Takchi E v Hornsby Shire Council [2007] NSWLEC 597

Land and Environment Court of New South Wales

CITATION : Takchi E v Hornsby Shire Council [2007] NSWLEC 597

APPLICANT: PARTIES : Eddie Takchi RESPONDENT: Hornsby Shire Council

FILE NUMBER(S) : 10556 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application - Subdivision :- Heritage significance of the item and curtilage

Hornsby Local Environmental Plan 1994, (HLEP) LEGISLATION CITED: State Environmental Planning Policy No 1 - Development Standards, (SEPP1) Sydney Regional Environmental Plan No 20: Hawkesbury/ Nepean Rivers, (SREP20) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 10 and 11 September 2007

DATE OF JUDGMENT: 20 September 2007

APPLICANT: Mr E Kondilios, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Maddocks RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Home Wilkinson Lowry

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

20 September 2007

10556 of 2007 - Eddie Takchi v Hornsby Shire Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Hornsby Shire Council (the council) to refuse a development application to erect a new 'multi-unit housing' dwelling house and to subdivide into two allotments land at Lot 4, DP 204012, being No 27 Loftus Road, Pennant Hills, NSW. 2 I visited the land in company with the parties on the morning of the first day of proceedings and I heard from local residents. 3 I have concluded that the application should fail as a result of the adverse impact of the proposed new dwelling house on the heritage significance of the item within the conservation area, mainly due to a reduction of its curtilage. The land 4 The land is situated located on the southwestern corner of Loftus Road and Star Crescent, Pennant Hills. 5 The land is roughly rectangular in shape with a northern boundary fronting Star Crescent of 39.625m; an eastern boundary fronting Loftus Road of 21.03m; a southern boundary adjoining No 25 Loftus Road of 45.72m a western boundary adjoining No 1 Star Crescent of 24.27m and an area of 1,069m2. 6 There is a fall of about 2.8m from the northeastern corner (at the intersection of Star Crescent and Loftus Road) down to the southwestern corner at an average grade of 6%. 7 Vehicular access is from Star Crescent. There are about twenty (20) trees growing on the land. The most important of these trees is the mature Hoop Pine, (araucaria) located adjacent to the rear western fence. This tree was probably planted when the dwelling was erected around the 1900s. During the proceedings, evidence was given of a 3.65m diameter brick-lined well some metres deep, probably of the same vintage as the existing dwelling located near the courtyard on the western side of that dwelling. 8 The Loftus Road and Star Crescent streetscapes are characterised by single-storey and two-storey dwelling houses. As noted in the amended Statement of Facts and Contentions, the area is characterised by dwellings standing on lots of between 700m2 to 1200m2 in area. 9 Erected on the land is a single-storey brick and weatherboard residence, with hipped roof and rear skillion, which is listed as a heritage item of local significance. The Statement of Significance contained within the State Heritage Inventory listing for the property states that it is: A good example of a late Victorian period brick cottage in Georgian style. Fine quality original cast iron detail. …[n]eat brick cottage circa 1900. Symmetrical design. Tuck pointed face brick in Flemish bond. Hipped iron roof with hipped bullnosed verandah. Cast iron columns with lacework (and fringes). Double-hung windows either side of door. Stone sills with connecting red-coloured band. Tiles to verandah floor. Relevant planning controls Hornsby Local Environmental Plan 1994, (HLEP) 10 Under the provisions of the HLEP the land is zoned Residential A (Low Density), and the proposal is permissible with consent. Of relevance are: · The aims and objectives are contained under cl 2 of the HLEP. · Clause 7(2) of the HLEP requires the objectives of the zone to be taken into account before development consent is given to the carrying out of a development within the zone. · Clause 8 of the HLEP deals with zoning of the land. · Clause 14 'Density' requires a minimum area per lot of 500m2 excluding access or right of carriageway. · Clause 15 'Floor Space Ratio' permits a maximum floor space ratio of 0.4:1 within the Residential A (Low Density) Zone. · Clause 18 of the HLEP relates to 'Heritage Items and Heritage Conservation Areas'. 11 The dwelling on the land is listed as a heritage item of local significance under Schedule D of the HLEP as 'House'. It is also is located within the Beecroft/ Cheltenham Heritage Conservation Area (HCA) under the provisions of Schedule E of the HLEP. 12 It is noted that there are around 72 items in Schedule D of the HLEP that are described by reference to 'house and grounds', 'house and garden', 'house and outbuildings', 'house and stables', or similar description, indicating that the 'house' is not the only reason for listing. For example at No 41 Loftus Road, the item is described as "House and grounds, including convict brick paths, stone love seat, palm tree, remnant circular drive and beehive well". The subject heritage item is listed as 'House'. State Environmental Planning Policy No 1 - Development Standards, (SEPP1) 13 As proposed Lot B would have an area of 472m2, it would not comply with the minimum 500m2 under cl 14 of the HLEP. Consequently an SEPP1 object to that standard has been lodged with the development application that would allow flexibility in applying the development standard. Sydney Regional Environmental Plan No 20: Hawkesbury/ Nepean Rivers, (SREP20) 14 Under the provisions of the SREP20 water quality of the Hawkesbury/ Nepean Rivers catchment is important. Low Density Multi-Unit Housing Development Control Plan, (MUDCP) 15 Under the provisions of the MUDCP the objectives for 'Design', 'Height', 'Privacy', 'Carparking' and 'Solar Access' are relevant. Water Minimisation & Management Development Control Plan, (WaterDCP) 16 Under the provisions of the WaterDCP a waste management plan is required. Heritage Development Control Plan, (HeritageDCP) 17 Under the provisions of the HeritageDCP the element objectives for 'Design', 'Streetscape', 'Siting' and 'Heritage Conservation Areas' are relevant. 18 Important objectives of the council's HeritageDCP are: · To conserve the heritage significance of the natural and built environment and ensure new development is sympathetic to the identified heritage values. · To encourage an understanding of heritage significance and promote the conservation of heritage within Hornsby.