Land and Environment Court of New South Wales CITATION : Depasquale v Hornsby Shire Council [2006] NSWLEC 823 APPLICANT Steven Depasquale PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10648 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan 1994 LEGISLATION CITED: State Environmental Planning Policy No 1 Development Standards Dwelling House Development Control Plan Low-Density Multi-Unit Housing Development Control Plan Residential Subdivision Development Control Plan DATES OF HEARING: 13/11/2006 and 18/12/2006 EX TEMPORE JUDGMENT DATE : 12/18/2006 APPLICANT Mr S. Depasquale, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr P. Jackson, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 18 December 2006 10648 of 2006 Steven Depasquale v Hornsby Shire Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 This appeal relates to development application No 215/06, which is for the demolition of an existing detached dwelling house, No. 24 Moreshead Avenue, Carlingford, the subdivision of the land into two lots and the erection of a detached two storey dwelling on each of the newly created lots at. 2 The site comprises Lot 19 DP 28993, which has a width of 22.3 m and an area of 916.6 sq m. The two proposed lots will each have an area of 458 sq m and whilst the lots are somewhat irregular in shape their side boundaries at the front building line are parallel resulting in each of the lots having the same width of 11.15 m. 3 The locality surrounding the site is predominantly developed with substantial single storey detached dwelling houses although there are two storey detached dwelling houses nearby including two that adjoin the site to the south at Nos 26 and 28 Moorehead Avenue. 4 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 ("the LEP") and in this zone dwelling houses and multi-unit housing development are permissible with development consent. The objectives of the Residential A zone are: (a) to provide for the housing needs of the population of the Hornsby area; (b) to promote a variety of housing types and other land uses compatible with a low density residential environment; (c) to provide for development that is within the environmental capacity of a low density residential environment. 5 In the Residential A zone subdivision is also permissible with development consent under the density provisions in cl 14 of the LEP. Clause 14 also imposes in subcl (2) a minimum lot size of 500 sq m. Because the proposal does not meet this development standard an objection under State Environmental Planning Policy No 1 Development Standards ("SEPP 1") was provided. Upon discovery of certain deficiencies within this objection the hearing was adjourned to enable a further objection to be prepared and this objection is now available for the Court's consideration. 6 Subclause (3) of cl 14 contains, in relation to multi-unit housing, a maximum dwelling density of one dwelling per 350 sq m in the Residential A zone although subcl (4) in effect only permits subdivision of dwellings within a multi-unit housing development if the density meets the subdivision standard in subcl (2) being one dwelling per 500 sq m. 7 The objective of the density provisions in cl 14 is: to provide for the development of land at a density that is in accordance with the land's environmental capacity and zone objectives. 8 Also applicable to this application is council's Dwelling House Development Control Plan, its Low-Density Multi-Unit Housing Development Control Plan and its Residential Subdivision Development Control Plan. 9 The application was advertised and two submissions were received from the adjoining properties to the rear in Tobruk Street. The principal concerns of those residents involve loss of privacy and the removal of existing mature trees in the rear yards of the subject development. 10 Taking into account that the trees are to be retained and the affected properties would only be overlooked by upper level bedroom windows positioned about 18 m from the rear boundary, I do not find these concerns attract any determinative significance. 11 The application was refused by the council by Notice of Determination dated 21 June 2006 for reasons relating to: non-compliance with the density development standard in cl 14 of the LEP; non-compliance with zone objectives (b) and (c) regarding the promotion of a variety of housing types and the environmental capacity of the environment; amenity impacts on the neighbouring property to the south at No. 26; and precedent. 12 Town planning evidence was provided by the Court appointed expert, Ms K Gordon. 13 The respondent council's statement of issues identifies five separate issues which can be distilled into three issues: o The non-compliance with the density standard in cl 14 of the LEP and whether the associated SEPP 1 objection is satisfactory o Whether the amenity impacts on No. 26 Moreshead Avenue, particularly overshadowing, are excessive; o The matters raised by objectors. (dealt with above) 14 In her report Ms Gordon deals comprehensively with the impacts of the proposal on No. 26 in the context of the applicable development control plans and concludes that such impacts are within reason. More particularly, she concluded that the proposal satisfies the prescriptive measure of the setback and height elements in the Dwelling House DCP. In this context she took into account the proposed two storey building's height setbacks and the solar access requirements for private open space and habitable rooms. Taking into consideration the east/west orientation of the allotments in Moreshead Avenue and their slope to the south and taking into account the appropriate positioning of these proposed buildings on their site I agree with the conclusions here reached by Ms Gordon. 15 The revised SEPP 1 objection acknowledges that the subdivision requirement in cl 14(2) of the LEP is a development standard and that in this regard each of the two new allotments would have an area deficiency of 41.7 sq m, a variation to the development standard of 8.3%. It also recognises the abovementioned objectives to cl 14 and the zone objectives. 16 In relation to zone objective (a) that deals with housing needs the objection essentially contends that by providing additional housing the proposal satisfies this objective. I have no difficulty accepting this conclusion. In relation to zone objective (b) that deals with a variety of housing types in a low density residential environment the objection notes that the residential density for multi-unit housing can be increased to the rate of one dwelling per 350 sq m where subdivision is not proposed. As multi-unit housing is permissible in this zone and the proposal has a density of one dwelling per 458 sq m development in the form here proposed can be anticipated. Moreover, the proposed development is not inconsistent with the emerging character of development in this locality as evidenced by the two new dwellings immediately to the south. 