Developer Succeeds In Obtaining Expansion of Saturday Work Hours

A developer has successfully challenged a condition of consent which restricted the hours during which it could carry out construction works on Saturdays.  The condition imposed by the council that the developer considered to be problematic limited construction work to the hours between 8 a.m. and 12 noon. As a result of an appeal against the condition that was taken in the Land and Environment Court, the hours of permissible work were enlarged to extend from 8:00 a.m. until 4 p.m.  The Court's decision allowing the increase in working hours, Landmark Group Pty Limited v Lane Cove Council (2014) NSWLEC 1187, can be found at the following link:  http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174004.

The background of the case was that in March 2014, the Council had adopted a resolution which prohibited construction work on Saturdays to between 8 a.m. and noon, and thereafter, all consents for residential flat buildings in a particular district of the Council's local government area had included this limitation. According to the Court's judgement, the Council did not provide for public consultation before it passed the resolution. The area where the restriction was applied was one that had been "up-zoned" to allow buildings of greater density, and as a result, at the time of the appeal the district was composed of single family dwellings and a number of large apartment buildings under construction. The Council took the view that the restriction was necessary to give local residents a "respite" from the noise of construction works on Saturday afternoons, and thus to protect amenity.

The developer that appealed against the restriction on Saturday hours argued that it was "uneconomic" because the practical result of the restriction was that the developer was required to pay contractors for a full day's work on Saturdays when their employees would actually work only half a day.  The developer also asserted that many contractors would simply not turn up for a half day's work on Saturdays, and that if they did, they would bring only a skeleton staff, so that construction would be progressed very slowly if at all.

The particular state of the building, and the nature of the works that the developer proposed to do during the expanded hours, were pivotal to the outcome of the appeal. At the time that the condition restricting the hours of work was brought, the construction had already progressed to a point where the building was "a shell with walls".  The developer was prepared to accept a limitation on the building works to be allowed to relatively "low impact" work such as tiling, partitioning, gyp rocking, carpeting, and the like, and to refrain from heavier, noisier works such as excavation, haulage truck movement, rock picking, sawing, jack hammering and pile driving. The developer was also prepared to carry out continuous acoustical monitoring, and to appoint an on site manager to ensure that controls on the level of noise emitted by the construction works would be followed. 

The Court (per Commissioner Dixon) found that the Council resolution that had led to the uniform imposition of a restriction of working hours on all consents for residential flat buildings was only entitled to limited weight, because it had been enacted without allowing for consultation from the "developer community". Commissioner Dixon took the view that she should review the application for modification of the condition restricting working hours on its individual merits. In the event, she accepted the evidence of the acoustical expert who had been retained by the developer that the proposed limited construction works would not, in the particular circumstances, result in an unreasonable noise impact on the surrounding community. Accordingly, the Court found that it was acceptable to grant an enlargement of the hours during which the light construction work could be carried out until 4 p.m. in the afternoons on Saturdays.

The result in this case demonstrates that it is possible for a developer to obtain an increase in the hours during which construction works may take place on Saturdays. However, it appears from the decision that the prospects for obtaining such an expansion of working hours will be governed by the specific factual background of each case and that it will be easier to secure longer working hours for "light" construction works that have lesser noise and amenity impacts.  There is also a lesson that conditions of consent that are adopted pursuant to a council  resolution that has been passed without public consultation will be susceptible to challenge.

