Sunday, January 29, 2012

DA1305 - Letter from Rt Hon Greg Smith

The General Manager
Hornsby Shire Council
PO Box 37
Hornsby NSW 2077
29 January 2012

Dear Sir,
Representations concerning a DA for a proposed development at Beecroft on land currently described as 7,9 and 11 Hannah Street and 129-131 Copeland Road, Beecroft-for multi unit flat buildings up to 5 storeys, described as “affordable housing”
I have received scores of emails, letters and phone calls from my constituents who live nearby the subject site, seeking my support in opposing the abovementioned DA. I have examined various documents on Council’s web site, including the Statement of Environmental effects.
The context
To put the application in context, it seeks to make use of the provisions of  the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), which was introduced by the former Labor State Government to stimulate building activity during the 2009 Great Financial Crisis. Under certain conditions, the SEPP ARH allowed developers exemptions from Council zoning laws which prohibited the building of home units and flats in single dwelling areas. This understandably aroused fierce resistance among residents living in affected areas. As a consequence, with the election of the O’Farrell Government, the new Minister for Planning and Infrastructure, the Hon Brad Hazzard announced on 20 May 2011 that as a result of concerns that developers were using to override local codes in order to build flats in single home zoned areas, the Government had decided to limit the ambit of the SEPP. His Media Release of 21 May 2011 stated:
“The NSW Coalition Government today dumped Labor's laws that allowed private developers to override local communities' planning controls under the guise of 'affordable housing'.
"Getting affordable housing delivered is critical but Labor's laws were just a backdoor deal for small-time developers to make a fast buck," Minister for Planning, Brad Hazzard said today.
"Labor's promise to deliver affordable housing through private developments turned into nothing more than an opportunity to deliver overdevelopment, out of character with local areas.
"Communities have expressed concern about this issue right across the state."
"The Liberals & Nationals made a promise to address community concerns and today we have delivered.
"Under Labor's policy, 20% of each development was supposed to be leased to middle income workers at below market rates.
"There is no evidence that the butchery committed on communities has resulted in housing being made available to those in need.

"There is evidence developers were using this Labor law as a backdoor method to make vast amounts of money out of overdevelopments.
"The Liberals & Nationals Government has therefore stopped all new private development applications while an Affordable Housing Taskforce is established to reform the failing system.
"For existing applications there will now be a requirement that developers build in accordance with the existing character and landscape of neighbourhoods.”
"Developers will also be stopped from producing a few small units to satisfy the 20% affordable housing rule, while delivering 80% as large money making housing.
"This is a clear message that the Liberals & Nationals Government is serious about delivering affordable housing but stopping developers destroying local communities in the process," Minister Hazzard said.”
On the same day an amendment to SEPP ARH was gazetted, which made significant amendments to the 2009 instrument, notably amending Clause 10, deleting Clauses 11 and 12 and adding Clause 16A.
Reasons to reject DA
In the light of theses major changes, I submit that there are compelling reasons why the Panel should reject the application.
Firstly, the design of the development is incompatible with the character of the local area. The buildings to be demolished are homes, which are surrounded by other homes, as  there are no home unit/flat buildings in either Hannah or Copeland Streets. None of the neighbouring dwellings approach the 5 storey proposal for which this DA seeks approval. The houses to be demolished have many trees growing, some of them large and trees are an important feature of this beautiful suburb. Yet a large number of trees, 71 out of 95 are proposed to be cut down to complete the development.
The amended SEPP included Clause 16A:

16A Character of local area

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. (emphasis added)

I agree with comments in the submission of the Beecroft and Cheltenham Civic Trust when it stated:

The character of the local area is controlled by Hornsby Council’s zoning of the area. The zoning of the subject land is Residential AS low density – sensitive lands. This zoning is unique to Beecroft and Cheltenham and was, amongst other things, created to protect the suburb from inappropriate development such as residential flat buildings. The objectives of the zoning are clear…
Hornsby LEP 1994—Reg. 7 includes in the Zoning Control Table the following definition:

“Residential AS (Low Density-Sensitive Lands) Zone
Objectives of Zone
(a) to provide for the housing needs of the population of the Hornsby area.
(b) to promote a variety of housing types and other land uses compatible with a low density residential environment and sensitive to the land capability and established character of this environment.
(c) to provide for development that is within the environmental capacity of a sensitive low density residential environment.
Without Development Consent Development for the purpose of:
Home occupations; special care homes.
Exempt development.
Only With Development Consent Development for the purpose of:
Child care centres; commercial home catering; community facilities; demolition; dwelling-houses; group homes; home offices; housing for aged or differently abled persons; multi-unit housing; recreation areas; recreation facilities; utility installations.
Prohibited Development that is not permitted without development consent or permitted only with development consent.
Description on Map Coloured pink with red edging and lettered “AS””
There is no support for the applicant in the reference to “multi-unit housing”, as it is defined in the dictionary to mean: "2 or more dwellings, whether attached or not, but does not include a hotel or motel"
Clearly the emphasis in this zoning is on achieving and preserving a low density residential environment.

