Land and Environment Court New South Wales Medium Neutral Citation: Revelop Projects Pty Limited v The Hills Shire Council [2012] NSWLEC 1117 Hearing dates: 23 April 2012 Decision date: 11 May 2012 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld Catchwords: DEVELOPMENT APPLICATION: residential flat development - affordable housing; whether the development is compatible with the character of the local area Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009 Environmental Planning &Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005 State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Category: Principal judgment Parties: Revelop Projects Pty Limited (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: Applicant: Mr M Arch (Solicitor) Respondent: Mr A Hudson (Solicitor) Solicitors: Applicant: Concordia Pacific Respondent: Wiltshire Webb Staunton Beattie File Number(s): 10082 of 2012 Judgment 1COMMISSIONER:Revelop Projects Pty Ltd proposes to demolish an existing dwelling and associated structures and construct a residential apartment building containing nine units and basement car park at 34 Cecil Avenue Castle Hill. Five of the units are to be dedicated as affordable rental housing units under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 2The applicant is appealing The Hills Shire Council's refusal of the proposed development (Development Application No. 363/2011/HB). The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act). 3The primary basis for the refusal is that the development is not compatible with the character of the local area. The site and its locality 4The site is a 1158m2 lot on the north-eastern side of Cecil Avenue, Castle Hill. There is a fall from the street from south-east to north-west of about 3.5m. 5There is a single storey dwelling and garage on the site. There are a number of large and established trees growing throughout the property. 6Adjoining the site to the north-west is a two storey townhouse development of eleven units with attached garages. The townhouses closest to the common boundary are setback between four to six metres. The property adjoining the site to the south-east is a single storey cottage. To the rear is a dwelling set well back from the common boundary. There is an approved townhouse development at 10-16 Cecil Avenue (to the north-west) currently under construction. The Court was advised that the two allotments to the south-east are currently subject to a discussion with council regarding a proposal for townhouses. 7The south-western side of Cecil Avenue in the immediate vicinity of the site is characterised by a mixture of three to four storey residential flat buildings, townhouses and single storey residential dwellings. 8The site is within close proximity to the Castle Hill Town Centre. The proposal 9The proposal seeks approval for the demolition of the existing dwellings and associated structures as well as the removal of a number of trees, including one street tree. 10The new development comprises a basement carpark above which there are two habitable floors containing one x one bedroom unit, seven x two bedroom units and one x three bedroom unit. The roof is a skillion roof and the design of the building is described as 'contemporary'. 11The car park is mostly below ground level and accessed directly from Cecil Avenue. The construction of the driveway will necessitate the removal of a street tree - a variegated Brush Box. An additional eight trees are listed for removal with another eight, including two street trees, listed for retention. Two of these trees include a large Spotted Gum at the front of the property and a large Sydney Blue Gum in the northern (rear) corner. The planning framework 12The site is at a zone interface and is currently zoned Residential 2(a2) under the Baulkham Hills Local Environmental Plan 2005 (BHLEP2005). While dual occupancies, townhouses and villas are permissible with consent, apartment buildings are prohibited. The other side of Cecil Avenue is zoned Residential 2(a1) in which apartment buildings are permissible. 13Under the Draft The Hills Shire Local Environmental Plan 2010 (HSLEP 2010), the site is proposed to be zoned R3 - Medium Density Residential in which residential flat buildings are prohibited. 14The application relies on compliance with Part 2 (New affordable rental housing) - Division 1 (in-fill affordable housing), SEPP (Affordable Rental Housing), which permits residential flat buildings, and the Savings provision in cl 54A(3) of the State Environmental Planning Policy (Affordable Rental Housing) Amendment 2011. This states: 53A(3) If an existing application relates to development to which Division 1 or 3 of Part 2 applied, the consent authority must not consent to the development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 15In the current version of SEPP ARH, this requirement is found in cl 16A - character of local area: 16A A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 16The site is within an 'accessible area' - as defined by SEPP ARH cl 10(2) as it is within 400 m walking distance from a bus stop used by a regular bus service. 17Clause 14 of SEPP ARH specifies the standards that cannot be used to refuse consent. The proposal complies with the development standards for: density, scale and FSR (cl 14(a)); site area (cl 14(b)); landscaped area (cl 14(c)); solar access (cl 14(e)); parking (cl 14(2)(a); and dwelling size (cl 14(2)(b). While the original proposal did not comply with the standard for deep soil zones (cl 14(d)), subsequent amendments have achieved compliance. The proposal also complies with the height control of 8.5m in cl 11(a)(i) of SEPP ARH. 18The development is also subject to the requirements of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65). 19Notwithstanding the fact that apartment buildings are not permitted in the zone, the Statement of Facts and Contentions raises development standards in Baulkham Hills Development Control Plan: Apartment Building (BHDCP:AB). Relevant background 20The history of the development application and its assessment are detailed in the Statement of Facts and Contentions as well as in the report from council's Development Assessment Unit (DAU) dated 16 August 2011. In summary, after a number of amendments and clarifications were obtained from the applicant, the DAU recommended deferred commencement subject to a number of conditions of consent. Despite this recommendation, Council resolved to refuse the DA. 21An appeal was lodged with the Court. Council engaged a consultant Town Planner, Ms Deborah Laidlaw to assess the proposal and prepare the Statement of Facts and Contentions. 