Court Refuses Proposal To Demolish House in Heritage Conservation Area

A development application that proposes the demolition of a historic building that is contributory to a heritage conservation area will not have an easy path to approval in the Land and Environment Court.  The high hurdle that such development applications will face was illustrated again in a recent decision issued by Commissioner Tuor, Brookfiled Design Pty Ltd v Hornsby Shire Council and Samuels v Hornsby Shire Council, (2014) NSWLEC 1191. Commissioner Tuor's judgement in the case can be found at the following link:  http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173870

The application at issue in the case sought approval for the demolition of an "interwar" bungalow that had originally been built in 1936. The house is located in the Beecroft-Cheltenham Heritage Conservation Area of Hornsby council's local government area. The Character Statement for the area that forms part of the Council's Local Environmental Plan included "Prescriptive Measures" which specified that buildings from the interwar period should be retained, and that demolition should be considered only where it is "not reasonable to alter and extend to meet contemporary amenity and living standards".  Furthermore, the Council's Development Control Plan includes provisions which state that demolition of buildings that are characteristic of a heritage conservation area should be avoided when they are intact or easily capable of having characteristic details reinstated.

Alterations had been carried out to the house that was the subject of the demolition proposal, including the addition of a first floor level with gabled dormers and a rear extension. Competing expert opinion was offered to the Court by experts for the applicant and the Council concerning whether the building remained an "intact" example of an interwar dwelling.  

Commissioner Tuor ultimately accepted the evidence of the Council's heritage expert. She found that although changes had been made to the roof of the building, the majority of the front of the house was still easily recognisable as an interwar building.

Additional factors were identified by Commissioner Tuor as supporting her conclusion that there was not sufficient justification to allow demolition of the house. These included the fact that the house was in good condition, was structurally sound and was capable of providing a level of accommodation to meet contemporary requirements. A further reason for dismissal of the appeal was the absence of evidence that alternative options for development on the site which did not involve demolition had been considered  (for example the placement of a proposed new house to the rear of the existing interwar building). 

It is suggested that the considerations which led the Court to refuse approval for demolition in this case will have general application in other similar cases. Thus, applicants who are seeking to replace buildings in heritage conservation areas with modern structures are likely to face an uphill battle, and should exercise caution before investing the time and expense of pursuing such proposals.

Proposal for Boarding House Doomed by Design Issues

It is often the case that the most difficult obstacle standing in the path of approval of a proposal for a boarding house that is made under the "Affordable Rental Housing SEPP" is the requirement under clause 30A of the SEPP that the boarding house development will be "compatible with the character of the area".

However, a recent judgement by Senior Commissioner Moore, Revelop Projects Pty Limited v Parramatta City Council, (2014) NSWLEC 1167, illustrates that even where the proposal satisfies the 
"compatibility test:", a development application is not necessarily "home free". A failure to comply with design requirements in the relevant council's Development Control Plan can be a separate and independent grounds for rejection of the development application.

The proposal that was at issue in the Revelop Projects case sought approval for the construction of a boarding house in the Talopea district of Parramatta Council's local government area. Commissioner Moore noted in his judgement that the applicable planning controls envisaged that the future character of the area would have greater density than at present, when it consists predominantly of single storey, single residence buildings. The Commissioner observed that the Council had recently granted approval for a residential flat building on the adjoining property. Commissioner Moore also took note of the fact that properties opposite the site had height control limits of 15 and 20 metres. Apparently due to the permissible height of future development in the area, along with the fact that the Council's Local Environmental Plan provided that boarding houses are a permissible land use in the high density residential zone where the site is located, Senior Commissioner Moore (applying the Court's planning principle in Project Venture Developments v Pittwater Council (2005) NSWLEC 191) determined that the proposal would be compatible with the future character of the area.

Unfortunately for the applicant, Senior Commissioner Moore went beyond the "character test:" and examined the particulars of the design of the proposal. This exercise led the Senior Commissioner to identify two design issues which he considered to be insurmountable.

The first of these issues arose because the proposed boarding house was on a corner site. The Senior Commissioner took note of diagrams in the Council's DCP which indicated that buildings placed on corner sites should have a "curvilinear and articulated presentation to a corner" that would provide a "soft and not aggressive" definition of the corner.. In contrast the Senior Commissioner determined that the proposed development (depicted above) would have a "bold and assertive" presentation to the corner. The Senior Commissioner decided that this treatment was so out of character with what he considered to be envisaged by the Development Control Plan that it warranted refusal of the development.

