McKirdy v Hunters Hill Municipal Council [2005] NSWLEC 200

Land and Environment Court of New South Wales

CITATION : McKirdy v Hunters Hill Municipal Council [2005] NSWLEC 200

APPLICANT Tina McKirdy

PARTIES : RESPONDENT Hunters Hill Municipal Council

FILE NUMBER(S) : 10025 of 2005

CORAM: Murrell C

Development Consent :- Section 96 application to enlarge basement parking - extent of excavation - impact on drainage KEY ISSUES:

Environmental Planning and Assessment Act LEGISLATION CITED: Hunters Hill Local Environmental Plan Development Control Plan No. 15

CASES CITED: Pittwater Road Pty Ltd v Pittwater Council NSWLEC 685 [2004]

DATES OF HEARING: 20/04/2005 EX TEMPORE JUDGMENT DATE : 04/20/2005

APPLICANT Ms Mary-Lynne Taylor, solicitor SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr J Cole, solicitor SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

20 April 2005

10025 of 2005 Tina McKirdy v Hunters Hill Municipal Council

JUDGMENT 1 This is an extempore judgment for a matter that has come before the Court today as an 'on-site hearing'. This is an appeal under s 96 of the Environmental Planning and Assessment Act against Hunters Hill Municipal Council's refusal of an application to modify a consent granted in September 2004. The original consent was for a 'deferred commencement' that had a requirement whereby the basement carpark of the application had to be reduced by approximately one-third and the applicant subsequently submitted a plan to the council to satisfy the 'deferred commencement' condition and the council then issued a consent on the 19 November 2004 for the approval of a dwelling on the subject site. The subject site is known as 3 Passy Avenue and is on the corner of Rooke Lane, Hunters Hill. 2 The application currently before the Court is a s 96 application to modify the consent in respect of the plans referred to in the above consent. The proposal is to increase the size of the basement parking area by approximately a third and for fencing details also to be amended. 3 The council provided a Statement of Issues dated 17 March 2005 wherein it nominated a number of issues, one was that the basement parking should not be allowed in terms of the earlier 'deferred commencement' consent in that the council granted the 'deferred commencement' with the condition requiring an amended plan on the basis of a reduced basement parking area and this translated to a reduction in the excavation to the basement of approximately 28%. 4 The other issues are with respect to the council's controls in terms of the Development Control Plan and in terms of the parameters set out therein which I will detail further later. The council also raises the issue of increased drainage or increased water flow to the downhill properties. And the issue of precedent has been raised by council in terms of the process or certainty in the planning process. 5 I will deal first of all with the issue of process or certainty in the planning process. The Court does not condone 'development by creep'. On the other hand I must look at the individual merits of this particular application. Section 96 is a section of the Act which is facultative in that it does allow for modifications to be made to consents. The certainty in the planning process is also important in terms of matters being assessed against council's planning controls and ensuring consistency in administrative decision making. 6 The issue of precedent in terms of basement parking was raised as a secondary matter in terms that there are no basement parking areas within the immediate vicinity of the subject site. The applicant has provided evidence that basement parking has been provided in Woolich Road for some 3 cars in December 2004. 7 Mr Cole on behalf of the council referred me to a judgment of his Honour McClellan J in terms of the matter Pittwater Road Pty Ltd v Pittwater Council NSWLEC 685 of 2004 handed down 15 December 2004 and here the issue s 96 and its appropriateness is discussed in terms of an assessment. In particular in this judgment it states that "a modification can be allowed, one must have regard to the relevant section of s 79C in terms of that particular application and in terms of the modification sought. I quote from paragraph 51: "Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change, the approved colour of a building, matters relevant to colour must be considered. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise." 8 This judgment provides the current thinking and legal framework in terms of the consideration of s 96 applications. I do not believe the application before me here provides the opportunity to revisit a total assessment of the development application but clearly I must be mindful of the relevant matters as identified in his Honour's judgment in assessing this s 96 application. 9 In my assessment of the matter today I have in many respects gone beyond just the s 96 application although I did believe it had a bearing on the modification as now sought in that I questioned the architect in terms of the philosophy or rationale for the driveway being from Passy Avenue as opposed to Luke Lane the lowest point of the site and I accept the constraints provided are such that it is preferable to provide the driveway off Passy Avenue. In saying this I am looking at the additional excavation required for the modification as submitted. 