Adams v Sutherland Shire Council

CASES CITED: Tenacity Consulting v Waringah [2004] NSWLEC 140

APPLICANT Mr S. Kondikios, solicitor and Ms P. Adraskelas, solicitor of Maddocks Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr J. Reilly, solicitor of Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10943 of 2006 Leo Adams v Sutherland Shire Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 This appeal was lodged against Council's refusal of a development application for the construction of a new 2-storey dwelling on a vacant allotment at No. 10 Bonnie Doon Place, Burraneer.

2 A number of issues were initially identified, but subsequent conferencing between the parties resulted in amended plans for the proposal. Consequently the only outstanding issue concerns the degree of impact on views from neighbouring properties, otherwise the amended proposal complies with all of the relevant development controls. Details of the site, the proposal, the planning controls are contained in the Statement of Basic Facts on which I rely. Planning Controls 3 In summary however, the site is zoned 2(e) residential and it is within a Scenic Foreshore Protection Area under Sutherland Shire Local Environmental Plan 2000 (SSLEP 2000) and the proposal is permissible with consent. I note that SSLEP 2006 was recently gazetted, however it contains a savings clause to the effect that SSLEP 2000 is the prevailing control in this case and LEP 2006 is to be considered as if it was exhibited as a draft document. The evidence 4 The detailed planning evidence was presented by Mr D Crane, a consulting planner and Ms D Pinfold, Council's Town Planner. These experts conferred and prepared a joint report, Exhibit 3, together with a further report design showing alternative building envelopes, which is Exhibit E and Mr Phillips contributed to this.

5 A detailed objection was received from the neighbouring property owners, Mr and Mrs Webb, who live diagonally opposite at 5 Bonnie Doon Place. Their objection is against the height and location of the proposed new dwelling due to the intrusion into view corridors from their property. They say that a more considerate design could maintain reasonable view corridors and still allow a high standard amenity for the property owners of the new dwelling.

6 As a result of the joint planning conference, Mr Crane says that the amended design has been considerably reduced in height by 500 mm at the ridgeline, as compared to the maximum height of 9 m allowed by the controls and he says it is in the order of 1.2 m below the ridgeline of the adjoining house at No. 12. Furthermore, Mr Crane says that as the building envelope complies with the other controls, he considers that it merits consent.

7 Whilst Ms Pinfold acknowledges the technical compliance with the controls, she still considers that some sensitive detailing of the proposal could result in a better outcome in terms of the planning controls and principles in terms of view sharing. In particular she says that there are opportunities to shift the building footprint northerly, so as to reduce the proposed setback of 2.9 m side boundary clearance, also to lower the roof structure to improve the views from No. 5 Bonnie Doon.

8 These possible amendments were further discussed by the planners and project architect, Mr Phillips, in terms of alternative side boundary setbacks and ridgeline levels. These experts conferred and presented two alternative designs (Exhibit E) to enable assessment of view impacts.

9 By reference to: Alternative 1, which is the current development application; Alternative 2, then is defined by the heavy line, with 1.43 m side setback and further 500 mm lowering of the ridgeline; and Alternative 3, defined by dotted line with 1 m setback and 200 mm ridgeline (pert) lowering.

10 From reference to Exhibit E, both Mr Crane and Mr Phillips consider the benefit of further lowering of the ridgeline by the extra 300 mm unnecessary and the incremental improvement in views is insignificant. Mr Phillips opposes this additional lowering because it means cutting into the site and increasing drainage risks. Also it introduces additional steps, which the owner wishes to avoid.

11 However, Ms Pinfold says that the further lowering of 500 mm overall is a reasonable balance between the view retention and the property owner's amenity for the new dwelling. Conclusion: 12 Having considered the evidence, the submissions and undertaken to view, I am satisfied that the proposal merits conditional consent. The threshold issue concerns the degree of view intervention of the new residence into the existing view corridors. In this regard I note that the planning controls and I accept that SSLEP 2000 is the prevailing control.

13 Accordingly the objectives in the residential 2(e2) area provide that the character of the area is one and two storey detached residential dwellings. On this basis, I consider that the loss of views to neighbouring owners due to this prescribed type of building now being undertaken, has to be discounted in terms of the building on the current vacant allotment.

14 Then the special considerations in cl 30 provides: "that when assessing the impact of residential land use proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone." 15 The consent authority must take into consideration the following matters and must not grant consent unless it is satisfied those matters have been adequately addressed by the relevant documentation and they include: (a) The impact that the proposed development may have on the adjoining development, buildings and open space; (b) The effect of the proposed development on the quality of the streetscape; and (c) The cumulative impact of successive development on the general character of the neighbourhood and clause 34 goes on to detail the height development standards to which the development demonstrates comfortable compliance.

16 As I have noted the proposed development building envelope complies with all the numeric development controls and the amended proposal, i.e. Alternative 1, is 1.2 m below the neighbouring ridgeline at No. 12.

17 However, the parties have reasonably referred to the principles outlined in Tenacity Consulting v Waringah [2004] NSWLEC 140 which I have also considered. This is on the basis that the view loss from the upstairs main bedroom windows is the critical one because whilst there are view losses from the ground floor, it would be unreasonable to give significant weight to these losses due to the planning opportunities / expectation for development of the vacant allotment.

18 Therefore: Test 1; Involves the views that are affected and they are the distant Port Hacking views and part of Hungry Point. Test 2; As I stated, the main reference point is the loss of views from the upstairs main bedroom. Test 3; Involves the assessment of views from the whole property and I discount the view loss from the ground floor due to the building on the vacant allotment. Test 4; Then concerns the reasonableness of the proposal that causes the view intrusion. 19 In this regard I have considered the alternatives presented in Exhibit E and I consider that Alternative 3, with a further reduction of the ridgeline of 200 mm and the side boundary setback in the order of 1.43 m provides additional water views towards Bundeena, which Ms Pinfold considered important.

20 The incremental change with a further 300 mm does not seem reasonable in my assessment because it compromises the design of the building and introduces potential drainage problems by necessitating the cutting of the ground floor into the natural ground levels. This additional 300 mm that might be achieved in Alternative 2 only results in marginal view improvements in my opinion and that is consistent with the evidence of Mr Crane and Mr Phillips. Even the extra 300 mm does not achieve the water/land interface view to Hungry Point which Mr and Mrs Webb would like to achieve.

21 Therefore I accept Mr Crane's and Mr Phillip's opinion that a modified Alternative 3, with ridge line lowered by 200 mm and 1.43 m side setback, represents a reasonable balance between the property owner's expectation and reasonable access to water views from the neighbouring property.

22 Accordingly I am satisfied that this modified Alternative 3 satisfies the requirements of cl 30 of the LEP and the Tenacity Principles and in this regard I give significant weight to the fact that the proposed building has been amended to demonstrate comfortable compliance with all the building envelope controls for this residential 2(e2) zone, as this is the type and scale of dwelling envisaged in this zone.

23 Accordingly, the court orders are: 1. The appeal is upheld; 2. Development consent is granted to DA06/0870 for the construction of a new dwelling at 10 Bonnie Doon Place, Burraneer, subject to the conditions in annexure A; and 3. The exhibits may be returned, except for 2, 3, 4, A and E.

      R Hussey
      Commissioner of the Court
      ljr

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