The second issue that proved fatal to the proposal was the failure of the design to provide for communal rooms on each level of the boarding house. Although the Affordable Rental Housing SEPP only requires that there be one communal room for a boarding house with 5 rooms or more, Senior Commissioner Moore determined that this is a minimum requirement. Accordingly, the Senior Commissioner found that Parramatta Council's DCP, which requires a communal room on each floor, was not in conflict with the Affordable Housing SEPP. 

Notwithstanding the fact that there was evidence before the Court that due to the high level of internal amenity that would be provided in each of the rooms of the proposed boarding house it was not necessary for the building to have a communal room on each floor, Senior Commissioner Moore reached the view that it was not appropriate in the circumstances of the case to depart from the requirement that there be a communal room on every floor. The Senior Commissioner found that this was again reason enough to reject the proposal.

The result in this case providers a cautionary lesson to developers who would seek to rely on the Affordable Rental Housing SEPP: not only is it essential that the design be configured to ensure that the proposal meets the test of compatibility with the character of the surrounding area, but it is equally important that the design requirements of the applicable Development Control Plan also be adhered to.

The Court's decision in the case can be found at: http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=173569

Application for Subdivision Approval Falls Over Due To Concerns Regarding Lot Size and Bush Fire - One Lot Too Many

The Land and Environment Court has upheld Warringah Council's refusal of a development application which sought approval for a subdivision.  The decision of the Court, per Commissioner Morris, Sternhell v Warringah Council (2014) NSWLEC 1168, can be found at the link below: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173645

The site that was the subject of the development proposal is located in the Wheeler Heights locality and comprises a total land area of 2,481 square metres. The site borders a Council-owned bushland reserve and is mapped as bushfire prone. The section of the reserve closest to the subdivision site consists of an opened grassed area that is regularly mowed by local residents, with denser vegetation situated farther from the property.

The application proposed subdivision of the property into 4 separate allotments. All of the new lots were smaller than the minimum lot size of 600 square metres allowed under the relevant council controls. This shortfall was due in part to the fact that some of the land was required for vehicular access ways which could not be included in the calculation of lot sizes under the Council's Development Control Plan.  Therefore, the applicant sought a variation of the minimum lot size requirement, contending that this requirement was unnecessary and unreasonable in the circumstances.

The other major difficulty presented by the proposal was that it called for use of a portion of the mowed open grassland portion of the Council-owned reserve as an asset protection zone for bushfire purposes, and did not make provision for an asset protection zone within the land area covered by the subdivision itself. The applicant suggested during the proceedings that it would be prepared to seek to acquire an easement over the land proposed to be used as an asset protection zone for the purpose of carrying out vegetation management works. However, the Council indicated that it was disinclined to grant any easement over the reserve lands.

The Court concluded that it was not appropriate in the circumstances of the case to allow a variation of the minimum lot size standard. The Court found that allowing such a departure would result in frustration of the objective of promoting subdivisions consistent with the pattern, size and configuration of the lots in the surrounding locality.  The proposal was determined to be inconsistent with the previous subdivision pattern, because the great majority of those earlier subdivisions involved only the creation of 2 or 3, and not 4  lots, and the majority of the lots created by those subdivisions met the minimum size requirement. 

The Court also determined that the application was unworthy of approval because it did not make provision for an inclusion of an asset protection zone within the site. The Court found that it was unsatisfactory and inconsistent with the requirements of the applicable controls for the proposal to rely on use of the Council-owned reserve land, especially since a subdivision design approach was available (namely, limiting the subdivision proposal to 2 or 3 lots) that would have enabled inclusion of the asset protection zone within the site.

While it is understandable that a developer would seek to maximise the development potential of a property, the result in this case illustrates that that economic objective might not be achievable in every case. Constraints, such as a preexisting subdivision pattern in the locality, may limit the financial potential that may be realised from a property. The lesson that can be taken from this case is that comprehensive due diligence will enable any such constraints to be identified at an early stage, and for the prospective developer to frame their subdivision plans accordingly.  

