Land and Environment Court New South Wales Medium Neutral Citation: Developcorp Pty Ltd v Hornsby Shire Council [2017] NSWLEC 1232 Hearing dates: 4 May 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Class 1 Before: Smithson C Decision: 1. The appeal is upheld. 2. Development application No. 1699/2015 for a multi- unit housing development at No.'s 12 and 14 Carden Avenue, Wahroonga is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits 1 and F, are returned. Catchwords: DEVELOPMENT APPLICATION: Multi-unit housing development; resolution of contentions by amended plans and conditions Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hornsby Local Environmental Plan 2013 Category: Principal judgment Parties: Developcorp Pty Ltd (Applicant) Hornsby Shire Council (Respondent) Representation: Solicitors: Mr J Cole, HWL Ebsworth Lawyers (Applicant) Mr P Jackson, Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/184981 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Hornsby Shire Council (the Council) of Development Application No. DA/16992015 (the application). 2. The application, as amended, proposes the demolition of all existing structures on the site and the construction of a multi-unit housing development containing 10 dwellings each being two storeys plus attic over a common basement car park with 20 car spaces. The development comprises two 2 bedroom and eight 3 bedroom dwellings. 3. The development as refused comprised three storeys in a residential flat building form containing 16 dwellings. This development was notified and two objections were lodged in response. The objectors raised concerns with site isolation, the development being inconsistent with the character of the area in terms of bulk and scale (with no other three level buildings in the area), inadequate landscaping, and parking and traffic concerns. 4. The amended application was also notified with no objections lodged and the Court was advised that one of the two original objectors was satisfied with the proposal as amended. The site and locality 1. The site is known as Lot 1 and 2 DP 200572 and has an area of 1277 m². It has an irregular rectangular shape with a frontage of 26.31m to Carden Avenue and a depth of approximately 49m. Each lot currently contains a dwelling house. The site has a general slope from east to west of approximately 8%. 2. The site is located within an area zoned R3 Medium Density Residential. A two storey townhouse development with basement parking adjoins the site's northern side boundary and part of site's western boundary. Existing low density dwellings yet to be redeveloped for medium density housing adjoin part of the site's rear western and southern side boundaries. To the north is a B2 zone. 3. The proposed development is permissible in the zone under the provisions of the Hornsby Local Environmental Plan 2013 (the LEP). The maximum permissible height under the LEP is 10.5m. 4. Residential development is subject to the provisions of the Hornsby Development Control Plan 2013 (the DCP). The amended application 1. The refused application lodged in December 2015 proposed 16 dwellings. The development as proposed did not comply with the maximum height required by the LEP and was considered by the Council to constitute a residential flat building, being 3 storeys, rather than multi-unit housing comprising townhouses with attics considered more appropriate for the zone. 2. A range of design concerns were raised including but not limited to the internal amenity given proposed solar access, privacy impacts and room and balcony sizes, with the communal open space, deep soil provision and landscaping, and with building separation and setbacks. Concerns were also raised in terms of stormwater and waste management. 3. The appeal was the subject of conciliation under section 34 of the Land and Environment Court Act 1979 in October 2016. The Council raised 14 contentions which were the subject of the conciliation. The contentions were that the design of the development was unacceptable in terms of its height, roof form, separation of built form, residential amenity, communal open space, solar access provision, cross ventilation, landscaping and vegetation. Contentions were also raised in terms of non-compliance with numerous design criteria of the Apartment Design Guide, and that there was inadequate motorcycle parking, stormwater management and waste management. 4. Conciliation was undertaken between October and December 2016 in an attempt to resolve the contentions. Following termination of the conciliation conference in December 2016, an amended proposal arose which reduced the number of dwellings to 10, reconfiguring the form of development to two storeys with attics and proposing a number of design changes to address the Council's concerns. 5. In March 2017, leave was granted by the Court to amended plans and documentation which sought to reduce the number of contentions. 6. Revised contentions were filed by the Council in April 2017. Whilst a number of contentions had been addressed, concern remained with elements of the design and landscaping in terms of compatibility with the character of the area, and with the internal amenity of some of the dwellings. It was suggested that a number of these concerns could be resolved by conditions of consent whilst further information was sought with regard to specific aspects of the revised proposal. 7. The applicant and the Council continued to conciliate outside the formal conciliation process to address the remaining contentions. Expert referral was undertaken between the urban designers, planners and engineers for the parties with joint expert reports filed by the time of the hearing. The experts agreed on further plan amendments or recommended conditions to address the vast majority of unresolved contentions. 8. At the commencement of the hearing it was confirmed by the parties that all matters had been resolved other than final minor internal design changes, confirmation of the adequacy of the proposed stormwater disposal and waste arrangements, and agreement on the acceptability of the proposed height and gradients of the ramp to the basement car park. 9. With a short adjournment these matters were resolved by proposed conditions and a final set of amended plans. Leave was granted to the amended plans and a final set of agreed conditions were subsequently filed with the Court. This included a deferred commencement condition to allow alternative stormwater disposal options to be further considered. 10. The Court noted from the expert planning report that the original concerns of the objectors, insofar as they were reasonable or relevant to the application, had been addressed and this was confirmed by the parties. Findings 1. Given all of the contentions had been resolved between the parties, and addressed the concerns raised in submissions, I have determined that the appeal should be upheld and the development application, as amended, be approved subject to the agreed conditions. 2. In coming to that conclusion, I accept that there will be no adverse amenity impacts on any adjoining residential property or the area which would warrant refusal. In this regard, I note that no objection was raised to the amended proposal, and that one of the two original objectors attended the Court with the Council advising the Court of that objector's satisfaction with the amended application. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development application No. 1699/2015 for a multi-unit housing development at No.'s 12 and 14 Carden Avenue, Wahroonga is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits 1 and F, are returned. ............................ Jenny Smithson Commissioner of the Court 184981.16 Annexure A (C) (129 KB, pdf) 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: 09 May 2017