunity for more detailed provisions relating to matter of local significance to be contained in development control plans. 10 Detailed objectives of the BHLEP are found in cl 2 p 6. 11 Clause 19 of the BHLEP –proscribes the minimum site area for apartment buildings, town houses and villas. Clause 20 of the BHLEP allows for a smaller minimum site area for apartment buildings, town houses and villas than allowed under cl 19. Clauses 19 and 20 state: 19. Consent must not be granted for development for the purpose of buildings of a kind specified in Column 1 of the Table to this clause unless the total area of the land the subject of the development application is equal to or greater than, the area specified in Column 2 in relation to those buildings. Table Column 1 Column 2 Apartment building 4, 000m2 Town Houses 1,800m2 Villas 1,000m2 20. Despite clause 19, consent may be granted to development, for the purposes of apartment buildings, town houses or villas, on land that is smaller than the area required by that clause if the Council is satisfied that: (a) Streetscape The form of the proposed structures is compatible with adjoining structures in terms of their elevation to the street and building height. (b) Visual and acoustic privacy The design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable noise levels and visual privacy. (c) Solar access and design The dwellings are designed to minimise energy needs and utilise passive solar design principles. (d) Landscaping and open space Significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas. Development Control Plan No 4 - Town Houses, (DCP4) 12 Clause 5 of DCP4 applies and sets out the development controls for site requirements relevant to this proposal. In particular, cl 5.1 provides details relating to site requirements including minimum site area and reference is made to the BHLEP. Development Control Plan No 12 – Parking, (DCP12) 13 Clause 4 of DCP12 sets out the development controls for parking. In particular cl 4.1.1(i) relates to stack parking and cl 4.7.1 provides details on parking design and layout. The proposal and its history 14 Development application No 641/2005/HB was lodged with the respondent council on 15 September 2004, to demolish the existing building and to erect four townhouses on the land. Strata subdivision would be part of a separate application to the council. 15 The application was submitted by Gelder Architect Group and seeks approval to demolish an existing dwelling and to construct four (4) x 3-bedroom townhouses with private courtyards within the front setback area and four individual driveways (now amended to two combined driveways) to Moseley Street. Residents' parking would be accommodated in four garages and one visitor parking space would be provided on the eastern driveway. A turning bay is proposed to be incorporated on the western driveway. 16 The proposed two-storey townhouses would have a building height to the eaves and ridges of less than 7.2m and 9m, respectively. A setback of 10m and 6m are provided to the Pennant Hills Road and Moseley Street frontages respectively. The side setbacks range between 1.5m and 4.5m. Notification 17 The application was notified to nearby owners and occupants for a period of fourteen (14) days commencing 24 September 2004 and the council received one (1) submission during the exhibition period. The application was also advertised in the local paper. 18 Council received further information on 21 October 2004 in response to the concern raised by a council officer. The application was referred to Council's Subdivision Control, Traffic and Parking, Building Control, Health and Environment Protection and Tree Management sections. The council's decision 19 By notice dated 23 November 2004, the council, under delegated authority refused the application for the following reasons: 1. The proposed development does not comply with Clauses 41 and 42 of Baulkham Hills Local Environment Plan 1991 [now cll 19 and 20 BHLEP] in relation to the minimum site area for apartment buildings, town houses and villas and variation to minimum site area provisions for apartment buildings, townhouses and villas. (Section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979). 2. The proposed development does not comply with the provisions of Baulkham Hills Development Control Plan No 4-townhouses in relation to: · section 5.1-site requirements; · section 5.10-building design and streetscape; · section 5.11-the open space; and · section 5.18-car parking. (Section 79C(1)(a)(iii) of the N S W Environmental Planning and Assessment Act 1979) . 3. The proposed development does not comply with the provisions of Baulkham Hills development control plan number 12-parking in relation to: · section 4.1.1(i)-stack parking; and · section 4.7.1(b); vehicles enter/exit site in a forward direction. (Section 79C(1)(a)(iii) of the N S W Environmental Planning and Assessment Act 1979 ). 4. The proposed development is considered to be an inappropriate development in an undersized site. (Section 79C(1)(a)(i), (1)(a)(iii), (1)(b) and (1)(c) of the N S W Environmental Planning and Assessment Act 1979 ). 5. The proposed development, due to its design and landscaping will have an adverse impact on the existing streetscape. (Section 79C(1)(a)(i), (1)(a)(iii), (1)(b) and (1)(c) of the N S W Planning and Environmental Planning and Assessment Act 1979 ). 6. The development is considered not to be in the public interest. (Section 79C(1)(b), (1)(c) and (1)(b) of the N S W Environmental Planning and Assessment Act 1979 ). The hearing 20 The appeal was filed on 21 April 2005 and is within time. 21 At the hearing the court heard evidence on behalf of the respondent council from: · Mr and Mrs Rosario, residents of No 21 Moseley Street, Carlingford; · Mr R Tse, Senior Town Planner of Baulkham Hills Shire Council. 