Burrough v Hornsby Shire Council [2005] NSWLEC 479

Land and Environment Court of New South Wales

CITATION : Burrough v Hornsby Shire Council [2005] NSWLEC 479

APPLICANT Rod Burrough

PARTIES : RESPONDENT Hornsby Shire Council

FILE NUMBER(S) : 10435 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Subdivison - erection of a new house - inadequate rear boundary setback - loss of privacy - impact on the character of the area - inconsistency with prevailing subdivision pattern - easement restrictions - visual outlook - amenity impacts

Hornsby Local Environmental Plan 1994 LEGISLATION CITED: Hornsby Residential Subdivision Development Control Plan Dwelling House Development Control Plan

DATES OF HEARING: 29/08/2005 EX TEMPORE JUDGMENT DATE : 08/29/2005

APPLICANT Mr G McKee, solicitor SOLICITORS McKees LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

29 August 2005

10435 of 2005 Rod Burrough v Hornsby Shire Council

JUDGMENT

1 This is a class 1 appeal No. 10435 of 2005 between Rod Burrough and Hornsby Shire Council in regard to refusal of a development application for a subdivision at No. 6 Castle Lea Court, Castle Hill, into two lots and the erection of a new house on the new lot. 2 A large house already exists on the site. It would be left with a lot of 762 sq m called Lot 151 and the second lot proposed Lot 152 is to be a battleaxe lot of about 570 sq m without counting the access handle. In that allotment is a large drainage easement 6 m wide serving as a 1:100 yr overland flow path from the Anglican Retirement Village to the south beyond the rear fence of No. 6. 3 The easement occupies about one-third of the area of proposed Lot 152 and runs along the side boundary of No. 4 Castle Lea Court leading to the cul-de-sac. The overland flow path continues across the roadway of cul-de-sac and then along the public drainage way to a creek somewhere to the north. The easement when seen on the plan in Exhibit 1 folio 146 is the only outlet for stormwater from the Anglican Retirement Village that is contained in its own valley with head catchment on Castle Hill Road. 4 The easement has a 1.5 m diameter pipe under the overland flow path. 5 The evidence is that overland flow would only occur during storms greater than the one in fifty years. 6 The new home on Lot 152 is two-storeys in the style of "rooms in the roof" and it is about half the floor space of the existing house on Lot 151, and by eyesight estimation about half the size of all the other houses in the cul-de-sac. It is confined to that part of Lot 152 that is out of the drainage easement. Evidence is that this area is about 300 sq m. In spite of this the only two numeric non-compliances raised are: - the rear setback minimum of 3 m is not met, whether the rear boundary is the common boundary with Lot 151 or the boundary with the Anglican Retirement Village. - The second non-compliance is the fact that the proposal is two-storey when one-storey is required under the Development Control Planfor battleaxe lots.