Court Holds That Mature Sydney Redgum Tree May Be Removed to Make Way for New House

In a previous post, we discussed a recent judgment of the Land and Environment Court where the presence of three Sydney Turpentine trees on a proposed development site caused a development application to fail: see our article concerning the Court's decision in Arkbuilt Pty Ltd v Ku-ring-gai Council, (2014) NSWLEC 1161.  In the Arkbuilt case, Commissioner Dixon concluded that the applicant had failed to consider plausible design solutions that would have allowed the retention of the trees, and thus dismissed an appeal against the refusal of the application.

By contrast, in P S Graham & Associates v Hornsby Shire Council (2014) NSWLEC 1153, Commissioner Brown decided that a large, healthy Sydney Redgum tree could be removed to facilitate the construction of a new house. The two cases, with divergent results, provide interesting food for thought about how issues relating to the protection of significant trees may affect the outcome of planning appeals in the Court.

The development application at issue in P S Graham & Associates sought approval for the demolition of an existing house and the construction of a new two storey dwelling in the leafy Sydney suburb of Beecroft. The development site was a large, steeply sloping block of land encompassing nearly 4,000 square metres. The property is located in a heritage conservation area, and some of the street trees located in the vicinity of the site were also designated as heritage items of local significance under Hornsby Council's local environmental plan.

Commissioner Brown concluded that there were a number of circumstances that justified the removal of the tree. First, the Commissioner accepted the evidence of the applicant's ecologist that the tree was a common species which was widespread in the locality of the site, and that removal of the one tree would not adversely impact on biodiversity or wildlife corridors. Secondly, the Commissioner found that removal of the single tree would not have an unacceptable impact on the character of the heritage conservation area.  

Further, the Commissioner rejected suggestions by the Council's planning expert that removal of the tree could be avoided by situating the new house on the foot print of the existing dwelling.  The Commissioner accepted that placing the new dwelling in the same location would result in adverse overlooking and amenity impacts on the two adjoining properties. Additionally, the Commissioner determined that allowing the removal of the tree would enable the new house to achieve a consistent front setback with the adjoining properties, and would thus promote a consistent streetscape.

The lesson that can be drawn from this case is that approval can be obtained for the removal of a large, healthy native tree if the tree is not rare in the locality and if there are sufficiently strong planning considerations to justify the work - for example, where alternative design proposals that would allow retention of the tree would lead to undesirable amenity impacts on neighbouring properties.

Land and Environment Court Clarifies Built Form Permissible Under Classification of "Shop Top Housing"

In Hrsto v Canterbury City Council (No 2) (2014) NSWLEC, Justice Sheehan has confirmed that the residential components of a development must truly be physically "above" the retail and business elements in order for a proposal to be classified as "shop top housing".  

Justice Sheehan's decision was made in relation to a development application which proposed the construction of 5 inter-related buildings. The designs for 3 of the 5 buildings did not call for any commercial or retail space on the ground floor levels at all. Rather, the ground floor levels of these buildings were all designated for use as dwellings.  Retail space was proposed for the ground floor of one of the other buildings, and a cafe and gymnasium were proposed for the ground floor of the final building. However, the plans for both of these buildings also called for dwelling units on the ground floor. The plans for the development specified that most of the space on the ground floor levels of the buildings in the complex would be dedicated to dwellings.

The permissibility of the development, which was to be situated in a zone designated "B2 Local Centre" hinged on its being classified as "shop top housing", because "residential accommodation" (defined under the Council's LEP to include multi-dwelling housing and residential flat buildings) was classified as a prohibited use.

The applicant argued in its submissions that the multi-building development could be characterised as "shop top" housing so long as one or more dwellings in any of the buildings was located above the level of the retail and business premises in the other buildings. It was the applicant's further suggestion that it would be permissible to locate dwelling units on the same ground floor level of buildings in the complex where the retail/commercial premises were proposed, again so long as any of the other buildings in the complex contained dwelling units above the ground floor level.

