Land and Environment Court New South Wales Medium Neutral Citation: McLain v Hunters Hill Council [2011] NSWLEC 1390 Hearing dates: 13, 14 and 23 December 2011 Decision date: 23 December 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)Development consent is granted to development application number 2010/1085 for the demolition of the dwelling houses and the construction of a medium density residential flat development containing six units with basement parking at numbers 25-27 Ryde Road, Hunters Hill, subject to the conditions in Annexure A. (3)The exhibits are returned on publication of the judgment. Catchwords: DEVELOPMENT APPEAL - demolition of dwelling houses and construction of residential flat building; whether the development is an appropriate interface between the medium density zone and the residential zone; its relationship with the adjoining conservation area and heritage items Legislation Cited: Environmental Planning and Assessment Act 1979 The Hunters Hill Village 2009 Local Environmental Plan (the LEP) Hunters Hill Local Environmental Plan No 1 Hunters Hill Development Control Plan for Hunters Hill Village Hunters Hill Development Control Plan No 15 - Residential Development Hunters Hill Development Control Plan No 25 - Sustainable Water State Environmental Planning Policy Number 65 - Design Quality of Residential Flat Development and the Residential Design Code Category: Principal judgment Parties: McLain (Applicant) Hunters Hill Council (Respondent) Representation: Counsel Mr J Robson SC (Applicant) Mr J Cole (Respondent) Solicitors Shaw Reynolds Bowen & Gerathy Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10749 of 2011 Ex-tempore Judgment 1This appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 relates to Hunters Hill Council's refusal of an application to demolish two dwelling houses and construct a new residential flat building at 25-27 Ryde Road, Hunters Hill. 2The development comprises construction of a basement car park and six residential dwellings with associated landscaping. The amended plans comprise two (2), two-storey detached dwellings facing Ryde Road with the remaining four units being located in a separate building consisting of two storeys with an attic level to the rear of the site. 3The contentions raised by council at the commencement of the hearing as detailed in their statement of facts and contentions dated 27 September 2011 are: (1)Visual impact, design and streetscape The proposal fails to comply with the character of the Hunters Hill locality and will have an adverse visual impact on the streetscape when viewed from the surrounding property. (2)Heritage The building does not appropriately deal with its interrelationship with the heritage items at numbers 22 and 24 Avenue Road, or the conservation area. (1)Tree removal/damage The proposal will significantly impact upon existing trees on the subject site and adjoining. (2)Landscaping and garden area The proposal is an inappropriate response to the landscape character of the area and under the Hunters Hill DCP 15 and Hunters Hill Village DCP. (3)Drainage The proposal does not identify appropriate drainage treatment for the site in accordance with DCP 25. (4)Internal amenity impacts The proposal will significantly overshadow itself and particularly unit 2. There are also adverse privacy impacts of overlooking internally. (5)Neighbourhood impact The proposal has adverse impacts on surrounding neighbours in relation to privacy, visual, noise and overshadowing. (6)Car parking The proposed car parking includes visitor spaces within the area for access to private dwellings. (7)Inadequate information/inadequacies with the plans and noncompliances with the practice directions are also noted in the facts and contentions. (8)Matters raised by the objectors to the proposal. 4The hearing commenced with a view of the site and the locality. At that time the Court heard the evidence of several objectors, including representatives from the Hunters Hill Trust, The National Trust and the owners of the properties adjoining the site. The Court also received expert evidence from town planners, heritage experts, arborists, engineers, landscape consultants and an urban design expert. 5This is the first medium density development to be considered under the provisions of the Hunters Hill Local Environmental Plan (Hunters Hill Village) 2009 in the R3 medium density residential zone. Located north of the Hunters Hill village, the site is proximate to local schools and neighbourhood shops. It fronts Ryde Road and is located within the C1 Heritage Conservation Area. Its rear boundary adjoins dwellings within the residential 2A(3) zone fronting Avenue Road. The site shares a part common boundary with a dwelling at number 22 Avenue Road and is in close proximity to a dwelling at 24 Avenue Road. Number 22 and 24 are identified as heritage items. 6The central issue, which I must determine is whether the development provides an appropriate interface development to transition between the medium density zone and the residential zone. Subject to a determination of that issue, the parties have essentially resolved the other contentions by the agreed conditions, which are marked Annexure A. 7Condition 45A addresses the council's concerns about appropriate landscaping and the retention of existing trees including the Jacaranda tree. 8Condition 27A addresses the noise, amenity and privacy concerns raised by the adjoining neighbour at number 23 Ryde Road. The drainage and sewerage easement issues are dealt with in condition 30A. The privacy louvres along the western and eastern ends of the first floor balconies to the rear building to prevent overlooking onto the adjoining properties are provided for in condition 79A. 9The relevant statutory controls for the site are detailed in council's statement of facts and contentions. They are: * The Hunters Hill Village 2009 Local Environmental Plan (the LEP) * Hunters Hill Local Environmental Plan No 1 * Hunters Hill Development Control Plan for Hunters Hill Village * Hunters Hill Development Control Plan No 15 - Residential Development * Hunters Hill Development Control Plan No 25 - Sustainable Water * State Environmental Planning Policy Number 65 - Design Quality of Residential Flat Development and the Residential Design Code 10The Hunters Hill Local Environmental Plan (Hunters Hill Village) 2009 (HHVLEP) and the Hunters Hill Development Control Plan - Hunters Hill Village (HHVDCP) are the main planning instruments which affect this application. Although the HHVDCP refers to the need to consider other development control plans, the HHVDCP prevails where there is an inconsistency. 