Land and Environment Court of New South Wales CITATION : Cherrybrook Victory Christian Church v Hornsby Shire Council [2004] NSWLEC 178 Cherrybrook Victory Christian Church Applicant PARTIES : Hornsby Shire Council Respondent FILE NUMBER(S) : 11102 of 2003 CORAM: Roseth SC KEY ISSUES: Development Application :- housing for older people and people with a disability LEGISLATION CITED: CASES CITED: DATES OF HEARING: 05/04/04, 06/04/04 DATE OF JUDGMENT: 05/21/2004 Mr G McKee, solicitor LEGAL REPRESENTATIVES: Mr P Jackson, solicitor JUDGMENT: - 7 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11102 of 2003 Roseth SC 21 May 2004 Cherrybrook Victory Christian Church Inc Applicant v Hornsby Shire Council Respondent Judgment Introduction 1 This is an appeal against the refusal by Hornsby Shire Council (the council) of a development application to subdivide lot A DP 335625, known as 125 New Line Road, Cherrybrook, into two allotments, to demolish two existing buildings on the proposed rear allotment, and to erect a development for older people and people with a disability consisting of eleven dwellings on the proposed rear allotment. The site 2 The site is the rear allotment to be created in the application. It approximates a triangle in shape and has an area of 4,230m2. It slopes down towards the southeast. It cannot be seen from the road. On the south boundary it adjoins the rear of five properties (lots 21, 22, 23, 24 and 25 DP 262719 Bowerman Place). On the northeast boundary it adjoins four residential properties. Several of the surrounding properties are two-storey houses. The proposal and its history 3 The applicant proposes to subdivide the site of 1.5 ha into two allotments, demolish two dwellings standing on the proposed rear allotment, and erect a development for older people and people with a disability containing eleven dwellings. Eight of the dwellings are on the ground floor, while three are on the first floor, though they are accessed from the ground, as the sloping site enables level access to all units. Each unit has a single garage. 4 The applicant lodged the development application in November 2002 for twelve dwellings and amended it to eleven in March 2003. Following notification, the council received seven submissions. In May 2003 the council accepted the recommendation of its planning officers to refuse the application. The applicant lodged the appeal in September 2003. Relevant legislation, planning instruments and policies 5 The application was lodged under State Environmental Planning Policy 5 – Housing for Older People and People with a Disability (SEPP 5). The SEPP has been repealed and replaced by SEPP Seniors Living; however, the new SEPP contains a savings clause that applies to this application. 6 The land is zoned residential 2(a) under the Hornsby Local Environmental Plan 1994 (the LEP). The issues 7 The council submitted a Statement of Issues containing 31 issues. At the commencement of the hearing the council's advocate, Mr P Jackson, submitted that there were only four issues, namely: · The site is not suitable for older people and people with a disability because the access is not convenient. · The proposal is out of character with the surroundings. · The proposal is poorly designed, as there is too much hard paving, overlooking and overshadowing of courtyards. · The rear yard of lot 24 Bowerman Place is overshadowed. 8 In final submissions Mr Jackson said that the last of these issues was not determinative. Convenience of access 9 The applicant's access consultant was Mr M Relf, while the council's was Mr T Beardsmore. The experts agreed that the proposal complied with the quantitative requirements of SEPP 5 for access. The disagreement between them was that Mr Relf considered that the access was convenient, while Mr Beardsmore disputed it. Mr Beardsmore noted that there was a rise of 8.5m between the lift at New Line Road and the site boundary and this made the access inconvenient. Mr Relf pointed out that the access road traversing the rise was below the required grade of 1:14 and that it had landings at the required intervals. The access complied with every relevant requirement. For these reasons I accept Mr Relf's evidence. 10 Mr Relf and Mr Beardsmore agreed that the footpath on New Line Road to the bus stop needs upgrading to allow wheelchairs to pass easily. While they agreed on the details of the upgrading, the details are not part of the application. Out of character with surroundings 11 I do not think that the criticism, that the proposal is out of character with the development around it, is valid. The proposal's Floor Space Ratio (FSR) is about 0.3:1, a density that is more characteristic of detached houses than medium density projects. The majority of the proposal is single-storey and the two-storey elements are partially buried into the ground. Several of the surrounding houses are two-storey and have hard paving and/or swimming pools in the rear yards. Quality of design 12 The council's planning experts were Mr A Moody, a consultant planner, and Mr D Chesterman, an architect planner. The applicant's expert was Mr N Ingham, a planning consultant. Mr Moody's principal criticisms were that the proposal · included too much hard paving; · did not comply with cl 14(f) of SEPP 5; · lacked internal privacy; and · included courtyards that received little sun and had poor outlook. 13 I agree that the proposal includes more paving than necessary. While the amount of landscaped area is acceptable, with more skilful design, areas of paving could be replaced by soft landscaping, the visitor parking bays could be relocated and access roads reduced to the minimum necessary to allow efficient movement of vehicles. However, as the council is opposed to any changes to the proposal, the landscaped area shall remain at its acceptable current level, rather than the generous provision that would be possible with changes that the council opposes. 