Land and Environment Court New South Wales Medium Neutral Citation: Sterling Projects Pty Ltd v The Hills Shire Council [2011] NSWLEC 1020 Hearing dates: 15 and 16 December 2010 Decision date: 08 February 2011 Jurisdiction: Class 1 Before: Tuor C Decision: 1. The appeal is dismissed. 2. The development application (913/2010/HB) to demolish an existing dwelling and construct multi dwelling housing at 26 Moseley Street, Carlingford, is refused. 3. The exhibits may be returned. Catchwords: APPEAL - Development application - multi unit housing, character of the area, internal amenity and resident objections. Legislation Cited: Environmental Planning and Assessment Act, 1979 Cases Cited: Zhang v Canterbury City Council (2001) 51 NSWLR 589 Category: Principal judgment Parties: APPLICANT Sterling Projects Pty Ltd RESPONDENT The Hills Shire Council Representation: APPLICANT Mr P Jackson, solicitor RESPONDENT Mr J Kildea, barrister APPLICANT Pikes Solicitors RESPONDENT The Hills Shire Council File Number(s): 10778 of 2010 1This is an appeal against the refusal by the Hills Shire Council (the council) of a development application (913/2010/HB) under the Environmental Planning and Assessment Act 1979 (EPA Act) to demolish an existing dwelling and construct multi dwelling housing at 26 Moseley Street, Carlingford (the site). Site and its locality 2The site is rectangular in shape with a frontage of 20.42m and an area of 790sqm. It is developed with a two storey brick dwelling with a single storey garage. 3The site is one of three residential allotments on the northern side of Moseley Street, between Buckland and Vickery Street. It adjoins a two storey house to the east (28 Moseley Street). To the west the site adjoins the rear gardens of two single storey dwellings which front Buckland Avenue (1 and 3 Buckland Avenue). It also adjoins the rear garden of a dwelling that fronts Trigg Avenue (3 Trigg Avenue). St Pauls Anglican Church is located on the corner of Moseley and Buckland Street. The area is predominantly developed with two storey detached houses on large allotments. The proposal 4The application seeks consent to demolish the existing dwelling and construct four townhouses (2x2 and 2x3 bedrooms) with garage parking for four cars. 5To address the issues raised by council and residents the applicant has proposed conditions that amend the roof form, increase the rear setback and delete two garages. Planning controls 6The site is zoned Residential 2(b) under Baulkham Hills Local Environmental Plan 2005 (BLEP). The proposal is prohibited within the zone under BLEP but is permissible under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP 2009). 7Baulkham Hills Development Control Plan (DCP) is relevant only to the extent that it is not inconsistent with the provisions of SEPP 2009 and provides a guide as to the likely future character envisaged for the area. 8The aims of SEPP 2009 in cl 3 are: (a) to provide a consistent planning regime for the provision of affordable rental housing, (b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards, (c) to facilitate the retention and mitigate the loss of existing affordable rental housing, (d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing, (e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing, (f) to support local business centres by providing affordable rental housing for workers close to places of work, (g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation. 9Clause 8 provides that if there is an inconsistency between SEPP 2009 and any other environmental planning instrument the Policy prevails to the extent of the inconsistency. 10Part 2 Division 1 of SEPP 2009 applies to in-fill affordable housing and includes land which is zoned to permit dwelling houses subject to certain criteria (cl 10). 11Clause 11 provides: This Division applies to the following development on land to which this Division applies: (a)development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings where at least 50 per cent of the dwellings in the proposed development will be used for affordable housing, but only if: (i)the development does not result in a building on the land with a building height of more than 8.5 metres, and ...... 12The parties agree that the criteria in cl 10 and cl 11 are met and that the Division applies to the site and the proposal. 13Clause 14 provides standards which cannot be used to refuse consent including density and scale, site area, landscaped area, deep soil zones and solar access. The parties agreed that these are met except cl 14(1)(e) in relation to solar access. 14Clause 15(1) provides: A consent authority must not consent to development to which this Division applies unless it has taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with this Policy. 15Seniors Living Policy: Urban Design Guidelines for Infill Development (Guidelines) were prepared to assist in the design and assessment of infill development under State Environmental Planing Policy (Seniors Living) 2004 (SEPP Seniors Living) and provide a 'contextual approach' which is also relevant to infill affordable housing. The Guidelines address the following key issues: ·responding to context; ·site planning and design; ·impacts on streetscape; ·impacts on neighbourhood; and ·internal site amenity 16Mr Kildea, for the council, submits that the decision of Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589 provides guidance as to the consideration that should be given to the Guidelines. His Honour states At [74]: 74 A development control plan is not an 'environmental planning instrument'. (See definition in s4). Accordingly, the requirement in s80(2) that a consent authority 'must refuse' an application that would 'result in a contravention of' such an instrument does not apply to a development control plan. Furthermore, the proscription, by s76B, of any development prohibited by an environmental planning instrument, does not extend to a prohibition in a development control plan. Nor can such a plan contain a 'non-discretionary development standard' which, if complied with, would take away a consent authority's discretion under s79C(2). 