11I place no weight on the draft Development Control Plan - No 28 - Hunters Hill Village which has recently been placed on exhibition after council resolution to that effect. 12The development complies with the relevant controls in the DCP in respect of height, floor space ratio and boundary setbacks at the front and the rear. There is also no issue in relation to solar access. The experts agree in their joint report, exhibit 4, that the courtyards for units 1 and 2 will achieve solar access in compliance with the Hunters Hill Village Development Control Plan. 13The setback of the driveway at 1.6 m allows for appropriate landscaping of the planter boxes over the car park area. The boxes were enlarged to allow for greater soil depths to achieve sustainable planting. While there is a breach of the 1.5 m side setback control at the entry of the basement car park (which is located below natural ground level), the experts now agree that any unacceptable noise impacts are dealt with by the agreed conditions. Streetscape to Ryde Road 14Mr McDonald at para [2.3] of the joint report (exhibit 4) accepts that the removal of the roof structures over the balconies which face Ryde Road will provide a single storey element to the street. That, coupled with requiring the balconies at level 1 to have the lower part of the balustrade masonry and the upper part transparent, will according to the experts achieve a better integration of the development into the existing streetscape. The new buildings do not project forward of the existing buildings being demolished. Mr McDonald agrees these changes will improve the visual bulk when viewed from Ryde Road. While Mr McDonald maintained his view that a different design could better mediate between the two storey scale and the predominant single storey scale of the streetscape to Ryde Road, he conceded the development as amended was acceptable in the streetscape. Solar access 15There was some disagreement about the adequacy of the solar access to the living/dining space of unit 2 to achieve the three-hour solar access as required by the HHVDCP. The space marked "living room" on plan DA03 achieved one and two-thirds hours of direct sunlight while the windows and doors off the area marked dining achieved two and a quarter hours of direct sunlight. Mr McDonald was of the opinion that the individual windows and doors off the living and dining do not achieve three hours of sunlight. However, given the open plan design of the living and dining area, I prefer Mr Baker's assessment that those spaces are not separate spaces but one continuous living area, and that the combined solar access available through the windows along the rear to the living area of the development make it compliant. Transition zone 16I accept Mr Baker's assessment that the siting, scale and form of the development is responsive to council's controls that have up-zoned the northern side of Ryde Road. However, development's FSR and height are significantly less than the permitted maximum in order to meet council's objectives for the Ryde streetscape. The built form and character presents as separate single dwellings on the front portion of the site facing Ryde Road. The development appears at the street frontage to be consistent with the general pattern of development on Ryde Road and also the desired future character as per council's controls. It has been specifically designed to locate the remaining bulk on the rear portion of the site. However, I accept Mr Baker's assessment that various architectural features have been used to significantly reduce the perceived scale of the rear building. 17Both planning experts agree that the stepping of the building reduces the length of the walls and creates multiple roof planes. The roof design pitched from the external walls as required by the DCP is a series of planes with dormer views. Mr Baker believes this articulation of the building together with the use different materials, the insertion of balconies and flat roofs over the kitchens in units 5 and 6, results in a building, which is less bulky. I accept his expert assessment. 18Much of the evidence turned on the interpretation of figure 5 at p 12 of the HHVDCP. Mr McDonald expressed the opinion that the development in figure 5 at p 12 illustrates a transition of a single storey from a two storey. He explained to the Court that in his assessment this is the appropriate design interface between the site and the adjoining heritage residential properties. He said that this was underscored by the stated requirement in bullet point 1 of the objectives to cl 1.2 of the HHVDCP which states: Provides a transition in scale and density to the residential area to the north. 