14 I accept that the proposal does not provide a single deep landscaped area required by cl 14(f). That clause is directed to a rectangular site, so it would have to be re-interpreted for the subject site, which is triangular. The logical place for the deep landscaping is along the south boundary. The proposal includes a landscaped strip in this location, although it is too narrow to satisfy cl 14(f). However, non-satisfaction of cl 14(f) does not necessarily lead to the refusal of the application, it merely gives the consent authority power to refuse. In this case, given the overall acceptable amount of open space and the low intensity of development, it would not be reasonable to exercise that power. 15 Mr Moody's criticism that the proposal allows too much overlooking arises out of the fact that the driveways of Units 6 and 8 overlook the courtyards of Units 9 and 10. The driveways have obscure glass balustrades that respond to the criticism to some extent. In my opinion, this is a weakness in the design, but not a serious one. 16 I agree with Mr Moody that the outlook from the courtyards of Unit 9 and 10 is closed. The courtyards are buried into the ground, so the residents will look towards a retaining wall. I note that the effect of burying Units 9 and 10 is that the two-storey component of the project appears one-and-a-half-storey. This reduces the impact on the surrounding properties. The designer has thus chosen to accept a lower amenity for the future residents in order to reduce the external impact. 17 Based on the applicant's drawings (in particular Section A-A) Mr Moody also criticised the courtyards to Units 1, 2, 3, 4 and 5. During the hearing it became clear that Section A-A was wrong and the courtyards are only about 0.5m below the ground. In this case they are sufficiently low to prevent overlooking of the adjoining properties and not too low to receive adequate sunlight. Lot 24 Bowerman Place 18 The Court heard the evidence of two objectors, Mr and Mrs Lai Kwon, of lot 24 Bowerman Place, and Mrs Stebbing of lot 21 Bowerman Place. Mrs Stebbings' concern was the species of tree on the boundary, a concern that the applicant was willing to accommodate by changing the planting schedule. Mr and Mrs Lai Kwon's main concern was that the buildings were too close to their boundary. The corners of two buildings are set back 3m; however the average setback is much greater. The proximity of the buildings is compensated by their low height. 19 In other respects, such as overshadowing and overlooking, the proposal has little impact on the adjoining properties, including lot 24. Conclusion 20 It was common ground between the parties that the drawings tendered in Court were of poor standard, factually incorrect, incomplete and internally inconsistent. The applicant's landscape expert, Ms Sonter, agreed that her landscape design was inconsistent with the architectural drawings. Out of a set of nine architectural drawings she had looked at only one. 21 One option for the Court would be to refuse the application because of the poor quality of the documentation. I have not followed this option and looked beyond the documentation at the merit of the proposal. In my opinion, the proposal has merit, mainly because of its modest FSR. 22 During the hearing the applicant tendered amended drawings and its experts provided evidence that clarified inconsistencies to the effect that, by the end of the hearing, the Court (and anyone else who attended the hearing) could understand exactly what was proposed. There is thus no legal barrier to approving the proposal on the basis of the drawings before the Court. The reason why revised drawings would be preferable is that the Principal Certifier, who will approve the construction certificate drawings, was not present during the hearing. A clear set of drawings would make the task of the Principal Certifier easier and reduce the chance of inconsistency between construction certificate drawings and the development consent. The receipt of a revised set of drawings would be a suitable matter for a deferred commencement condition. 23 Mr Jackson submitted that the receipt of a revised set of drawings is not a suitable matter for a deferred commencement condition. I do not accept this submission on the basis that the revised set of drawings will do no more than present the drawings already before the Court in a clearer and neater fashion. Mr Jackson also submitted that, because the applicant had not provided spot levels along the adjoining properties to the northwest, the difference of height between those properties and the proposed courtyards to Units 1 to 5 was not known. I do not accept that this can be the source of any significant inaccuracy. The site inspection demonstrated that the contours continue over the adjoining properties, or, if they do not exactly continue, the difference in levels is minor. The applicant's revised sections (tendered during the hearing) are either correct or the difference between the levels shown and the true levels is insignificant. Minor discrepancies will not materially affect the impact on the adjoining properties or the solar access to the units. 24 The applicant has provided no engineering detail on the works to be done on the public footpath. However, Mr Beardsmore and Mr Relf have agreed on what needs to be done. There was no suggestion from Mr Beardsmore, or from any other expert, that the proposed adjustments to the footpath levels cannot be done. I conclude therefore that the engineering details of the works on the public footpath are also a suitable matter for a deferred commencement condition. 25 For the above reasons the appeal is upheld and the application is determined by consent subject to deferred commencement. Orders 1. The appeal is upheld. 2. Development application to subdivide lot A DP 335625, known as 125 New Line Road, Cherrybrook, into two allotments, to demolish two existing buildings on the proposed rear allotment, and to erect a development for older people and people with a disability consisting of eleven dwellings on the proposed rear allotment is determined by the granting of deferred commencement consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 6, A, C, L and M. _________________ Dr John Roseth Senior Commissioner 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.