Land and Environment Court of New South Wales CITATION : Chiha Holdings Pty Limited v Hornsby Shire Council [2005] NSWLEC 28 PARTIES : Chiha Holdings Pty Limited v Hornsby Shire Council FILE NUMBER(S) : 10676 of 2004 CORAM: Brown C Development Application :- impact on character streetscape KEY ISSUES: visual and acoustic privacy solar access Environmental Planning and Assessment Act 1979 Rural Fires Act 1997 LEGISLATION CITED: State Environmental Planning Policy No. 5 State Environmental Planning Policy No 65 DATES OF HEARING: 31/01/05 DATE OF JUDGMENT: 02/24/2005 APPLICANT Mr G Mc Kee, solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey and Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 24 February 2005 10676 of 2004 Chiha Holdings Pty Limited v Hornsby Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hornsby Shire Council (the council) of Development Application No. 374/03 for the erection of a housing development for older people or people with a disability at Harris Rd and Bryan Ave, Normanhurst (the site). 2 The site and surrounding area was inspected on the morning of the hearing with representatives from both parties. A number of local residents also provided their evidence at this time. 3 For reasons set out in the judgement, I have concluded that the appeal should be upheld and development consent granted subject to conditions. The site 4 The site consists of three separate lots, being Lot 12 in DP 23351 (16 Harris Rd), Lot A DP in 100837 (20 Harris Rd) and Lot 15 in DP 15105 (17 Bryan Ave). The site has a battle-axe configuration with Lot 12 having a 19.025 metre frontage to Harris Rd, Lot A having a 3.66 metre frontage to Harris Rd and Lot 15 having an 18.29 metre frontage to Bryan Ave. The total site area is 6083.2 square metres. 5 The predominant form of development in the area consists of single dwelling residential development with the majority being of single level construction. The site is surrounded by residential development with the exception of the northern boundary that adjoins Normanhurst Park. This facility contains playing fields and netball courts. 6 The site is currently vacant with a number of trees located on the perimeter of the site. The proposal 7 The proposal involves the construction of a housing development pursuant to State Environmental Planning Policy No. 5 - Housing for Older People or People With a Disability (SEPP 5) and the Strata Title subdivision of the individual units. The proposal comprises 25 self-care units and a community meeting room. A total of 23 units are located in three separate buildings located centrally on the site. These units comprise a single storey unit with an attic room, 11 ground floor units and 11 first floor units with attic rooms. Car parking is provided in a basement car park with access from Bryan Ave. The two remaining units comprise single storey villa units with access from Harris Rd (See Attachment 1). Relevant planning controls 8 The site is within the Residential A (Low Density) Zone under the provisions of Hornsby Shire Local Environmental Plan 1994. The proposed development is permissible within this zone however the application is submitted under the provisions of SEPP 5. 9 At the time of the hearing, SEPP 5 had been repealed by State Environmental Planning Policy (Seniors Living) (Seniors Living SP), however the transitional provisions in cl 6 of the Seniors Living SP capture the development application as it was made before 18 January 2004 and not finally determined before the commencement of the Seniors Living SP. Consequently, SEPP 5 continues to apply to and in respect of the proposed development as if it had not been repealed. 10 SEPP 5 provides numerical standards for height (cl 13(2) and cl 14(a)), floor space ratio (cl 14(b)), landscaped area per dwelling (cl 14(c)), parking (cl 14(d)), visitor parking (cl 14(e)) and landscaped area (cl 14(f)). There was no dispute that the proposed development satisfies these requirements. 11 Clause 25 provides that consent must not be granted unless the proposed development demonstrates that adequate regard has been given to a number of principles. The relevant principles are Neighbourhood amenity and streetscape (cl 25(a)), Visual and acoustic privacy (cl 25(b)) and Solar access and design for climate (cl 25(c)). 12 State Environmental Planning Policy No 65 - Design of Residential Flat Buildings (SEPP 65) also applies. The proposed development applies through cl 4 of the policy, being a residential flat building of 3 or more storeys. Clause 30(2) requires consideration to the given to the Design Quality Principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). The issues 13 The council filed a Statement of Issues containing 6 issues with particulars. These can be conveniently grouped into the following areas: 1) whether the proposed development satisfies the requirements of SEPP 5 in relation to neighbourhood amenity and streetscape, visual and acoustic privacy and solar access and design for climate. 