22In response to the contentions raised by council, the applicant prepared amended plans. These and the original plans were discussed by the parties' planners in the joint conference. During the joint conference, a number of differences between the parties were resolved with other amendments proposed by Ms Laidlaw. The applicant's planners, Ms Kerry Gordon and Mr Rohan Dickson agreed that, in general, the amendments sought were achievable and supportable. As a consequence, the plans were further revised to incorporate the amendments. The Court granted leave for the applicant to rely on the plans as further amended and dated 20 April 2012. The hearing The view 23The hearing commenced on site. Mr White, an objector, expressed his opinion that the zoning of the land prohibited residential flat buildings. While he recognises the need for different types of development, he considers the proposal to be an over-development of the site and of an inferior standard when compared to the development on the opposite side of the street. He also raised concerns about the location of a drainage easement and the impact it may have on the future development potential of the lot through which it was to be located. 24The site was inspected and the proposed setbacks from trees and adjoining properties noted. Council stated it had no objections to the large Spotted Gum (Tree 8 in the arborist's report) in the front garden being removed, however, the applicant stated their arborist advised them that the tree was retainable and they were happy to keep it. The planners indicated where changes had been made to ensure privacy issues had been addressed. 25Developments in the immediate vicinity were noted including apartment buildings in the nearest cross street to the south-east. 26Following the site inspection, the planners discussed some minor refinements to the further revised plans. The planners were not required for cross examination however they did assist the Court by clarifying the design elements to ensure privacy to the adjoining townhouses to the north-west. The applicant's position 27Mr Arch for the applicant submits that the Court, as the consent authority, must be satisfied that the proposed development is compatible with the character of the local area. That is, there is compliance with cl 54A of the 2011 amendment to SEPP ARH and cl 16A of the current version. 28In regards to compatibility with the local area Mr Arch cites the Planning Principle published in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. At [24] Roseth SC writes: 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. * Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. * Is the proposal's appearance in harmony with the buildings around it and the character of the street? 29In regards to the proposal's physical impacts on surrounding development Mr Arch contends that the further amended plans address the issues raised by council's planner in regards to setbacks, privacy and landscaping. The development potential of surrounding sites is not affected. The proposed drainage easement raised by Mr White is to be located on the north-western side of the property at the rear and this will not limit future development potential. 30With respect to the appearance of the building and its compatibility with those around it Mr Arch argues that the proposed building is within the height limits and its form is consistent with more recent flat buildings in the vicinity, including the residential flat building across the road. The further amended plans also address some of the design features, such as articulation, raised by Ms Laidlaw. 31In conclusion, Mr Arch contends that the proposal complies with all of the necessary development standards in SEPP ARH and is compatible with the character of the local area and therefore should be approved. He discussed the need to prepare final plans showing the refinements discussed by the planners during the hearing. The respondent's position 32Mr Hudson for the council raised no objections to the further revised plans. He drew the Court's attention to the DAU report to council and the submissions made by residents. He is satisfied that the proposal complies with the requirements of SEPP ARH and no issues were raised with respect to any other controls such as BHDCP:AB. 33In the light of the further refinements and discussions on site regarding the Spotted Gum, Mr Hudson discussed the need to review a number of draft without prejudice conditions of consent. 34In conclusion, Mr Hudson was in agreement that the final version of the proposal was one that council could accept. Findings 35Notwithstanding the fact that residential flat buildings are not ordinarily permitted in the zone, I am satisfied that the proposed development satisfies, and generally exceeds, the necessary controls in SEPP ARH and, importantly, the design is compatible with the local area and therefore satisfies cl 54A of the Savings provisions of the SEPP. The site view clearly indicated the mixture of residential development in the immediate area. 36I am satisfied that the ongoing refinements have been responsive to council's concerns regarding the amenity of nearby residents as well as ensuring compatibility with the character of the area. Minor changes to fenestration and incorporation of moveable privacy screens will ensure privacy to both residents of the adjoining town houses as well as future residents of the proposed development. The removal or lowering of raised decks and pathways similarly minimises concerns over privacy. 37The retention of a number of mature trees and the additional deep soil landscape will assist in maintaining that character and ameliorating the visual impact of the building. The height of the proposed units is well within the controls and the skillion roof reduces the bulk of the building. The changes to the depth of the basement and improved articulation of the facades similarly reduce the bulk of the building. 38While there will be a change in the streetscape, I am satisfied that the development will sit comfortably with other developments in the immediate vicinity. As agreed by the planners, the site is appropriately located for affordable housing. As five of the nine units are designated as affordable rental accommodation, I am satisfied that the proposal is in the public interest and is otherwise acceptable on a merit assessment under s 79C of the Act. 39Therefore, the Orders of the Court are: (1)The appeal is upheld. (2)Development consent is granted to Development Application No. 863/2011/HB for the demolition of existing structures and construction of a residential apartment building comprising nine units on land known as Lot Y DP 446006, known as 34 Cecil Avenue Castle Hill in accordance with the plans Issue/ revision H and subject to the conditions of consent in Annexure A. (3)Exhibits C, D, 2,3,4,5 and 6 are returned; exhibits A, B and 1 are retained. _______________________ J Fakes Commissioner of the Court 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: 11 May 2012