Land and Environment Court of New South Wales CITATION : Moit v Hornsby Shire Council [2005] NSWLEC 639 APPLICANT George Moit PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11302 of 2003 and 11454 of of 2004 CORAM: Bly C Appeal :- subdivision - commercial development - SEPP 5 development - parking and sewage storage tank - landscaping - noise - bulk and scale. KEY ISSUES: State Environmental Planning Policy No. 5 LEGISLATION CITED: State Environmental Planning Policy No.1 CASES CITED: Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 DATES OF HEARING: 26/07/2005 - 27/07/05 and 2/11/2005 EX TEMPORE JUDGMENT DATE : 11/02/2005 APPLICANT Mr I. Woodward, solicitor of Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr G. McKee, solicitor of McKees Legal Solutions JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 2 November 2005 11302 of 2003 and George Moit v Hornsby Shire Council 11454 of 2004 This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 In relation to these matters preliminary findings were published shortly after the hearing on 26 and 27 July 2005. These findings are attached as Annexure B hereto. 2 Those findings indicate that the commercial development as proposed would be satisfactory and worthy of approval subject to matters involving the relocation of the sewage storage tanks, a report in relation to odour, landscaping and some other associated matters. These matters have now been resolved to my satisfaction and I therefore conclude that Appeal 11454 of 2004 should be upheld and the development application for subdivision and commercial development of 899-905 Old Northern Road, Dural, is determined by the granting of conditional development consent. There will be no order as to costs. 3 In relation to the application under State Environmental Planning Policy No 5 ("SEPP 5") the findings effectively require a number of changes to the proposal. Those changes have now been effected and I am now satisfied that conditional development consent can be granted. In particular, I note that building 3 has been amended to reduce its height in the manner suggested in the findings. 4 As indicated in the findings, the overall density of the development is well within reason and two alternatives for the relocation of the dwelling deleted from building 1 were suggested. The solution involving the provision of an additional dwelling in the roof space of building 1 has now been taken up. The findings require that if the alternative involving building 1 is to be taken up it would be subject to the bulk and scale of the building remaining largely unchanged. Also any resulting non-compliance with development standards in SEPP 5 may require an objection under State Environment Planning Policy No 1, Development Standards ("SEPP 1"). An objection under SEPP 1 has now been provided in relation to the height and storeys development standards in SEPP 5. 5 I have now considered the bulk and scale of the amended building and am satisfied that the change resulting from the additional dwelling will be entirely satisfactory especially as I expect that the appearance of the additional dwelling within this building will make little difference to the overall presentation. Similarly, I would uphold the SEPP 1 objection for the reasons contained therein also being satisfied that in the circumstances of this case it would be unreasonable and unnecessary that there be strict compliance with the development standards. 6 I therefore conclude that Appeal No. 11302 of 2003 and 11454 of 2004 should be upheld and development application No 199/2003 for three residential buildings with basement car parking under SEPP 5 at 897 Old Northern Road, Dural, is determined by the granting of conditional development consent. There will be no order as to costs. _______________________ T A Bly Commissioner of the Court ljr/rjs THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 26 and 27 July 2005 11302 of 2003 and George Moit v Hornsby Shire Council 11454 of 2004 PREMLININARY FINDINGS Annexure B The appeals 1 These two appeals relate to the following development of land at 899-905 Old Northern Road, Dural: o The demolition of two existing dwelling houses and an attached dual occupancy building; o The resubdivision of the land into two lots – lots 100 and 101; o The development of lot 100 fronting old Northern Road with 12 commercial units in six buildings, together with associated landscaping car parking and subdivision; o The development of lot 101 with 26 dwellings within three residential flat buildings with basement car parking and associated landscaping under State Environmental Planning Policy No 5 ("SEPP 5"); and o The utilisation and extension of an existing access way along the southern part of the site for access to both developments. 