2) whether the proposed development meets the Design Quality Principles of SEPP 65, particularly Principles 1, 2, 3, 4, 7 and 8. 14 In addition to the issues raised by the council, local residents raised further issues dealing with traffic, bushfire risk, stormwater disposal, access to facilities and disabled access. Expert evidence 15 The parties agreed to the appointment of Ms Deborah Laidlaw as the Court appointed town planning expert. While generally supporting the application, Ms Laidlaw recommended amendments to the plans. Amended plans were prepared to reflect the majority of Ms Laidlaw's recommended amendments and these became the plans for consideration by the Court. A further report was prepared by Mr Laidlaw on the amended plans. Neighbourhood amenity and streetscape 16 Clause 25(a) provides that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to neighbourhood amenity and streetscape. Specifically, the development should "contribute to an attractive residential environment with clear character and identity" (cl 25(a)(i)). Other requirements in this clause relate to wall heights and setbacks (cl 25(a)(iii)), relationship with the existing land form (cl 25(a)(iv)), compatibility with existing building heights at the street frontage (cl 25(a)(v)), sympathy with the existing building line (cl 25(a)(vii)) and sympathy with existing planting in the streetscape (cl 25(a)(viii)). 17 Ms Laidlaw states that the design of the buildings is generally consistent with cl 25(a)(i) as the proposed design fits reasonably well in terms of the range of architectural designs, stylistic features and materials already present in the area. The dwellings are configured as three separate buildings with the "short end" of each residential block facing existing residential development. Even though the housing in Bryan Ave and Harris Rd are predominantly single storey in scale, Mr Laidlaw states that the proposed development should not be seen as being fundamentally out of character or incompatible with the area because of its two-storey and attic form, considering the proposals compliance with the numerical requirements in SEPP 5. She also notes that recent developments in both streets include two-storey residential dwellings. 18 In terms of streetscape and the requirements of cl 25(a)(v), Ms Laidlaw sees the presentation of two villas to Harris Rd as demonstrating obvious compatibility with the streetscape. As the bulk of the development is located some distance from Harris Rd, it will not have a significant impact on the streetscape, particularly considering the generous landscaped setback provided. The presentation to Bryan Ave requires a different consideration as the floor of the development sits above the level of this street, albeit at a considerable setback. The access driveway to the basement car park also extends from the cul-de-sac head leaving an open vista to the proposed two storey northern building. While accepting that some changes have been made to improve this elevation of the building and the basement entrance, Ms Laidlaw indicates that she would have preferred additional lowering of the eave line or some design measures to mitigate a fairly bland western elevation. 19 In terms of the impact on Normanhurst Park, Ms Laidlaw states that the building will present as a pleasantly designed traditional building, of larger scale than is generally found in this location, but not so out of scale or out of character as to render it unacceptable. 20 Where the development has been designed to present a single storey scale, using an extended roof form, Ms Laidlaw states that this measure is generally consistent with intent of cl 25(a)(iii) because the roof form is a visually recessive element that achieves the same result as the stepping in of built form at higher levels. Also, as the floor plan of the residential units steps down with the fall of the land and the floors of the individual units remain close to natural ground level, Ms Laidlaw accepts that the proposal satisfies cl 25(a)(iv). 21 The form of the proposed development and particularly its two-storey and attic construction was a matter that was seen by residents as being inconsistent with the predominantly single storey residential dwelling character of the area. 22 On this issue, and with the benefit of the site view, I concur with evidence of Ms Laidlaw. The proposal has little impact on the streetscapes of Bryan Ave and Harris Rd because the majority of the development is located away from these street frontages. The villa units located at the Harris Rd frontage sit comfortably amongst the existing residential development with similar setbacks, landscaping and single storey construction. The Bryan Ave frontage is largely undeveloped except for the access driveway to the basement car park. While a building is capable of being observed along this access way, the considerable setback, the proposed landscaping and the most recent amendments to the driveway adequately minimise any potential visual impacts from Bryan Ave. 23 The location of attics within the roof space was seen by a number of residents as exacerbating the bulk of the proposed buildings however I agree with Ms Laidlaw's evidence that the attics do not substantially add to the bulk of the buildings. In adopting the recommendations of Ms Laidlaw, the attic areas were rearranged to reduce the overall height of the roof to the point where the inclusion of attics only marginally adds to the height of the buildings. The overall height is still below that the 8 m specified in cl 13(2) of SEPP 5. 