17Spigelman CJ at [75] explains the discretion to be exercised and the weight to be applied to relevant provisions of a DCP in the decision making process: 75 The consent authority has a wide ranging discretion - one of the matters required to be taken into account is 'the public interest' - but the discretion is not at large and is not unfettered. DCP 23 had to be considered as a 'fundamental element' in or a 'focal point' of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative. 18The Guidelines are not a DCP but under SEPP 2009 they must be 'taken into consideration'. They are therefore a ' fundamental element' in or a 'focal point' of the decision making process . Mr Kildea acknowledges that the Guidelines are not easy to apply as they are written for SEPP Seniors Living but he submits that the poor outcomes of the proposal in terms of amenity and character demonstrate that the Guidelines have not been adequately addressed. 19Mr Jackson, for the applicant, accepts that the Guidelines are a mandatory consideration but that they are not a 'prohibition' or 'binding'. An application must not be refused if aspects of the development do not conform to the Guidelines. Furthermore, he submits that the proposal provides adequate amenity and is consistent with the character of the area and therefore meets the requirements of the Guidelines. 20The key difference in the submissions of the parties relates to their conclusions on the merits of the proposal when considered against the Guidelines, which is discussed further in the judgment. Evidence 21The Court visited the site and heard evidence from a number of residents objecting to the proposal. Their principle concerns are that the proposal is inconsistent with the low density residential character of the area, provides inadequate parking and would impact on traffic. They considered the proposal to be an unacceptable precedent and that it does not meet the requirements of the DCP or the objectives for the future character of the area. In particular, the adjoining owners were concerned about the size of the proposal being predominantly two storeys and running almost the full length of the site, including development in the rear open space. They considered the proposal would affect their outlook, reduce solar access, increase noise and the impact on the privacy of their properties. 22Mr S Harding, for the council, and Mr D McNamara, for the applicant, provided planning evidence. The key disagreements between the experts are whether the proposal is compatible with the character of the area and achieves acceptable internal residential amenity, particularly solar access. Character 23Mr Harding and Mr McNamara held different opinions about the existing character of the area. Mr McNamara considered the area to be limited to that part of Moseley Street between Buckland and Vickery Street. In his opinion it was varied with only three houses on the northern side fronting Moseley Street. Those on the southern side front Donald Street which is identified for medium density housing and consequently is an area which will be undergoing transition. St Pauls Church also contributed to the diversity of the northern side of Moseley. Within this context Mr McNamara considers the proposal will be compatible within the streetscape. In particular, he noted that there are examples of wide driveways leading to double garages and that the built form, front and side setbacks and rear single storey building form is not inconsistent with other housing in the immediate vicinity. 24Mr Harding considers the context to be broader than the immediate streetscape of the proposal. He states that character includes elements other than streetscape such as building form and scale, front setbacks, roof forms and the 'green zone'. In his opinion, the narrowness of the town houses and the extent of built form, including the driveway and retaining walls are uncharacteristic of the area. He considers that the width of the driveway could be reduced and that it should not 'intrude so far into the property' particularly when it is servicing only two garages, which could easily be provided at the front of the site and remove the need for large paved areas. 25Mr Harding also raised concerns about the extent of built form within the 'green zone', which is formed by the continuous strip of open space at the rear of the properties. He accepted that there are other examples in the area of structures such as garages and swimming pool as well as parts of houses, which are built in the 'green zone' but considered that the 'green zone' was part of the character of the area. Findings 26The Guidelines are prepared for SEPP Seniors Living and therefore it needs to be applied carefully to the proposed development. None the less the objectives and design principles of the Guidelines are relevant and provide guidance to ensure that increased residential densities are not out of character with their surroundings. The Guidelines state that An appreciation of neighbourhood character and good site analysis are key factors to producing quality developments... 27I accept Mr Harding's opinion that context or character is not limited to a consideration of streetscape but includes the wider context of the site. In particular, the characteristics of properties which adjoin the site. 28Mr Harding's principle concerns relate to the development's response to context and site planning. In particular, the arrangement of the dwellings around the central driveway and the intrusion of buildings into the 'green zone'. 