This is confirmed by the Hornsby Shire Council’s Low Density Multi-Unit Development Control Plan, which states at p.14 in relation to “Height”:

“Element Objective

To control the height of buildings in order to maintain a consistent residential character and maximise privacy, solar access and views

Performance Criteria

Dwelling height should suit the streetscape and topography of the area. Dwelling height should not unreasonably restrict sunlight to adjacent properties.

Prescriptive Measures
Multi-unit dwellings should generally not exceed 3.6m in height measured vertically from the natural ground level to the ceiling (ie. Generally not more than a single storey).
Any permitted encroachment into the setback areas should be single storey.
Council will allow two storey buildings at the street frontage where it does not adversely impact upon the streetscape, privacy, solar access and views enjoyed by adjacent properties.
Two storey buildings should generally not exceed 9m in height measured vertically from the natural ground level to the ridge line.”  

Respected environmental lobby group Bang the Table’s analysis of the Hornsby LEP states at p.54
The Low Density Multi-Unit Housing DCP applies to Residential A, AM and AS zoned land and promotes two unit detached and attached development. The DCP contains elements controlling setbacks, design, height, privacy, solar access, open space, landscaping, vehicular access and parking, acoustics and heritage.

Land and Environment Court decisions support rejection

On several recent occasions, the Land and Environment Court has interpreted the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) to uphold a refusal by a local Council to grant development consent to a developer due to such incompatability.

In Peninsula Developments Australia Pty Ltd v Pittwater Council [2011] NSWLEC 1244, Commissioner Tuor dismissed an appeal against Pittwater Council for rejecting a development application which proposed:
o        Demolition of the two existing dwellings and associated outbuildings;
o        Excavation of the site;
o        Construction of a residential flat building comprising two basement car parking levels and part two and part three storey residential levels;
o        Associated tree removal and landscaping works;
o        Consolidation of the lots into one lot and strata subdivision of the completed development.
The DA in that matter had been lodged before the changes were made to the SEPP  and was subject savings and  and a transitional provision.The development would contain 24 apartments (8x1 bedroom, 3x1bedroom + study, 8x2 bedroom, 3x2 bedroom+ study and 2x3 bedroom units). Of these units, 12 units (7x1 bedroom, 3x1 bedroom + study and 2x2 bedroom + study) were to be maintained as affordable rental housing managed by a registered community housing provider for 10 years. Nine of these units are designed as adaptable housing.

The proposal included basement parking for 38 cars of which 13 were accessible spaces. Vehicle access to the basement area was to be by a ramped driveway along the western boundary and pedestrian access to the building was along the eastern side of the site to two entry foyers. Two lifts would provide access to all levels.
In the course of his judgment, the Commissioner took into account another planning instrument, SEPP  No. 65-Design Quality of Residential Flat Development, which applied to the development and stated at [21]:
Clause 30 of SEPP 65 requires a consideration of the design quality principles, which relevantly include.
Clause 9 Principle 1: Context
Good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a location's current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area.
Clause 10 Principle 2: Scale
Good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area.
Clause 11 Principle 3: Built form
Good design achieves an appropriate built form for a site and the building's purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.
Clause 12 Principle 4: Density
Good design has a density appropriate for a site and its context, in terms of floor space yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing density in an area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality.
22.The Residential Flat Design Code (RFDC) is also a relevant consideration under cl 30 of SEPP 65.

I make the following submissions concerning these principles:

As to Clause 9 Principle 1: Context, the location’s current character is starkly different from the proposed development. The precinct is a part of mainly a village atmosphere and despite possible future developments close to the railway station, which have been strenuously opposed by many residents, there are no 5 storey units in amongst the single residential development, nor even town houses and villas in the immediate precinct. The Hornsby Council housing strategy deliberately omitted areas west of Beecroft Road, where the subject site is situated.

As to Clause 10 Principle 2: Scale, the proposed development does not satisfy the definition of “good design”. The bulk and height clashes with the scale of the street and surrounding buildings. The precinct is not undergoing a transition and the development does not achieve the scale identified for the desired future character of the area.