2 Having considered all of the evidence, the applicable statutory provisions and taken a view of the site and its environs and having heard from objectors to the proposals I have reached the following conclusions in relation to these applications. The commercial development 3 In relation to the commercial development I believe this to be satisfactory and worthy of conditional approval subject to the following: o The sewage storage tanks and collection area should be relocated away from the interface with proposed building 1 in the SEPP 5 development. A report dealing with odour is required. The vacated area should be landscaped. o The provision of landscaped area is, in terms of area satisfactory but landscaped areas associated with and providing screening for the car parking areas need to be significantly improved. This is required, taking into account the proximity of the car parking areas to the access way to the SEPP 5 development. The SEPP 5 development 4 In relation to the SEPP 5 development I believe this to be satisfactory and worthy of conditional approval, taking the following matters into account and subject to certain changes: o There are three dwellings in building 1 that could potentially be adversely affected by noise from the neighbouring industrial development if that development fails to comply with the applicable conditions of consent relating to hours of operation and maximum noise emissions. If these conditions are complied with noise from this development would not be a matter of concern that would require changes to these three dwellings. Mr Day said that the conditions are capable of being complied with. However for abundant caution these dwellings should be provided with soundproofing and air conditioning as agreed to by the applicant in case these conditions are not complied with and the council has difficulty in enforcing these. o Having considered the report of Mr Relf, the concerns raised in relation to accessability to transport, services and facilities are not warranted. I note that there are no significant concerns in relation to traffic movements in Old Northern Road. o The provision of services to the site and the on-site treatment of sewage and on-site disposal are satisfactory. The Sydney Turpentine Ironbark Forest community on the site will not be adversely affected. o In relation to the bulk, scale and location of buildings 1, 2 and 3, whilst agreeing generally with Dr Lamb's visual impact analysis, I nevertheless agree with Mr Moody's concerns about the height of building 3. I have decided that buildings 1 and 2 are satisfactory in terms of their bulk, scale and location, taking into account their proximity to existing industrial and proposed commercial developments in the residential village. However building 3 is unsatisfactory in terms of its height and its proximity to the northern boundary of the site, especially taking into account its distance of separation from the residential village and being in more of a rural, open grassed setting by comparison with that of buildings 1 and 2. o Building 3 will however be satisfactory if the dwelling comprising the third story and the lift overrun is deleted and the building is moved about five metres further to the south from the northern boundary of the site. o In relation to character and density I have had regard to the decision of Senior Commissioner Roseth and Commissioner Moore in Momentum Architects Pty Ltd v Hornsby Shire Council [2002] NSWLEC 252 o I accept that the overall density of the development is well within reason and would have no objection to the deleted dwelling being incorporated into the ground level of building 3 subject to the provision of an appropriate level of amenity for the relocated dwelling. Alternatively, an additional dwelling could be placed predominantly in the roof space of building 1, subject to the bulk and scale of this building remaining largely unchanged. o I understand that to facilitate the above changes to building 1 an objection pursuant to State Environmental Planning Policy No 1- Development Standards will be required in relation to the applicable height standards. I see no reason why such an objection should not be upheld, bearing in mind that this height standards have been underlying objective of protecting surrounding residential amenity and that there is no surrounding residential development that might be so affected. o Mr Pittendrigh's landscape design will, as it matures, provide an appropriate landscaped setting for the development. 5 I understand that the conditions of consent have been essentially agreed but should there be a disagreement I can resume the hearing to resolve any such disagreement. 6 Liberty on 24 hours notice is therefore granted in relation to the resolution of conditions should the need arise and also in relation to approaching the registrar for a further day to finalise the matters. 7 Finally, bearing in mind that the changes to the proposals represent improvements to them and notwithstanding that an SEPP 1 objection is required I do not believe that it is essential for the applications to be renotified. However I will leave this matter to the council to decide on the basis of its policy. ______________________ T A Bly Commissioner of the Court ljr 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.