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[2004] NSWLEC 392
Land and Environment Court (NSW)
2004-07-15
Mrs J
Original judgment source is linked above.
The application is for demolition of an existing dwelling house and construction of a new dwelling house. The dwelling comprises: · Basement - 3 bedrooms, 2 studies and 2 balconies. · Ground floor - living, dining and family rooms, kitchen laundry and 3 balconies. · First floor - double garage.
Vehicular access to the site is currently available over an access handle off Fowler Road. The new dwelling will have vehicular access off Gascoyne Place by an elevated bridge structure due to the difference in ground levels along that particular frontage.
The proposed dwelling observes a 1 metre building line [to the point of the balcony but generally between 5m and 7m] to Gascoyne Place.
The development site is known as Lot 72 Deposited Plan 873237, being No. 9 Gascoyne Place, Illawong.
The land is "battle-axe" in shape with access to and from Fowler Road by an access handle and a right of carriageway and a frontage of 42.04 metres to Gascoyne Place. The depth of the site, measured from Gascoyne Place, is 22 metres. It contains an area of 1,018 square metres.
The site contains a freestanding 2-storey dwelling house with vehicular access off Fowler Road.
There is a level difference across the site, from north/west to south east of about 8 metres and the site is about 4 metres below the level of Gascoyne Place. There are a number of trees and shrubs around the northern, southern and western site boundaries.
The subject site is within a residential area characterised by detached dwellings. The distinctive visual characteristic of the locality is the open landscaped streetscene.
The site is zoned 2(a1) Residential and it is within a Foreshore Scenic Protection Area.
The objective of the 2(a1) zone is A residential environment: a where the scale, amenity and general character of the area is preserved, and b where the streetscape is characterised by detached 1 and 2 storey residential buildings, and c where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, town house or villa house developments, and d where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity.
Development that requires development consent includes Dwelling houses, Demolition not included in development allowed without development consent.
Clause 19 of SSLEP states: What is a Foreshore Scenic Protection Area? (1) The objective of a foreshore scenic protection area is to limit the scale of development and protect the landscape and visual character of foreshore areas of Sutherland Shire. (2) A foreshore scenic protection area is shown on the maps by hatching. It applies to land within a number of zones next to Bate Bay, Port Hacking, the Georges River and Woronora River. (3) Buildings in a foreshore scenic protection area are required by the development control tables to have more landscaped area than buildings outside the area.
Clause 30(a) of SSLEP 2000 states: When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it: (a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy, (b) the effect of the proposed development on the quality of the streetscape, (c) the cumulative impact of successive development on the general character of the neighbourhood, (d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area, (e) the retention and enhancement of existing vegetation, (f) any adverse impact on the natural and built environment, (g) the location of the proposed development in relation to potential risks, including flooding, bushfire and other hazards, (h) the impact that the proposed development may have on any public area or waterbody from loss of sunlight, views and visual amenity.
Clause 32 Bushland Considerations in SSLEP 2000 states: Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on: (a) the protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna, or (b) the protection of wildlife corridors and vegetation links with other nearby bushland vegetation, or (c) the protection of bushland vegetation as a natural stabiliser of the soil surface and the protection of existing landforms such as natural drainage lines, water courses and foreshores, or (d) the protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape.
Clause 34(2) of SSLEP 2000 sets height limits, ie · 7.2 metres to any point on the uppermost ceiling · 9 metres to the highest point of the roof
Clause 35(2) of SSLEP 2000 sets out the maximum floor space ratio for a 2(a1) zone as 0.45:1.
Clause 36(2) of SSLEP 2000 sets out the minimum landscaped area for a 2(a1) zone as 50% of the site area.
The Council adopted the Development Control Plan for Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones on 19 March 2001. It came into effect on 27 March 2001.
The purpose of the DCP, in clause 2, is stated to be to provide for energy efficient dwelling houses in the Residential 2(a1) and 2(a2) Residential zones to ensure consistency with other forms of residential development in the Shire.