19Mr Baker and Mr Turisi disagree. They are of the opinion that figure 5 in the HHVDCP is to clearly delineate the core envelope controls, which are a setback to the rear, a setback to the street and height requirement, with an acknowledgment to provide a 2 m deep soil zone along the rear boundary. I accept their evidence. In any event this figure is only illustrative and not a control. Visibility of the development 20Many of the objections raised by the residents in Avenue Road concerned the fact that the development will be visible from their backyards and entertaining areas and Avenue Road itself. The view confirmed their evidence. Parts of the development would be seen from some of the objectors' properties and Avenue Road. However, visibility of part of the development is not of itself the issue. The question is, does it have a unacceptable impact on their amenity, privacy or result in unacceptable overlooking? There is no dispute that the zoning of the site permits a two-storey dwelling house. It is also probable that a two-storey dwelling would also be visible from the above locations. 21I accept Mr Baker's evidence that even though portions of the rear building may be visible from the heritage items adjacent to the rear boundary and from limited locations on the Avenue Road, the mere appearance of a relatively small additional element in their viewscape does not justify refusal of this application. While landscaping alone should not be relied upon to address issues arising from bulk, scale and overlooking impacts it can soften the visual impact of a development. In this development the planting of mature trees and hedging as proposed and the retention of the Jacaranda tree will soften have that effect. 22The hedge behind the tennis court on the property at 22 Avenue Road along the common boundary with the site is approximately 3.1m. It is a visual buffer to any development on the site. And the primary open space for 22 Avenue Road is located on the south-eastern side of their rear yard and there will be no overlooking of that area by people standing on the balconies of the development. I am satisfied that the objection raised by the owner of 22 Avenue Road have been satisfactorily addressed. 23The objector from 22A Avenue Road raised concern about overlooking from the balcony of the development to their rear terrace and pool area. That area is setback some 32m from the rear boundary and some 38 m from the balcony of the development. Given that distance and the proposed landscaping I am satisfied that any unacceptable privacy amenity impacts are addressed. 24There is potential for overlooking from the balcony at unit 5 to the pool area of number 24 Avenue Road. Although at the view it was made clear the overlooking will not extend to their cabana area or that half of the rear yard demarcated by a diagonal from the south-west corner to the north-east corner. Having said that I am satisfied that the proposed privacy screen to balcony 5 and the retention of the tree and additional landscaping will satisfactorily address any unacceptable overlooking. 25Based on the evidence before me, the proposal represents medium density development as envisaged by council's current controls. This development is appropriate for this site given its particular constraints and features. Given that the DCP is the focus of my consideration, the development achieves the DCP's objective to achieve a transition of scale towards the development to the north. I accept the heritage evidence of Ms Kemp that the impacts on the modified heritage items at 22 and 24 Avenue Road listed in the LEP are acceptable. The development respects the building line consistent with the stated objective in the LEP. At para 70 of her report, exhibit K, she states: Due to the orientation of views from the adjacent heritage listed buildings away from the subject site and the existence of obscuring modern additions to the heritage listed properties, there is considered to be no adverse impact of views from the rear of the two heritage items number 22 and 24 Avenue Road as a result of the development. 26The view confirmed Ms Kemp's evidence. The proposal accords with the objectives of cl 5.10 of the LEP. It conserves the environmental heritage of Hunters Hill, the heritage significance of the adjacent heritage items and the heritage significance of the conservation area. I accept Ms Kemp's evidence that the design of the development responds to the context of the site on Ryde Road within the conservation area while also responding to the other applicable planning controls for development in this area. The development respects the 1919 subdivision pattern to Ryde Road and uses building forms with vertical proportions and hipped roofs and this reflects the conservation context of the site in accord with cl 4.2 of DCP 15. The development is sympathetic to the adjacent heritage items as required by cl 4.2(e) of DCP 15. I accept Ms Kemp's evidence that the development is consistent with cl 4.6 of the DCP 15 (which refers to article 8 of the Burra Charter) and the development will not have an adverse impact on views from the heritage items for the reasons listed at para 87 of exhibit K. 27Having said that, however, there is no doubt that the development represents a change in the streetscape but council has zoned this site for medium density development. For the above reasons I am satisfied that the development sits comfortably in the Ryde Road streetscape and its juxtaposition with the adjoining residential zone is acceptable on a merit assessment under s 79C of the Act. 28Accordingly the Court makes the following orders: (1)The appeal is upheld. (2)Development consent is granted to development application number 2010/1085 for the demolition of the dwelling houses and the construction of a medium density residential flat development containing six units with basement parking at numbers 25-27 Ryde Road, Hunters Hill, subject to the conditions in Annexure A. (3)The exhibits are returned on publication of the judgment. Susan Dixon Commissioner of the Court Amendments 20 April 2012 - Representative for the Applicant ammended from Robinson to Robson SC. Amended paragraphs: Judgment Coversheet under heading Counsel 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: 20 April 2012