Land and Environment Court of New South Wales CITATION : Cains v Hornsby Shire Council [2006] NSWLEC 234 APPLICANT Rohan Cains PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11258 and 11259 of 2005 CORAM: Murrell C KEY ISSUES: Appeal :- s 96(6) modification for the reconfiguration of an allotmentment created as a result of a subdivision in 1995. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 01/03/2006 and 02/03/2006 EX TEMPORE JUDGMENT DATE : 05/03/2006 APPLICANT Mr Rohan Cains, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr R. Graham, solicitor for Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 2 March 2006 11258 of 2005 Rohan Cains v Hornsby Shire Council 11259 of 2005 JUDGMENT 1 These proceedings are for two appeals under the Environmental Planning and Assessment Act (Act). The first appeal is in respect of a boundary adjustment, a s 96(6) appeal under the Act for the reconfiguration of an allotment created as a result of a subdivision in 1995. The second appeal is with respect to a proposed dwelling house to be constructed at the rear of the reconfigured lot on the land known as No. 68 Malton Road, Beecroft. 2 By way of background, the Court undertook a site inspection yesterday morning and had the benefit of hearing from the experts on-site, and also had the benefit of hearing from the neighbouring residents in terms of their objection to the proposed dwelling. From the residents there was generally no objection to the subdivision line, and that is often the case, but as will become clear in my judgment, a line on a map in terms of a subdivision is not merely a line, it has major ramifications in terms of further or subsequent environmental impacts. 3 The subject property, No. 68, contains a very substantial and well proportioned dwelling built in approximately the 1940s in an art deco style. It has been renovated by the current owners and it represents a very substantial dwelling on the subject land. By way of background, the subject house originally sat on what is now six allotments of land today. One subdivision occurred for three lots off the rear of the subject property in the 1970s, and in 1995 or thereabouts, the council consented to the front portion of the land being subdivided into three allotments. Council, in its assessment, considered that three allotments were acceptable even though the minimum width of each allotment was less than the average within the area, which is approximately 18 metres. 4 The three front allotments were created by way of the 1995 subdivision from a parcel of 2,090 sq m. The allotment to the east of the existing house known as 1001 is approximately 840 sq m and now contains a dwelling house. 5 The existing dwelling house, which is located in the centre of the previous large allotment is 682 sq m. The applicant now seeks a s 96 modification to the subdivision that was created in 1995 and which has taken effect. The applicant comes to this Court in these proceedings seeking a re-alignment of the middle block and the western block, such that the proposed size of the western block would be some 742 m, and the middle block with the original homes to sit on 740 square m. 6 The purpose of the subdivision realignment is to enable a dwelling house to be erected in the rear portion of the western lot and the additional curtilage to be provided around the western courtyard of the existing home. The applicant maintains that from a heritage point of view this would retain the quality of the special arrangement of the existing dwelling house to its outdoor area, and has also indicated that the major living space of the home, in particular the informal living space, is to the western courtyard. As such a dwelling erected next door to this space would compromise the feel of that courtyard and create concerns in terms of a building bulk next door to the existing home. 7 The council expert, Mr Moody, provided a statement of evidence to the Court and verbal evidence. And on behalf of the applicant, Mr Minto, provided a statement and verbal evidence. Mr White, The architect, for the proposed dwelling, also provided evidence to the Court. There was conferencing with respect to the experts. At the end of the day Mr Minto is of the opinion that a dwelling house could be erected at the rear of the western block, and this would ensure that the presence and ambience and space to the existing home is maintained as currently enjoyed. He is of the opinion that a building could be erected in the rear of the allotment which would not unreasonably impact on adjoining properties. 8 The Court also provided the opportunity for the applicant to undertake amendments overnight for the proposed dwelling form for the rear of the vacant allotment. In the amended plan there is a reduced floor plan and a smaller dwelling with one bedroom removed, and also the setback is increased to the property at No. 66, and there is a minor relocation of the proposed dwelling house to ameliorate the impacts on No. 66. 9 I will say at this stage of the proceedings that I have given careful consideration to the proposal. I can understand the applicant's desires to maintain the amenity, afforded to the western courtyard of their dwelling. At the same time, however, the applicant has the option of not selling the subject parcel of land and for it not to be developed to ensure the continued maintenance of that area of the property and for the continued use of the dwelling house as it now sits on the subject land. 10 By way of comment that 1995 subdivision with narrower blocks than generally in the vicinity was approved by the council and while not a matter for this Court in these proceedings clearly one can see this that despite the fact that there is an existing large dwelling on No. 68, the council nonetheless determined the 3 lot subdivision. However, in the Court's opinion, if one was to seek to maintain the ambience and the proportions of the subject dwelling house on the land, it would require a parcel of land which is at least equivalent to the 2 blocks of land that is the one house sits on and the vacant lot to the west. 11 The Court must consider the impacts of development on adjoining properties. While it is one thing for an applicant to seek to transfer the impact to another neighbour to ensure, the continued amenity of their property, the role of the Court is to assess what the impact of the proposed new dwelling would be on the surrounding properties. As I stated earlier, the land has been subdivided on 2 previous occasions to create six lots out of one lot. The configuration of the dwellings on the rear allotments, because of the slope of the land, is such that they are located relatively near to the right of carriageway which serves all of these properties, and which will serve the proposed new dwelling, as well as the existing dwelling on No. 68. 