24 I also accept that the design maintains reasonable neighbour amenity and appropriate character through the stepping of floor levels to closely follow the landform and the generous setbacks to the adjoining existing residential dwellings. 25 For these reasons, I accept that the proposed development demonstrates that adequate regard has been given to the principle of neighbourhood amenity and streetscape, pursuant to cl 25(a) of SEPP 5. Visual and acoustic privacy 26 Clause 25(b) provides that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to visual and acoustic privacy. Specifically the proposal should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping (cl 25(b)(i)) and ensuring acceptable noise levels in internal living areas and sleeping areas (cl 25(b)(ii)). 27 Ms Laidlaw identifies potential privacy impacts associated with the external walkways to the proposed units at the ground level and first floor level. In her assessment, potential privacy impacts at the ground level are satisfactorily addressed with the use of planter boxes and the partial screening to the outside edge of the walkway. Her agreement is however subject to providing the detention pit as a rainwater tank so that water can be pumped to provide irrigation for the planter boxes. 28 Ms Laidlaw's privacy concerns at the first floor level originally related to the potential to look into the units from the external walkway as no landscaping or screening was provided. The amendments provide for the ramps to be setback further from the units, the provision of further fenestration, the adjoining studies provided with high sill windows and the provision of a low wall and planters adjoining living spaces. While expressing the view that greater improvements would have been preferred, she accepts the amendments address the issue of visual privacy at this level. Again, her acceptance of the amendments is based on the use of the rainwater tank to provide irrigation for the planter boxes. 29 On this issue, I agree with conclusions of Ms Laidlaw. The amendments adequately address any issues of privacy at the first floor level. The increased separation between the walkway and the buildings when combined with additional landscaping and high sill windows to the studies provide an acceptable solution to the concerns initially expressed by Ms Laidlaw. While it was suggested that an amended design, incorporating the walkway into the building form, would be a more desirable solution it is not necessary to further consider this option because of the amendments to the proposed walkways. 30 A number of residents raised concern over the potential overlooking from the site into their properties however these concerns cannot be supported as the design provides few, if any opportunities for overlooking through the selective placement of rooms and windows on the elevations adjoining existing residential development. The proposed setbacks exceed 6 m and with the proposed landscaping, any impacts on privacy could not be seen as significant or warranting any amendments to the design. 31 While not raised as a specific issue, concern was raised at the potential overlooking from the first floor balconies into the courtyards of the units below. In acknowledging that the opportunity exists, I accept that sufficient area is available in the ground floor courtyards, below the first floor balconies, to provide an acceptable area of privacy for the residents of these units. This is not a matter that would warrant the refusal of the application or any amendment. 32 Ms Laidlaw notes that living rooms in one unit are to be located next to bedrooms in the adjoining unit. While the Residential Flat Design Code recommends against this configuration, Ms Laidlaw suggests an appropriate acoustic standard could be achieved through the method of construction of the party wall and this may be imposed as a condition. I concur with this conclusion. 33 For these reasons, I accept that the proposed development demonstrates that adequate regard has been given to the principle of visual and acoustic privacy, pursuant to cl 25(b) of SEPP 5. Solar access and design for climate 34 Clause 25(c) provides that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to solar access and design for climate. Specifically, the proposed development, where possible, should ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space (cl 25(c)(i)) and make best use of natural ventilation, solar heating and lighting (cl 25(c)(ii)). 