Justice Sheehan categorically rejected the applicant's submissions concerning the manner in which "shop top" housing can be configured. Instead, he accepted the Council's arguments that in order for a building to be classified as shop top housing, dwelling units must be located in the same building as the commercial/retail elements, and must be "above" those elements, in the sense of being at a floor level higher than the top of the level where the retail/commercial elements are located. Thus, Justice Sheehan held that where the predominant form of a development proposal is to provide for dwellings on the ground floor levels, with no retail or business use in several buildings in a "multi-building" complex, that proposal cannot be considered to be "shop top" housing.

The decision by Justice Sheehan did not specifically address the question of whether any dwellings can be located on the ground floor level of a single building which also includes other dwellings at a level above retail or business space. The answer to that question will have to wait until another day; however, it does appear from the judgement that the amount of space allocated on the ground floor to dwellings would have to be limited, and be perhaps significantly less than the area allocated to retail and business use, in order for the shop top classification to be available.

The Court's decision, which was handed down on 14 August 2014, can be accessed at:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173285

Preservation of Sydney Turpentine Trees Trumps Proposal for Unit Block Development in Lindfield

The Land and Environment Court has rejected a development application that called for the removal of three Sydney Turpentine trees to make way for a mixed use apartment and commercial development project near the Lindfield Train Station. The decision Arkbuilt Pty Ltd v Ku-ring-gai Council,was handed down by Commissioner Dixon on 14 August 2014 and can be found on the Court's Website at the following link: 

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=173416.

The development application sought approval for the construction of 62 apartments over three levels of undergound car parking, a small neighbourhood shop and a larger gourmet grocery on a consolidated site consisting of 5 properties over 6000 square metres of land. There was considerable pre-existing development on the site - including a service station, residential units and a residential dwelling, and adjacent land uses include medium to high-density residential apartment blocks and a small-scale shopping complex.

As the Court found that the development proposal otherwise satisfied the objectives for the land use zones where the site if located, the sole obstacle to the project was the presence of 3 mature Sydney Turpentine trees on the land.  Aerial photography dating from the 1940s indicated that the trees are at least 70 years old. The applicant contended that the removal of the trees was necessary for the development because they obstructed access to the proposed basement car park entry. The applicant further argued that removal of the trees would not be problematic because the trees were allegedly in a state of decline due to "root rot". There was evidence that there had been a decline in the health of the canopies of the trees.  It is of interest that the Council's expert witness, who holds qualifications in arboriculture and horticulture, concluded that the most likely reason for the decline in the health of the trees was poisoning and not root rot (as evidenced by the presence of a drill hole in one of the trees and "frilling cuts" on another of the trees.

Ultimately, the appeal failed before the Court because the proposal fell afoul of a clause in the Council's local environmental plan relating to biodiversity protection. This provision of the LEP specified that development consent could not be granted unless the consent authority was satisfied that the proposal was designed to avoid potentially adverse environmental impacts and would not be inconsistent with the objective of maintaining and improving the diversity and condition of native vegetation.  

Two strands of evidence were fatal to the applicant's case in this appeal: The evidence of the Council's ecologist that the removal of the Sydney Turpentine trees would have an adverse impact on the long-term survival of the endangered Sydney Turpentine Ironbank Forest in the Ku-ring-gai Council local government area, and, perhaps equally critically, the Commissioner's conclusion that the applicant had not exhausted all possible design alternatives that would avoid the need for the removal of the trees.

The primary lessons that can be drawn from this case are that development applications that propose the removal of mature and ecologically significant trees are potentially fraught with difficulty (even in circumstances where such trees are growing on land that is already highly urbanised and intensively developed). Furthermore, proposals that are not thoughtfully designed to avoid adverse impacts to sensitive environmental resources are apt to be looked upon with disfavour by the Court.