Clause 9 has objectives and controls for energy efficiency. New dwellings are required to achieve a minimum 3.5 star energy rating using an approved HER tool such as NatHERS.
(c) Draft Sutherland Shire Local Environmental Plan 2004.
The site is affected by the provisions of Draft Sutherland Shire Local Environmental Plan 2004. This Plan zones the site Environmental Housing (Environmentally Sensitive Land).
The Draft Plan covers the whole of the Shire (except for the Kurnell Peninsula) and was originally exhibited from 18 February to 3 May 2003 as Draft Sutherland Shire Local Environmental Plan 2003.
Submissions received during the exhibition period were considered by Council in September 2003 and, following amendments to the draft instrument, a s.65 Certificate was issued by the Department of Infrastructure, Planning and Natural Resources to re-exhibit the Draft LEP. It was again exhibited, this time as Draft Sutherland Shire Local Environmental Plan 2004, from 1 December 2003 to 18 January 2004.
The objectives, development controls and development standards in DSSLEP 2004 generally remain the same as DSSLEP 2003, however the structure and format of the instrument has changed significantly. Council adopted DSSLEP 2004, with amendments, on 15 March 2004 and a report in accordance with s.68(4) of the EP&A Act was forwarded to the Department of Infrastructure, Planning and Natural Resources on 24 March 2004 for consideration and gazettal. A dwelling house is "development that requires development consent" in the Environmental Housing (Environmentally Sensitive Land) zone as set out in clause 26.1.4 in the Development Control Tables.
Building height is controlled in clause 8.4 in the same manner as SSLEP 2000.
Floor space ratio controls are in clause 8.5(3). For the subject site the maximum FSR is 358 square metres based on a site area of 908.74 square metres excluding the access handle.
Landscaped area controls are in clause 8.6(3). For the subject site the minimum landscaped area is 415 square metres.
Clause 9.1 deals with matters relating to bush fire risk. The subject site is within "Bush Fire Prone Land - Vegetation Buffer - 100m and 30 m" on Bush Fire Prone Land Map No. 20 accompanying the Draft Plan. Clauses 9.1(3) and (4) contain prerequisite matters for Council to consider before deciding to grant development consent.
Clause 11.3 deals with greenweb considerations. The subject site is noted as being within "Greenweb Support" on Greenweb Map No. 20 accompanying the Draft Plan. Controls for development in Greenweb Areas are contained in clause 11.3(4).
Chronology: · 18 November 2003 - Development application received by the Council
· 20 November 2003 - Council writes to the applicant requesting additional information to enable assessment of the application.
· 2 December 2003 - The applicant submits additional information to the Council as requested.
· 4 December 2003 - Council notifies nearby property owners and invites written comment on the development proposal. Notification period expires on 18 December 2003.
· 15 December 2003 - Council receives a letter of objection from the owner of 8 Gascoyne Place.
· 16 December 2003 - Council receives a letter of objection from the owner of 6 Gascoyne Place.
· 23 December 2003 - Council receives a letter of objection from the owner of 14 Gascoyne Place.
· 28 January 2004 - Council writes to the applicant with a list of deficiencies in the proposal and invites the applicant to withdraw the development application.
· 4 February 2004 - Council receives a letter of advice from NSW Rural Fire Service with conditions should the development application be approved.
· 17 February 2004 - Council receives a letter from the applicant advising that additional information is to be provided in relation to affect on trees.
· 8 March 2004 - Council's staff determine the development application by refusing to grant consent.
· 8 March 2004 - Notice of development refusal is produced.
· 10 March 2004 - Council notifies objectors of the decision to refuse the development application.