10 While it is not strictly relevant to look at the provisions of the instruments for s 96 applications I consider it appropriate in the circumstances of this case to ensure that any proposed modification is consistent with the same. 11 The subject site is zoned under the Hunters Hill LEP as 2(c). The only controls within that plan are with respect to height limitation of 7.2 m to the underside of the ceiling and a 50% requirement for garden area, with a definition of garden area. Mr Falson the Court appointed expert has also confirmed that the subject development application complies with those statutory controls. The other relevant guideline is that contained in Development Control Plan No. 15 introduced by council in January 2000. The development control plan contains a number of principles that development applications that must be considered under the relevant provisions that the council has taken the Court to relate to the objectives of the planning policy and in particular the design parameters: (a) Development should ensure that the size and shape of development, the extent of the cut and fill, the type and colour of material etc. and the amount and type of landscaping are: (i) compatible with the character and scale of surrounding residential development; and (ii) do not intrude or otherwise impact upon the natural landscape particularly on ridge top locations and adjoining public areas. 12 In particular council identifies 3.3(g) as relevant to the proceedings when it says that preferred design elements, council favours the following elements in the design of residential development and that is (g) which is retention of the natural land form and vegetation. The other relevant provisions that the Court was taken to relate to the garden area objectives, in particular: § To conserve the character of the municipality derived from detached houses set in and separated by individual gardens by establishing the minimum proportion of garden area per allotment. § To retain, protect and augment tree covered in environment in which the municipality is noted. § To ensure that new buildings respect rather than or to be existing steep sandstone topography before which the municipality is noted. 13 There are a number of provisions in the DCP which also relate to car parking. The Court has had the benefit of hearing evidence from a number of experts. Mr Falson is the Court appointed expert, consultant town planner and he provided a report to the Court and in his opinion in summary he sees no reason as to why s 96 application should not be approved. 14 Mr Michael Adler, a consultant engineer for the applicant provided advice to the Court in terms of the engineering geotechnical matters. Council's manager of development and environment, Mr Kourepis, also provided a report and evidence to the Court this morning, and the architect for the applicant Mr Romandi was also present. The Court also had the benefit of a site inspection here this morning to understand the lay of the land and the development application that has been approved. 15 This is a s 96 application and in assessing the impacts of the s 96 application I also must have regard to an assessment in terms of s 79C. In particular, of those matters that are of particular relevance to the modification application. 16 In my assessment of the application (I will give my reasons) but I have concluded that the s 96 should be approved subject to a number of conditions that have been discussed here today. And I say this on the basis of the fact that I do not believe in terms council's Development Control Plan and the intent of that plan and the objectives that the importance to minimise cut and fill is read the natural topography that is the "natural landscape". In terms of the built and the natural environment and the objective of 3.3 the design element this is "the retention of the natural land form and vegetation". The Development Control Plan also refers to a number of objects in terms of a garden setting or environment which I cited earlier. In terms of the Development Control Plan there are a number of objectives for parking that includes parking to be as unobtrusive as possible or less intrusive in the streetscape. I cannot argue that one will see the driveway down to the basement car parking but the predominance of garage doors or parking in the streetscape will be minimised by the basement parking. 17 The DCP is silent on basement parking and if council wishes to dissuade applicants from submitting applications then perhaps it needs to be more overt in terms of the DCP and restrictions on basement parking. But in terms of the environmental impacts and in terms of the evidence presented here today I have not been persuaded that the environmental impacts are such that it would warrant refusal of the application. In saying this it is clear that topography or landform will not be interfered with by providing basement parking. And as I understand the DCP and appropriately it encourages landscapes to be read in their context. 