Trueclad Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 252

Land and Environment Court of New South Wales

CITATION : Trueclad Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 252 APPLICANT Trueclad Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10076 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Consent :- Conditions of consent Baulkham Hills Local Environmental Plan 1991 LEGISLATION CITED: Development Control Plan No 7 Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: DATES OF HEARING: 20/05/04 DATE OF JUDGMENT: 05/20/2004

APPLICANT Mr J Maston, barrister, instructed by Mr M Seymore, solicitor SOLICITOR Ross Selvaggio & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr Hogan-Doran, barrister, instructed by Mr M Saliba, solicitor SOLICITOR Coleman & Greig

JUDGMENT: Trueclad Pty Limited v Baulkham Hills Shire Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to impose conditions in approving a development application to erect villa housing comprising eight (8) units at Lot 3, DP 18476 and Lot 21, DP 635130, being Nos 192 - 194 Pennant Hills Road, Oatlands. 2 I have concluded that the application when assessed under s 79C of the Environmental Planning and Assessment Act 1979, and would be satisfactory. The land 3 The land is situated on the southern side of Pennant Hills Road, near Bettington Road at Oatlands. The land has a frontage to Pennant Hills Road of 25.455m and depth of around 68.55m and is subject to road widening across the frontage. Relevant planning controls Baulkham Hills Local Environmental Plan 1991, (BHLEP) 4 Under the BHLEP the land is zoned Residential 2(a3) and villa houses are permissible with consent. Development Control Plan No 7 – Villa Houses, (DCP7) 5 DCP7 states: Each application will be considered on the individual circumstances and merits of the case in terms of the stated objectives of the plan" and variations may be considered "where it may be demonstrated that the objectives of the plan are attained notwithstanding the variation. Setbacks - Facing Building 6 DCP 7 requires facing buildings to be setback an equivalent width of 2H where H = average height of facing building i.e. 10.4 metres. The plans indicate that there is a minimum distance of 6.8 metres between the garages. 7 Ms Johnston considered the application supportable for reason that: - · The variation relates to the separation between opposing garages; · There are no facing windows; · The variation does not compromise the privacy or amenity of units and will not result in overlooking; · The separation between the buildings provides adequate width for manoeuvring within the access driveway. Urban Design 8 Ms Johnston indicated that the application was assessed having regard to the Urban Design Guidelines adopted by the Council on 4 September 2001. The merits of the application in terms of urban design and design quality principles are: · The development responds to the attributes of the site and will contribute to the quality and identity of the area; · The massing of the built form and the proposed roof form is appropriate, both to the surrounding existing and future residential character; · The development satisfies the density requirements prescribed in DCP7 and responds to the availability of infrastructure, services and facilities; · The development provides a high level of amenity to all dwellings including adequate solar access, visual and acoustic privacy and units capable of adaptability. Drainage 9 The proposal being located in the Upper Parramatta River catchment an on-site detention tank is required. A deferred commencement condition is proposed to allow the applicant to apply for an easement over down-hill properties to provide for discharge of stormwater. 10 It is proposed to provide two (2) on-site storage tanks (below ground systems) to satisfy the council's requirements. 11 Ms Johnston was satisfied that the proposal would not result in the capacity of the downstream infrastructure being exceeded. The construction of OSD would result in a lower discharge rate than for pre-development. Traffic 12 After assessing the existing traffic environment, the impact on traffic of the proposal and cumulative traffic impacts, Ms Johnston was satisfied that there would be no need for any new infrastructure. 13 She noted that sight distance would be acceptable and access would be restricted to left in and out only with a central concrete median. 14 The Roads and Traffic Authority advised that a Road Widening Order under Section 25 of the Roads Act 1993 affects the land, and the RTA would not object to the development application based on property acquisition requirements, provided that all new structures are erected clear of the portion required for future road widening, and that all road works associated with the development are designed mindful of the needs of the future widening. This is proposed. The proposal and its history 15 Development application No 1924/03/HB was lodged with the respondent council on 25 November 2002 to erect 1 x 2 bedroom and 7 x 3 bedroom villa houses on the land. 16 Each three-bedroom villa would have a double garage, and the two-bedroom unit would be provided with a single garage and carport. Four visitor spaces are proposed off the central driveway. Vehicular access for Units 1 - 3 and 6 - 8 would be via a central driveway from Pennant Hills Road, and Units 4 and 5 would be accessed via an existing access driveway. 17 The proposal would be set back 10m from the existing front boundary and 6m from the proposed front boundary. The front courtyard fencing would not encroach the road widening area and would be compatible with the height, size and scale of front fencing for adjoining developments along Pennant Hills Road. Notification 18 The application was notified to nearby owners and occupants and the council received four (4) submissions. The issues raised in the submissions are summarised, as follows: Issue Comment Outcome Connection to the existing Assessment of the drainage This issue does not warrant drainage system servicing requirements of the proposed the amendment or refusal of Lots 22, 23 and 24 at the rear development shows that the the application. of Lot 21, is unsatisfactory as current easement is sufficient the volume of stormwater will to cater for the stormwater be in excess of the capacity of from the proposed the current 150mm pipe. development. The private road width of 4 The applicant has provided a This issue does not warrant metres does not allow or passing bay 9 metres in length the amendment or refusal of passing of vehicles and is a to allow for the passing of the application. safety concern. The private vehicles. road should be widened to 7 metres. The two double garages 4 visitor spaces are provided This issue does not warrant facing onto the private road with access from the central the amendment or refusal of have no provision for visitor driveway. DCP requirements the application. parking. are therefore achieved. Vehicle access off Pennant Traffic comments reveal that This issue does not warrant Hills Road will cause traffic left in /left out access only is the amendment or refusal of congestion and safety for to be provided to the the application. pedestrians. development. More existing trees should be Of the twenty-five (25) trees This issue does not warrant retained. on the site, eleven (11) of the amendment or refusal of these are indicated for the application. retention and fourteen (14) for removal. Of the fourteen (14) trees to be removed, three (3) are weed species. Council's Tree Management Co-ordinator raised no objection to the removal of the trees.