Greg Hand - Town Planner, prepared the above Statement of Basic Facts
IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
SUTHERLAND SHIRE COUNCIL Respondent The Respondent contends that the following matters are in issue:
HEIGHT, BULK, SCALE AND SITING STATEMENT OF ISSUES 1. The height, bulk, scale and siting of the development are unacceptable having regard to the adverse impacts on the streetscape and adjoining properties, and:
Particulars Filed for the Respondent Sutherland Shire Local Environmental Plan 2000
i. Clause 33 Objectives of the 2(a)(1) Residential zone - The proposal offends objectives (a) (the scale, amenity and general character of the area is to be preserved) and (b) (where the streetscape is characterised by detached 1 and 2 storey residential buildings).
ii. Clause 34 Height (a) The proposal offends objectives (a) (achieve consistency in the scale of buildings); (b) (minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy and views) - particularly in terms of numbers 8 and 14 Gascoyne Place and 188A Fowler Road; (c) (relate the building form to the topography of the site), and (d) (buildings are to maintain a maximum 2 storey appearance).
Chris Mathieson Principal Environmental Lawyer Sutherland Shire Council 4-20 Eton Street SUTHERLAND 2232 DX 4511 SUTHERLAND Phone: 9710 0676 Fax: 9710 0671 Ref: CRM
(b) The proposal exceeds the height limit development standards of 7.2m to the underside of the uppermost ceiling and 9.0m to the highest point of the roof (clause 34(2)(a)). No State Environmental Planning Policy No. 1 objection has been provided.
iii. Clause 30 Special considerations - The proposal is unsatisfactory having regard to (b) (the effect of the proposed development on the quality of the streetscape) and (d) (the impact of the proposed development on adjoining properties in terms of size, bulk and height).
Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones Development Control Plan
iv. Clause 11 Building Lines to Streets - The proposal offends objectives (1) (the visual impact of buildings on the street scene is to be minimised), (2) (buildings are to be compatible with and enhance the existing street scene), (3) (impacts on views are to be minimised) and (6) (buildings are to be sited so that gardens can be planted between the building and the street). v. Clause 11 Building Lines to Streets - Control: A minimum building line of 7.5m applies whereas the proposal is located 2.7m from the boundary.
vi. Clause 6 Objectives (a) Clause 6.1 Overall Objectives - The proposal offends objectives (a) (minimise visual impact on the street scene), (b) (buildings are to be compatible with the street scene) and (c) (minimise impacts on views). (b) Clause 6.2 Design Objectives - The proposal offends objectives (a) (structures are to blend into the residential environment and are to be unobtrusive in terms of size, bulk and height), (b) (structures designed and sited to protect the residential amenity of neighbours), (e) (parking which does not dominate the streetscape) and (f) (open form structures are preferred where there is an open street scene).
vii. Clause 7 - The proposed setback of 2.7m breaches the 7.5m building line.
Sutherland Shire Draft Local Environmental Plan 2004
viii. Clause 8.2(2) Residential Development - The proposal offends objectives (c) (to improve the quality of the streetscape) and (f) (to minimise impacts on adjoining properties in terms of size, bulk, height, scale and siting).
ix. Clause 8.4(2) Building Height - The proposal offends objectives (a) (to ensure the scale of development is consistent with the desired scale and character of the street) and (d) (minimise visual impact when viewed from adjoining properties and the street). x. Clause 8.4(3) Building Height - The proposal exceeds the maximum height of 7.2m to any point on the uppermost ceiling and 9.0m to the highest point on the roof.
xi. Clause 26.1 Environmental Housing (Environmentally Sensitive Land) Zone - The proposal offends objectives (a) (development is to compliment the natural landscape setting) and (b) (development is to be of a character, scale and nature that compliments the natural surroundings).
iv. The proposal does not satisfy special consideration (a) in clause 30 (impacts on adjoining buildings from loss of views and privacy)
Sutherland Shire Draft Local Environmental Plan 2004
v. Clause 8.2(2) Residential Development - The proposal offends objective (b) (minimise the impacts on adjoining development in terms of overlooking, views and privacy).
vi. Clause 8.4(2) Building Height - The proposal offends objective (c) (minimise impacts on adjoining or nearby properties in terms of view loss and loss of privacy).
i. The visual impact on the streetscape; ii. The likely impact on existing and future services in the road reserve; iii. The fact that vehicle and pedestrian access is already available from Fowler Road; iv. Whether it is appropriate to grant land owners consent to the development application in respect of that part of the suspended driveway to be located above the road reserve owned by Sutherland Shire Council.
v. Clause 30 Special considerations - The proposal is unsatisfactory having regard to (f) (adverse impact on the natural and built environment).
Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones Development Control Plan
vi. Clause 10 Car Parking - The proposal offends objective (2) which requires garages to be designed and located to compliment the dwelling and to minimise the impact on the natural landscape and views from adjoining properties. vii. Clause 10 Car Parking - The proposal offends Control 3, which provides that the minimum setback for a garage is 7.5m, as the proposed setback is 2.7m. viii. Clause 11 Building Lines to Streets - The proposal offends objective (5) which requires suitable access for the parking of vehicles to be provided or maintained.
ix. Clause 6 Objectives (a) Clause 6.1 Overall Objectives - The proposal offends objectives (a) (minimise visual impact on the street scene) and (b) (buildings are to be compatible with the street scene). (b) Clause 6.2 Design Objectives - The proposal offends objectives (a) (structures are to blend into the residential environment and are to be unobtrusive in terms of size, bulk and height), (e) (parking which does not dominate the streetscape) and (f) (open form structures are preferred where there is an open street scene).
Christopher Robert Mathieson Solicitor for the Respondent Dated: 19 May 2004
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.
Archiworks Architects Pty Limited
Sutherland Shire Council
CITATION : Archiworks Architects Pty Limited v Sutherland Shire Council [2004] NSWLEC 392 APPLICANT: Archiworks Architects Pty Limited RESPONDENT: PARTIES : APPLICANT: Archiworks Architects Pty Limited RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 10434 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Height - bulk and scale - Privacy Streetscape LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 - (SSLEP)Development Control Plan for Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones - Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: Meriton v Sydney City Council [2004] NSWLEC 313 - Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, DATES OF HEARING: 15/07/2004 EX TEMPORE 07/15/2004 JUDGMENT DATE :
18 There are proposed screens on the north and horizontal elements on the east, to reduce privacy impacts. The screens on the north, I accept, would significantly add to the bulk of the building and would physically intrude on the private open space of No. 14 Gascoyne Place. In relation to privacy Mr Mathieson made reference to the principles in the decision of Senior Commissioner Roseth in Meriton v Sydney City Council [2004] NSWLEC 313 paras 45-6.
22 Mr Mathieson submitted, and I accept the supporting evidence, that there is sufficient area for a three-point turn and for vehicles to enter and leave the site in a forward direction. I also accept the evidence that no safety issues would arise as the sightlines of drivers entering onto Fowler Road are good and the width of the road at that point has been increased by providing a slip-lane, which is very unusual in residential areas. As a result, main through traffic is well visible to drivers leaving the site in a forward direction. Mr Hoang accepted that for drivers leaving in a forward direction there would be no problem with sightlines. Access from Gascoyne Place to the proposed garage 23 The height limits seem to be exceeded as a result of the applicant's desire to obtain vehicular access to and from Gascoyne Place. The garage is included above the proposed building and the entire roof of the garage exceeds the 7.2m wall height and ridge itself exceeds the 9 m height limit for at least two-thirds of its length. SEPP1 objection 24 The applicant in a SEPP1 objection sought dispensation for height in respect of one isolated position. But as can be seen in Exhibit 10 the height has been exceeded along the eastern side and above the garage. So in terms of the prescription laid down in Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, 6 April 2001, paras 22 - 26, Mr Mathieson submitted that the applicant's SEPP1 objection should not be upheld as the applicant failed to demonstrate that compliance with the standard is unreasonable and unnecessary in the circumstance of the case.