12 The proposal in terms of the impacts on No. 66, in the Court's assessment, is not acceptable. The applicant, as I stated, was given the opportunity to amend the plan and it is not necessary to verify the impacts on No. 66 of such a dwelling as even as amended, reduced in size and scale, No. 66 has a dwelling house erected traditionally with a front setback to Malton Road and a rear open space area. The proposal is unacceptable in terms of its impact on No. 66 with the built form in the vicinity, or next to, the open space area, and even with the amendments this does not ameliorate the impacts of the proposal to build at the rear of the subject lot. The subject proposal is for a dwelling house with open space to the front and a pool to the front. We have not needed to go down the path, in these proceedings, but if No. 66 was ever redeveloped with a 2-storey dwelling house I am sure there would be objections in terms of the overlooking and privacy concerns of the front open space area from the proposed building. 13 The Court was assisted by the experts and they undertook an exercise to look at a slight reconfiguration of the existing boundary line which would allow for an open space area for the existing dwelling house to be enlarged to be more commensurate with its size and scale. The Court is of the opinion, and it has been agreed to by all experts in these proceedings, that a dwelling house could be erected between No. 66 and No. 68, the existing home, with careful design in terms of ensuring that the rear yard, rear verandah area, of No. 66 is not impacted in terms of a 2-storey structure next to the rear portions of No. 66 and the rear garden. 14 As for most developments there would be impacts on No. 66 by the erection of a dwelling on the vacant lot but the role of the Court is to assess whether those impacts are reasonable or not. And with the benefit of the experts, I am satisfied that a dwelling house could be erected between No.s 66 and 68 with a minimum front setback of 10 m as provided for in the original subdivision application. 15 However, locating a dwelling at the rear of this property is atypical of the area generally and the concentration of a built form at the rear, impacts on not only the existing verandah of No. 66 but the rear open space of that is traditionally located such that it has a front and rear yard and if redeveloped a front and rear garden area would in al probability be maintained. The proposed dwelling at the rear of the subject vacant allotment would be overwhelming in terms of the open space area of No. 66 at the rear. 16 The privacy impacts on the other adjoining properties to the rear are such that the separation distances generally would not cause the same concerns to the Court except there was overshadowing of the property No. 68A and clearly, any proposed development should ensure that the solar access to this property is maintained, and relocating a future dwelling more to the middle of the allotment would achieved this. 17 There may be ancillary structures such as a single storey garage built at the rear of the subject vacant lot, and visitor parking as well as the parking for a future dwelling. The subject development application for the dwelling provides for a turntable as this could also be alleviated although it is not raised as an issue in these proceedings - but it could be alleviated by a design that is more sympathetic to adjoining dwellings, and one that has regard to the expectations of people living on an allotment of land of some 750 sq m. 18 The Court had the benefit, as we all saw on the view, of understanding what the impact of the proposal would be in terms of its bulk on No. 66. It is a generally held planning principle that even with dual occupancies, the dwelling in the rear should be of a single storey, and the proposal would inevitably lead to a 2-storey dwelling in the rear if there was a realignment of the subdivision. And this is not an acceptable outcome to concentrate the building such that it will not sit within a landscape setting commensurate with the heritage conservation area known as Cheltenham/Beecroft. 19 The applicant tendered the heritage DCP, and the DCP proposes to encourage sympathetically designed development: "In doing this the established heritage values and quality of the environment will be maintained or improved, resulting in attractive streetscapes and providing an appealing place to live… A heritage conservation area is one that is an area geographically defined which may have many different elements. They usually have a distinct visual unity and character which contributes to create a sense of place." That sense of place is a feeling of space within the Beecroft/Cheltenham area and erecting a dwelling house at the rear of the proposed vacant allotment would not maintain, or be sympathetic, in fact it would be antipathetic, to the objective of the Heritage Conservation Area. 20 It was pointed out by the respondent that this is not a heritage item, it is though a very good example of a dwelling house, as I stated, well proportioned and with the commensurate open space. My assessment is that to maintain that ambience, or the spatial relationship of that dwelling, it would be preferable not to proceed with building on the adjoining lot so that an appropriate heritage for the existing dwelling can be maintained. However, the applicant has the choice because the Court will in fact approve of a reconfiguration of the subject allotment in accordance with the scenario, that allows for an increase in the front open space area to the existing residue at No. 68. 21 That will then be a choice for the applicants as to whether they wish to reconfigure rooms within their dwelling house to take advantage of a large area of open space to the front of the dwelling with a slight modification in terms of the dwelling, to provide an interconnectedness with that space. 