Defence Housing Authority v Hornsby Shire Council [2004] NSWLEC 648

Land and Environment Court of New South Wales

CITATION : Defence Housing Authority v Hornsby Shire Council [2004] NSWLEC 648 APPLICANT Defence Housing Authority PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10831 of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Demolition of three houses - erection of two sets of semi-detached houses and one detached house - easement for stormwater - overlooking - height - bulk - character of locality versus character of proposal - the allotment for the detach house is undersize Hornsby Shire Local Environmental Plan 1994 LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948 State Environmental Planning Policy No. 1 CASES CITED: DATES OF HEARING: 05/10/2004 EX TEMPORE 11/01/2004 JUDGMENT DATE :

APPLICANT Ms S Duggan, barrister SOLICITORS Piper Alderman LEGAL REPRESENTATIVES: RESPONDENT Mr I Woodward, solicitor SOLICITORS Storey & Gough

JUDGMENT: - 33 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

1 November 2004

10831 of 2004 Defence Housing Authority v Hornsby Shire Council

JUDGMENT

1 This was a class one appeal No. 10831/2004 between Defence Housing Authority v Hornsby Shire Council in regard to the refusal of an application at Nos. 12, 14 and 16 Morgan Street, Thornleigh, to demolish three houses and erect five two-storey dwellings including one detached house and two sets of two semi-detached townhouses. 2 The development included subdivision of the existing three lots into five so that each new dwelling had its own Torrens Title allotment. 3 The site was just under 2,500 sq m in area so the resultant subdivisions would give a 500 sq m lot to each semi-detached unit and a 480 sq m square lot to the detached house. The minimum lot size for subdivision was 500 sq m. The lots were all slightly fan shaped as the site was on a curve in Morgan Street. They had frontages of about 12 m and a depth of about 45 m with rear boundaries of about 8 m. 4 Units 1 and 2 were attached and on the flattest part of the site. There was only a slight fall to the rear of about 1.5 m. 5 Units 3 and 4 were attached also and they were in a position where Morgan Street rose along their frontage although the houses themselves were on relatively flat land. The embankment in the front set back was between 2 and 3½ m high. From the bottom of the embankment to the rear boundary was again only about a 1.5 m further slope downwards. 6 Unit 5 the detached house was on a part of Morgan Street where the slope extended further into the allotment so that the house was actually on the slope and a little above units 3 and 4. The embankment rose about 3½ m up to the street. But once again, from the foot of the slope the backyard only fell about another 1½ m from the back of the house to the back fence. 7 There was a grove of mature trees in the front setbacks of units 3, 4 and 5 and one mature tree in front of unit 2. Some other trees existed near the side boundaries of the backyards of units 1 and 5 with some shrubs along parts of the back fences. 8 There was a battleaxe lot that adjoined the rear boundary of all five lots. It was No.18 Morgan Street occupied by the McMasters. Its entry drive was beside No.16 where proposed unit 1 would be. Number 18 occupied a large lot between the subject site and the creek. There was a pleasant single storey brick and tile house on it. The house faced the creek and bushland away from the proposed development, but its rear yard and deck off the family room and kitchen faced towards units 4 and 5 and its master bedroom and its balcony faced the rear of unit 1 of the proposal. 9 There was a gap between the driveway of No.18 and No.20 Morgan Street. The gap was due to a wide easement for large underground pressure mains that were connected to a pumping station across the creek. 10 On the other side of Morgan Street from units 1 and 2, was No.15 Morgan Street, an elevated single storey brick house on the high side of the road occupied by the Knights. 11 East of the site beside unit 5 a detached house was No.10 Morgan Street, a single storey brick house with its driveway adjacent to No. 5. As the land was rising No.10 was on about the same contour as the proposed unit 5. 12 Further down the east boundary of unit 5 were the rear fences of No.1 Dale Close and No.1A Dale Close, both single storey houses with smaller backyards than the proposal. And being down on the flatter land they were on about the same contour as the backyard as the proposed unit 5. 13 Mr Don at No.1A had not lodged a written objection, but onsite the Court heard his evidence and visited his property, as did the Court at the Knights and the McMasters. 14 The Court was told that the proposal had been changed to give individual identity to each building, but retained a brick and tile construction seen in most houses in Morgan Street. Also the Court was told the front entries of the semi-detached houses had been varied so only one in each set faced the street with its front door. And, the garages were double tandem style so that at first glance they looked like a double garage for one house. A passer-by could easily think they were single houses, not two semis. 15 At the rear, each of the five units stepped down to be single storey so that the visual bulk was reduced, privacy improved both between the units and with respect to the neighbours. Lattice screens had also been added to rear decks to further improve privacy. 16 The objectors had only seen some of these changes a few days before the hearing and some only on the day on-site. They were concerned about adequate notification to deal with them. In considering those matters the Court noted that all the immediate neighbours, and some others were present. They saw and heard the plans explained to the Court and accompanied the Court on-site during the hearing. The conclusion was reached that the changes were not so significant that their impacts could not be understood and addressed on the day of the hearing, and an adjournment for re-notification was not warranted. 17 For the most part the changes were responsive to the concerns of the objectors, and recommended by the Court appointed town planner Ms Laidlaw, who recommended approval of the proposal subject to appropriate conditions. 18 The Issues were: 1. Whether the SEPP No.1 objection seeking to vary the minimum allotment size standard under cl 14(2) of Hornsby Shire Local Environmental Plan 1994 ("HSLEP 1994") is well founded. 2. Whether the proposed development satisfies objective (c) of the Residential A (Low Density) Zone in the Hornsby Local Environmental Plan 1994 in that the development is not within the environmental capacity with low density residential environment, in view of the failure to comply with the minimum lot standard under the LEP. 3. Whether the proposed development will have an adverse visual impact on the streetscape by reason of the narrow widths of the proposed lots, the inadequate area of the proposed Lot 10 and the bulk and scale of the proposed dwellings. 4. Whether the proposed development complies with the "Design" element of the Low Density Multi-Unit Housing Development Control Plan in that the design of the buildings is not consistent with the dominant character of the area. 5. Whether the proposed subdivision pattern will result in lots which are inconsistent with the existing pattern of subdivision in the surrounding locality. 6. Whether the Consent Authority can be satisfied that a Part 3A Permit will be issued under the Rivers and Foreshores Improvement Act 1948 in respect of the works that are proposed within 40 m of the natural watercourse adjacent to the site.