17 Objective (c) of the zone effectively requires that development be within the environmental capacity of a low-density residential environment. According to the objection this objective overlaps the cl 14 objective which requires that the development of land be at a density in accordance with its environmental capacity. It is here noted that environmental capacity is not defined, nor is a low-density residential environment. 18 The objection then proceeds to consider in the context of these objectives various prescriptive controls that would apply to detached dwelling houses and multi-unit housing which in effect in this instance are very much the same. It then effectively concludes that these can be met on lots of the size here proposed and as a consequence their development in the manner proposed would be within its environmental capacity. 19 In dealing with the aims of the policy and concluding that compliance with the development standard would be unreasonable or unnecessary in the circumstances the objection takes into account a number of matters including: compliance with the objectives of cl 14 and the zone; an appropriate response to existing surrounding built form; permissible uses and applicable planning controls; an appropriate residential amenity for the occupants; appropriate utilisation of existing infrastructure; and the orderly and economic use of the land. 20 Finally, the author of the SEPP 1 objection, Mr D Briggs, the applicant's consultant town planner, contends that the objection is well founded taking into account the above matters and noting that: the amenity of surrounding development will not be materially compromised; the proposed development would be compatible with the emerging character of development within the neighbourhood; and is in a zone that encourages a low density housing form of development as is here proposed. 21 It was submitted on behalf of the council that the SEPP 1 objection is unsatisfactory in that it does not correctly consider the applicable objectives, particularly objective (c) and the objective in cl 14 in terms of the relationship between environmental capacity and the subdivision area standard. By its emphasis on development as built form rather than development as subdivision it is fundamentally flawed. 22 Taking into account the SEPP 1 objection and the evidence of Ms Gordon, I have reached the view that the application of the objective of the density provision in cl 24(3) to the proposal in the context of the other variously applicable requirements, (excluding subdivision), can only result in a conclusion that the two proposed dwellings would be in accordance with the site's environmental capacity. Similarly, it would meet the objectives of the zone. Unfortunately, the LEP provides no clear or direct assistance in understanding why a multi-unit housing development that is otherwise acceptable would be unacceptable if the land upon which it is situated were to be subdivided. There is nothing to assist in understanding why an allotment of land having an area less than 500 sq m would not be within its environmental capacity when an allotment in excess of 500 sq m would be. 23 In my view the only way of establishing the environmental capacity of a non-complying lot is to consider such capacity in terms of its ability to be developed with a building or buildings in accordance with various built form controls and without unreasonable adverse amenity impacts. Of course, streetscape and character issues are also relevant. In the context of environmental capacity I have already reached conclusions in relation to built form controls and amenity impacts. 24 In relation to character it is plain that the two proposed houses will be different to the majority of existing development in the street but it is now well established that being different does not equate to unacceptability. This question must be considered subject to environmental capacity in the light of the provisions of the zone and its objectives. In the absence of any controls that require the maintenance of existing character one can reasonably anticipate that by requiring provision to be made for the housing needs of the population and the promotion of a variety of housing types, change will occur. 25 Notwithstanding that most allotments in this street having areas less than 1,000 sq m are incapable of being developed and subdivided for multi-unit housing there is nothing to prevent site amalgamations from occurring. In these circumstances, I have concluded that the proposed multi-unit housing development should not be refused on the basis of it being different to other development in the street. Whilst it is supportive of the proposal in the streetscape and character context I have not given great weight to the neighbouring development to the south at Nos 26 and 28 in reaching this conclusion. 26 Whilst this proposed development will effectively present to the street as two detached dwellings in a similar manner to the two detached dwellings to the south, it is by virtue of the provision in cl 14(3) (that allows one dwelling in the form of multi-unit housing per 350 sq m of site area), nevertheless a multi-unit housing development. 27 The only relevant difference between these two developments is that the depth of the subject site is somewhat less than that of its neighbours. Hence, notwithstanding that one comprises multi-unit housing and the other comprises detached dwelling houses, I have taken their similarities into account in reaching the conclusion that the proposal's density is acceptable. 28 In all of the circumstances and taking into account Ms Gordon's conclusions I have not been persuaded that the proposal would be inappropriate in terms of streetscape and character. I am also satisfied that the proposed development will be within the environmental capacity of the site and of the surrounding environment and accept the conclusion that the SEPP 1 objection is well founded and that strict compliance with the development standard would be unnecessary in the circumstances. I have thus decided that on its merits the proposed development would be appropriate and therefore the appeal should be upheld and conditional development consent granted. 29 The orders of the Court will therefore be: 1. The appeal is upheld, 2. Development Application No 215/06 for the demolition of an existing detached dwelling house, the subdivision of the land into two lots and the erection of a detached two storey dwelling on each of the newly created lots at 24 Moreshead Avenue Carlingford is determined by the granting of development consent subject to the conditions in annexure A hereto. 3. Exhibit A will be retained. ___________________ 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.