22 The applicant maintains that in terms of the heritage, the council's heritage committee - which is made up of councillors and others - provided comments in terms of a meeting of June 2005 and with respect to this development application, it stated: "The proposal is for demolition of an existing shed and construction of a dwelling on the property. The property is located within the Beecroft/Cheltenham Heritage Conservation Area listed under the provisions of schedule E, of the Hornsby Shire Local Environment Plan. The committee discussed the proposal and noted that the dwelling on the adjoining site is a copy of an earlier art deco building. The committee generally agreed that the form and location of the proposed dwelling would ensure that the proposal would not have an adverse impact on the significance of the adjoining dwelling to the east, or the surrounding heritage conservation area." 23 The above is a very limited assessment of the development application and clearly a dwelling located at the rear would not impact on the existing home at No. 68. It is unreasonable, however, to transfer impacts to adjoining properties, especially where the location of the dwelling is atypical in an area where we see dwelling houses which do have frontage to Malton Road, which have front spaces, or front yards, gardens, that can be utilised for recreational purposes and also rear gardens as well. 24 The Malton Road streetscape is one that does contain many large dwelling houses. However, one must also have regard to the fact that these sites are rather unique in that vehicle access is not gained from Malton Road, but rather vehicle access is via a right of way to the rear of the subject properties, and there is substantial landscaping, vegetation, trees, to the Malton Road frontage which provides the necessary privacy for using the front gardens for private open space purposes. Clearly this was also assessed in the original subdivision application in 1995. 25 The Court, in these proceedings, has considered the council's controls in terms of the Hornsby LEP, whereby there is a 600 sq m minimum allotment size for subdivisions. The difficulty is one cannot just take a figure of 600 sq m and where we have a subdivision which seeks to retain a substantial dwelling house, it may be necessary to provide a greater area. So mere compliance with minimums is not the test, in particular in this instance. 26 The applicants are seeking to maintain the ambience and grandeur of the dwelling house that we see on the site today, which is rather magnificent. While it has already been compromised by subdivisions in the past if it is to be retained then the applicants have the choice of not proceeding with the development of a dwelling house on the adjoining vacant lot. However, if they do seek to pursue the option of a dwelling house next door, then they cannot expect the amenity of the western courtyard to be preserved and they must then use the open space at the front of the dwelling open space and seek to provide a connection to that open space from the dwelling but the reconfiguration of rooms and relatively minor alterations. 27 Transferring impacts from one place to another, in particular where the location of a dwelling would be most atypical for the area and the construction of a 2-storey dwelling would impact adversely on adjoining properties is unreasonable. Dwellings in this area should continue to sit within a well landscaped area. The feeling of space is very notable within the Cheltenham/Beecroft Conservation Area, and squashing a building or the concentration of a building to the rear of the vacant allotment would be a most inappropriate outcome for the adjoining dwellings even though it may be more advantageous for No. 68 that is not the test. The Court must have regard to the impacts on all properties. 28 The council invited the applicant to provide an amended boundary line, or reconfiguration of the boundary line such that an additional 30 sq m could be provided to the existing home on the site. Although this is clearly not the applicant's preferred position. The Court, however is not satisfied that the proposal of the dwelling house and the s 96 modification to the subdivision as proposed by the applicant is appropriate. 29 As a fallback position the applicant however would, rather than having both appeals dismissed, seek to have the alternative scenario that became part of the proceedings and was commented on by the experts who, as I stated, all agreed that a 2-storey dwelling house, given some sensitivity in design to the adjacent properties at 66 and the existing home at 68 could be accommodated on the land providing a front open space area and a rear open space area. 30 The Court was referred to judgments in terms of views, in particular Tenacity v Pittwater C of the Senior Commissioner. However the case before me here is not just about views or an aspect it is about having a built form that would be overwhelming in terms of the adjoining property at 66 on its private rear open space. The Court was also referred to a judgment with respect to not putting applicants to expense in terms of reconfiguration or works to be carried out. However, in the Court's assessment the reconfiguration or the altering of the current dwelling to take the opportunity of availing itself of the wonderful northern aspect and open space to the front of the dwelling would be minimal compared to the impacts that would be created by the erection of a dwelling at the rear of the vacant lot. 31 Therefore, in my assessment, the development application for the dwelling house is determined by refusal of consent and the appeal with respect to the 96 subdivision reconfiguration is approved in accordance with the red line shown on exhibit 4 and a subdivision plan would then need to be submitted to the council in accordance with exhibit 4. 32 The formal orders of the Court are: 1. The Appeal No's 11258 and 11259 of 2005 in respect of the property known as 68 Malton Road, Beecroft, are dismissed. 2. The s96 modification to the subdivision is approved in accordance with exhibit 4 and the conditions in Annexure 'A'. 3. The exhibits are returned with the exception of exhibit 4, 8, 9, 10, 13 and 14. ___________________ J S Murrell 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.