As to Clause 11 Principle 3: Built form , the proposed development would overwhelm surrounding homes and clash with the appearance of those homes. It would not contribute to the character of the streetscape and its size and appearance would be an eyesore to the neighbours and reduce their quiet enjoyment of their homes. For example, Katherine Edwards of 15 Hannah Street which is directly affected on 2 sides states that, “Building 1 (Hannah Street frontage) and Building 2 (immediately behind us mean that we have 20 units looking straight into our windows.” Also the proposed driveway which swings around at the back corner of her garden is 1.8 metres above the level of her garden. This could mean she ends up with a fence height of 3.8 metres

 As to Clause 12 Principle 4: Density, the number of units and residents proposed is excessive and unsustainable with the existing density in the area.

Many of the undesirable aspects of the development described by the Commissioner are relevant to this case, particularly those discussed under the heading, “Findings from Paragraphs 59 to 72.

See also Sterling Projects Pty Ltd v The Hills Shire Council [2011] NSWLEC 1020, where Commissioner Tuor stated at [27]:

“I 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. “

 Development Control
While Hornsby Council has not specifically made an Area DCP for Beecroft, the applicant’s solicitor concedes in Appendix 12 to the DA,
“As we understand it, Council has questioned whether Division 1 of Part 2 of the …SEPP ARH applies to the land (in accordance with clause 10 of SEPP ARH), such that the development for the purposes of residential flat buildings (where at least 20 percent of the dwellings in the building will be used for affordable housing) is permissible with consent (pursuant to clause 11(b) and 12).”

While the solicitor then seeks to demonstrate this view of the Council is wrong, he appears to overlook the fact that Clauses 11 and 12 have been deleted by the amending SEPP. The amended Clause 10 has a much narrower ambit than its predecessor. He also has overlooked the Height prescriptions outlined above for the Low Density Multi-Unit Housing DCP.

Other reasons for rejection

Copeland Road is a very busy road in the morning and afternoon due to parents driving their children to and from Beecroft Public School, which is a very large school. It is also very busy in peak hours due to it being a through road between two other very busy roads, Pennant Hills Road and Beecroft Road.
The traffic is described by my constituents living in Copeland Road as follows:

Cynthia Kardell of no. 94:

“The proposed development lies only a short distance from the traffic lights at the intersections of Copeland Rd & Hannah St with Beecroft Rd. I will refer to the development as the DA.
Traffic is queued back to my home for about 20 minutes in peak hour now, and also on the weekend albeit at different times. The DA would unacceptably increase the time that the through & local traffic would queue and it would restrict entry / exit to the site for residents, service vehicles and visitors generally, given its proximity to the lights. It will increase carbon emissions, thereby reducing any gains from improved fuel & technological developments in the car industry.”

Rae Clarke of no. 105:

“My between York Street and Hull Road and morning traffic is often banked back beyond my house.”

Environment damaged

The blue gum forest which is 150 years old is critically endangered yet I am informed the development would remove about 18 long growing blue gums and threaten others.


Hannah Street is parked out on weekdays on both sides for a considerable distance east of Beecroft Road. Much traffic struggles through and the development would aggravate this.

The Hornsby Shire Heritage Development Control Plan aims to:
  • Conserve the heritage significance of the natural and built environment;
  • Ensure that alterations, additions and infill development are sympathetic to the identified heritage values of the Shire; and
  • Control the demolition of heritage items.
The Heritage DCP supplements the HSLEP 1994 by providing controls to manage the heritage of Hornsby Shire. The purpose of the DCP is to provide guidance and outline specific controls for development relating to heritage items and within Heritage Conservation Areas. Controls include guidelines to conserve the heritage significance of the natural and built environment and ensure new development is sympathetic with the identified heritage values. The controls address design, streetscapes, siting, fences, gates and landscaping. Heritage controls do not prevent development, rather, they ensure that change takes place in a way that does not detract from the values that make heritage items special.
It is submitted that the development will damage the heritage of this part of Beecroft. The destruction of 71 trees will make the ambience less attractive and involve destroying birds nests and habitats of possums and other fauna. There are several heritage homes near to the site. I refer to the further details provided by  various constituents in their letters of objection.


It is submitted that the 2011 changes by the current Government to the SEPP tightened the ambit of development for affordable housing and that proper application of the amended SEPP strengthens the case for rejection. These changes laid particular emphasis on avoiding development which damaged the character of an area. It is submitted that this development would cause extensive damage to the character of the area, damage the heritage of the area, damage the amenity and is not in the public interest. Further, the development would greatly exceed the prescriptive measures set out in the Low Density Multi-Unit Housing DCP, defeating the purpose of zoning restrictions.
For these reasons the application should be rejected.
Yours sincerely,

Greg Smith SC MP,
Member for Epping 

No comments:

Post a Comment