29I acknowledge that many aspects of the proposal have responded to the character of the area and to the Guidelines. However, I accept Mr Harding's evidence that overall the proposal does not demonstrate adequate consideration of its context and site planning. In particular, the central 'gun barrel' drive way, which provides access to two garages in the centre of the development is 'poor design'. It results in large areas of paving and limits opportunities for Townhouses 1 and 4 to provide north facing open space and living areas. 30Section 2 - Site Planning and Design of the Guidelines includes the Objective to minimise the visual dominance of car parking, garaging and vehicular circulation. The Design Principles seek to maximise the number of dwellings fronting the street, minimise the width of driveways and to centralise parking in car courts. These principles are reiterated in Section 3 - Impacts on Streetscape. The proposal is not consistent with these aspects of the Guidelines as the driveway, garaging and vehicle circulation visually dominate the development. 31A further consequence of the central driveway and garaging is the continuous buildings (about 25m), which run along the length of both sides of the site. The bulk of the buildings is broken up to a limited extent through varied side setbacks and the single storey element at the rear of the site. However, a large expanse of built form would be clearly visible from the adjoining residents to the side and along the central driveway. Further, there is little opportunity to provide landscaping, other than shrubs, to screen or soften the development and break up the uninterrupted building faade. These aspects of the proposal are inconsistent with the character of the area and the Guidelines. In particular, Section 3 - Impacts on Streetscape includes Design Principles for Built Form which seek to: ·reduce the visual bulk of a development by: -breaking up the building massing -allowing breaks in rows of attached dwellings ...... 32The length of the proposal intrudes into the 'green zone' which is uncharacteristic of the area and reduces the amenity of adjoining residents. However, the proposal within the 'green zone' is single storey and (as amended) would be set back four metres from the rear boundary. This is consistent with the requirements for dwelling houses in the area. There are examples of other dwellings which intrude into this area and it is not an unreasonable expectation, given the planning controls, that other dwelling will extend into the 'green zone'. Solar access 33In their joint report Mr Harding and Mr McNamara agreed that two townhouses received less than three hours solar access to living areas. Mr Harding noted that the shadow diagram were not adequate as they did not show the existing shadows. Further shadow diagrams were provided and Mr Harding confirmed in oral evidence that townhouses 1 and 4 would not receive 3 hours solar access and did not comply with cl 14 of SEPP 2009. Mr McNamara accepted that townhouse 1 would not receive 3 hours but stated that the living area of townhouse 4 would receive about 2 hours from the western windows and about half and hour from an eastern window. He considered that the proposal would achieve an acceptable level of solar access particularly given that townhouses 2 and 3 had a northern orientation. Findings 34Clause 14(e) of SEPP 2009 provides that the application cannot be refused: ......... (e) if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter. 35Two of the four townhouses do not meet this requirement. However, it does not automatically follow that the application must be refused on this basis. There may be circumstances where due to the orientation or constraints of the site that solar access to 70 per cent of the townhouses cannot reasonably be achieved but that on balance they achieve acceptable amenity. However, these are not the circumstances of this case. There is no reason that the proposal could not be designed to achieve and even exceed the requirement in cl 14(e). The deletion of two garages in the proposed conditions and/or the relocation of garages to the front (southern) side of townhouses 1 and 4 could enable these townhouses to have north facing living and open space areas. 36Section 2 - Site Planning and Design of the Guidelines includes the Objective to provide high levels of amenity for new dwellings. The Design Principles state that Site design should be driven by the need to optimise internal amenity... and orientate dwellings to on the site to maximise solar access to living areas and private open space. These Objectives and Design Principles are also included in Section 5 - Internal Site Amenity. 37Mr Harding raised concerns about the design of the proposal dictated by the access to parking in the centre of the development, which has placed constraints on the proposal and resulted in poor design outcomes and amenity for the townhouse. I accept his evidence that the solar access to the proposal is unacceptable and that this combined with other amenity issues demonstrates that adequate consideration has not been given to the Guidelines as required by cl 15 of SEPP 2009. Other matters 38The residents referred to other aspects of the proposal, such as impacts on privacy and solar access to adjoining properties and parking and traffic that would adversely impact on their amenity. While I recognise that these matters are of concern they would, of themselves, not warrant refusal of the application. Orders 1. The appeal is dismissed. 2. The development application (913/2010/HB) to demolish an existing dwelling and construct multi dwelling housing at 26 Moseley Street, Carlingford, is refused. 3. The exhibits may be returned. 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. Decision last updated: 08 February 2011