22 The application was case managed by Dr J Roseth, Senior Commissioner and directions given. The applicant and the respondent met those directions. As a result of these directions much consultation took place between the parties culminating in various amendments to the proposal in the light of the issues. The issues 23 On 18 May 2005 the council filed a statement of issues: 1.0 Whether the proposed townhouse development (the proposed development') is contrary to s 79C(1)(a)(i),(ii) & (iii) of the Environmental Planning and Assessment Act 1979 (NSW) with respect to: (a) Baulkham Hills Local Environmental Plan 1991 (the 'BHLEP'). Relevantly the proposed development is contrary to cl 41 & cl 42 of the BHLEP; (b) Draft Baulkham Hills Local Environmental Plan (the `Draft BHLEP'). Relevantly the proposed development is contrary to cl 46 and cl 47 of the Draft BHLEP; (c) Baulkham Hills Development Control Plan No. 4 - Town Houses (the 'DCP'). Relevantly the proposed development is contrary to sections 5.1, of the DCP. Particulars 1.1 Baulkham Hills Local Environment Plan 1991 (the 'BHLEP'); 1.1.2 Undersized Development Site The proposed development fails to take into account of the minimum site area requirement (at 1,800 sqm for townhouse development) as stated in cl 41 of BHLEP. The area of the subject site (at 1,193 sqm) is only 66% of the required minimum site area of 1,800sgm for townhouse development. The design of the proposed development is severely compromised as a result of this deficiency. Clause 41 of BHLEP sets out the minimum site area for apartment buildings, town houses and villas as follows: 41. The Council must not consent to the development of land for a purpose specified in Column 1 of the Table to this clause unless the total area of the land the subject of the development application is equal to or greater than the area specified in Column 2 opposite that purpose. Table Column 1 Column 2 Apartment building 4, 000 square metres Town houses 1,800 square metres Villas 1, 000 square metres The proposed development does not have sufficient site area to provide an acceptable design to meet the site area requirements of the LEP. The design of the proposed development has been compromised due to the small site area with poor quality open space areas and inadequate consideration on traffic safety. The design of the proposed development fails to satisfy the heads of consideration in cl 42 of the BHLEP for variation of the minimum site requirement. Clause 42 of the BHLEP states: 42. Despite clause 41, the Council may consent to the development, for the purposes of apartment buildings, townhouses, or villas, of land that is smaller than the area required by that clause if the Council is satisfied that: (a) Streetscape The form of the proposed structure is compatible with adjoining structures in terms of its elevation to the street and building height. (b) Visual and acoustic privacy The design and location of rooms, windows and balconies of the proposed structures, and the open space to be provided, ensures acceptable noise levels and visual privacy. (c) Solar access and design Dwellings are designed to minimise energy needs and utilise passive solar design principles. (d) Landscaping and open space Significant existing vegetation will be retained and landscaping is incorporated within setbacks and open space areas. The proposed development fails to satisfy the requirements of this clause, in particular: (a) Streetscape The proposal involves a townhouse development with private open space/courtyards distributed to the front and rear due to limited space to accommodate all of the development. The presentation of the proposal to Moseley Street (primary frontage) is not satisfactory with 2m masonry courtyard walls and low landscaping provision along Pennant Hills Road and Moseley Street. The northern courtyard walls for the two units in the middle have no setback from Moseley Street and no articulation to provide visual interest and satisfactory landscaping. There is no visual connection between the proposed development and Council's footpath due to the 2m walls for courtyards. The proposal has four driveways to Moseley Street with substantial hard paving and limited landscaping. It is considered that the proposed development is of unsatisfactory design and will have adverse impact on the Moseley Street streetscape. (b) Visual and Acoustic Privacy The proposed development has the potential to overlook the adjoining sites and privacy of the adjoining residents. In particular, the property to the west at No.21 Moseley Street will be adversely affected due to the level difference between the courtyard for Unit 1 and No.21 Moseley Street. The proposed development fails to take into account of the noise impacts from Pennant Hills Road. The development adjoins Pennant Hills Road with a 10m setback from the property boundary. The proposed development is affected by traffic noise from Pennant Hills Road and the applicant has not provided sufficient information to demonstrate compliance with the Council's and EPA's requirements relating to noise attenuation. Unit 4 is particularly affected by high traffic noise levels as it has a direct frontage to Pennant Hills Road. The proposed development fails to provide an acoustic study to demonstrate the noise levels affecting residential units. The internal living areas, particularly the bedrooms on the upper level of Unit 4 are likely to be affected by excessive noise levels. Noise attenuation measures, such as double-glazing are likely to be required. Mechanical ventilation is likely to be required, as windows will remain closed to keep noise levels down. The provision of mechanical ventilation is in contrary to ESD principle No 5 to promote the use of energy efficient design in the design, construction and operation of residential development. (c) Solar Access and Design The proposed development fails to provide adequate amenity to the future residents of the development particularly in terms of solar access to the rear courtyard for Units 2 and 3. Both units will not receive any sunlight in winter (21 June) between 9.00am and 3.00pm. Although a courtyard to the front facing Moseley Street is proposed, it is unlikely to be heavily utilised due to its orientation to a busy street, small area and awkward shape. Poor solar access will also have adverse impacts on the growth/survival of the proposed turf in the rear courtyards. The rear courtyards are likely to be replaced by hard paving. The poor solar access to the rear courtyards will likely to slow the growth of screen planting along the boundary to provide effective privacy screening to protect the privacy of adjoining neighbours to the south of the subject site. (d) Landscaping and Open Space The proposed landscaping is considered unsatisfactory particularly to the north (Moseley Street) elevation. The provision of driveways, hard paving and courtyard walls to the north elevation limits the scope for extensive landscaping and treatment to soften the development. The proposal fails to provide an appropriate landscaping treatment for the development due to its size and dimensions. Furthermore, the restricted has limited any further scope for improvement to the amenity and quality of the private open space areas due to the limited width of the site. The proposed development is not capable to justify any variation to the minimum site area requirement for townhouse development. Further discussion of the above issues relating are detailed below.