35 Based on the shadow diagrams provided by the applicant, Mr Laidlaw notes that all ground floor units receive at least five hours of solar access over at least 50% of the face of the living room window. When compared to the requirements in the Residential Flat Design Code the proposal performs well in terms of solar access to living rooms. 36 In terms of solar access to private open space, Mr Laidlaw notes that the private open space for all units will receive solar access to at least 66% of the "deemed to comply" minimum private open space for at least three hours at midwinter. On this basis, the proposal performs reasonably against best practice guidelines, including both the Residential Flat Design Code and AMCORD. 37 For these reasons, I accept that the proposed development demonstrates that adequate regard has been given to the principle of solar access and design for climate, pursuant to cl 25(c) of SEPP 5. SEPP 65 38 Ms Laidlaw states that the principles in SEPP 65 has been taken into account in the consideration of the matters raised in the preceding paragraphs, including the relevant sections of the Residential Flat Design Code. 39 She notes that Part 03 .Building Design of the Residential Flat Design Code provides a Rule of Thumb that the back of a kitchen should be no more than 8 m from a window whereas the proposed development provides for distances ranging from 9.7 m to 10.5 m. In considering this, I am not convinced that this is a serious breach as the departure is not numerically significant and the objectives of providing an acceptable internal layout are still satisfied. Resident objections Traffic 40 Traffic was an issue raised by a number of residents. The report prepared by council officers on the development application contained adverse comments on the traffic implications of the proposal. These concerns however, did not form a reason for the refusal of the development application nor was traffic raised by the council as an issue in these proceedings. 41 Mr Pickup, the councils advocate, submitted to the Court that traffic was not raised by the council as an issue as the traffic generation from the proposed development is similar to the traffic generation from the recent approval of a 9 lot residential subdivision of the site. 42 Ms Laidlaw was requested to comment on the potential traffic generation of the proposed development when compared to the recent subdivision approval and despite a lack of notice to address this issue, confirmed the submission of Mr Pickup. 43 On this basis, the traffic generated by the proposed development could not substantiate a reason for refusal. Bushfire risk 44 The development application was accompanied by a Bushfire Assessment Report that concluded that there were no matters that would prevent the development of the subject site from proceeding in full accord with the current guidelines for building in bushfire prone areas. Additionally, the suitability of the proposal was confirmed by the issuing of a bush fire safety authority in accordance with s 100B of the Rural Fires Act 1997 by the NSW Rural Fire Service. 45 On this basis, the bushfire risk created by the proposed development could not substantiate a reason for refusal. Stormwater disposal 46 Stormwater disposal was not an issue raised by the council but was addressed through conditions. In the absence of any evidence to suggest that this was not the appropriate means of dealing with this issue, I accept that the proposed conditions will address the council's requirements. Access to facilities and disabled access 47 Mr Mark Relf addresses the access to facilities and disabled access requirements in SEPP 5 in a separate report. He states that the development complies with the accessibility requirements of SEPP 5 in all respects. As his evidence was not challenged, I accept that the proposed development satisfactorily addresses the access requirements. Conditions 48 There was general agreement on the draft conditions with the exception of the landscaping requirements. The council sought a deferred condition whereas the applicant proposed the same condition but as a general condition. 49 As landscaping was addressed at the hearing through a specific landscape design and is essentially a matter of detail, I accept that the condition can be a general condition of approval. Orders 50 For the foregoing reasons, the Orders of the Court are: 1) The appeal is upheld. 2) Development Application No. 374/03 for the erection of a housing development for older people or people with a disability at Harris Rd and Bryan Ave, Normanhurst is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 2, 5, A, C and D. ___________ G T Brown Commissioner of the Court 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.