18 I do not believe that the basement car parking is antipathetic to this concept. I also recognise the DCP is seeking to minimise cut and fill but it is seeking to minimise cut and fill for a purpose to ensure that development sits in the landscape both the natural and built. Furthermore it would appear that basement parking is a more recent occurrence and there has been an approval which has been cited and the Court does not know all the facts that cannot distinguish or compare this particular application with the current application but nonetheless I am conscious that this is not the first application that council has approved for basement parking. 19 The Development Control Plan and the LEP and its provisions provide a framework for which applications are to be considered, prepared formulated and then assessed and the greater certainty in the process is by the greater articulation of such controls. 20 By way of comment I find it less than satisfactory that applications are approved then s 96 applications are submitted to do exactly what the deferred commencement condition sought to amend. At the time I must consider the merits of this particular application. The process involved in an approval surely should dissuade people from making subsequent applications. 21 I agree that certainty in the planning process is most important and I will say that I understand the council's concerns in terms of 'development by creep' or incremental development but at the same time that does not or cannot overwhelm my consideration of the application before me. Clearly I have jurisdiction to consider the s 96 application and in the circumstances I see no reason as to why it should not be approved. With respect to the environmental impact or harm that was perceived by council in terms of the approval of allowing a larger basement parking area this in part related to the trees on the subject site, in particular the existing camellias. The Court has now had the benefit of further evidence from council's landscape architect/arborist and he is satisfied that there can be appropriate conditions imposed on the s 96 application to ensure the retention of and the longevity of the camellia trees that are on the perimeter of the building site. 22 Clearly the landscape plan needs to identify those plants that are to be retained but overall the landscape officer does not have difficulty with the landscape plan which has been submitted and approved already. The additional planting of street trees will assist in the streetscape. The issue of the appropriateness of the proposed dwelling next door to a heritage item was previously assessed by council's conservation assessment panel and it was deemed to be appropriate and after understanding the philosophy and design rationale from the architect I can understand there is sympathy with the adjoining heritage item. There are also other heritage items in the vicinity of the subject site and it is noted that the house is within a heritage conservation area. Currently erected on the site is a single storey building built approximately 1940 and it was previously agreed that it did not have heritage significance to warrant its retention. 23 In terms of the drainage issue, from the evidence here this morning I am satisfied that the detention tank and the recycling of water will not create unreasonable adverse impacts on adjoining properties and is not a matter that would warrant refusal. It is noted that the current consent requires the approval of a stormwater plan as well as a geotechnical report. 24 I have assessed this development application as I stated in the context and the framework of the council's controls and I have concluded in my assessment there is no reason as to why the s 96 application should not be approved. By way of comment however, I do not consider it is appropriate to get a development consent then to seek a s 96 to carry out the development as originally submitted. At the same time I must also bear in mind that the applicant had the opportunity to appeal the deferred commencement condition and that would have been the subject of a Court hearing as well. Furthermore, I am also conscious of the fact that the applicant has not taken the benefit of the development consent by acting upon it and then seeking a retrospective s 96 application after construction of the building which is certainly frowned upon by the Court. 25 I will say also on council's concerns about negotiations with applicants in terms of development consents that at the end of the day both councils and the Court must be conscious of the final outcomes of development and I am satisfied there will be a satisfactory outcome with respect to both the development application and the s 96 modification. And it is important that applicants through the relevant controls of the development control plan and the LEP are provided with guidance and also in discussions with council officers, at the same time I can understand the frustration for council officers in terms of negotiating what they consider to be a reasonable outcome only then to have the original application resubmitted in the form of a s 96 application. I cannot say that I approve of that process but at the end of the day I must look at the merit of the s 96 modification, and I am satisfied in terms of the merits the proposal will not create an undesirable precedent. 26 Therefore on the basis of my assessment above, the Orders of the Court are: