Bachir v Kogarah City Council - [2013] NSWLEC 1124 - NSWLEC 2013 case summary — Zoe

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Bachir v Kogarah City Council

[2013] NSWLEC 1124

Land and Environment Court (NSW)|2013-07-02

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2013-07-02

Catchwords

MODIFICATION: increase in height of constructed dwelling
impact on streetscape

Source

Original judgment source is linked above.

Catchwords

MODIFICATION: increase in height of constructed dwellingimpact on streetscape

Judgment (15 paragraphs)

[1]

Judgment 1COMMISSIONER: The applicant appeals Kogarah City Council's refusal of a Section 96 Modification Application No. 347/2010/4 to allow an increase in building height and an increase in floor space ratio for a newly constructed two-storey dwelling. 2The appeal to the Court is made under s 97AA(b) of the Environmental Planning and Assessment Act 1979 (the Act), that is, as a deemed refusal. Since the filing of the Class 1 application, the council determined the s 96 application and resolved to refuse it.

[2]

The proposal, relevant background and the issues 3In January 2011, the council granted Development Consent No: 347/2010 for the demolition of an existing dwelling and construction of a new two storey dwelling with basement garage and in-ground pool on approved Lot 110, known as 59 Townson Street, Blakehurst (the site). The site is located on the corner of Townson and East Streets. 4The dwelling, including the pool and the garage has been constructed. 5The applicant has lodged a number of s 96 applications to modify the approved development. The history of applications is detailed in the council's Statement of facts and Contentions. While a number of internal modifications have been approved, the council has consistently refused approval to increase the height of various elements of the dwelling. 6The Statement of Environmental Effects included with the modification application describes the proposed modifications in the current application. These relate to the as-built form of the dwelling and are summarised as:

Basement level: additional space for access to plant equipment and lift; finished floor level raised by 30mm; backfilling of an excavated void space;
Ground floor level: finished as-built floor levels raised by 590mm at the rear and by 600mm at the front; changes to the size and configuration of internals spaces; enclosure of an alfresco covered area on western side of the kitchen beneath a first floor bedroom;
First floor level: as-built floor level raised by 670mm; as-built parapet of the two storey structure raised by 710mm;
Building height: as built height measured above natural ground level is 7.71m high on its western side, the two storey element on the eastern side is 7.87m-8.01m; lowering of the height of the as built rear alfresco structure to be 560mm higher than approved; and
Density: slightly increasing the FSR with the addition of about 2m2 to the gross floor area. 7The council contends that:
the development, as constructed, is excessive in scale, form and design and results in a structure that is visually intrusive when viewed from the street and adjoining properties and thus adversely affects the streetscape and the amenity of adjoining property owners;
the excessive height, scale and form of the development fails to preserve reasonable access to views of the Captain Cook Bridge from a neighbouring property;
the proposal is not in the public interest in that granting consent to the modification application would not provide for certainty in the planning process and would result in a development that does not achieve the council's planning objectives; and
there are deficiencies and inconsistencies in the plans, especially in regards to the position of the existing ground level (pre- development) and Basix Certificate. 8Following the provision of revised plans and a new Basix certificate, the final contention has been satisfied. The increase in FSR is not pressed. 9What remains are substantially two issues arising from the height of building: impact on view loss and impact on the streetscape from East Street 10The matter commenced on site as a mandatory conciliation in accordance with s 34AA of the Land and Environment Court Act 1979. However, as the parties were unable to resolve the matter, it proceeded to a hearing under s 34AA(2)(b). The Court had the opportunity to hear from the owner of No. 6 East Street and to observe the views from his dwelling as well as view the development from both East Street and Townson Street.

[4]

The assessment framework 16The site is zoned R2 - Low Density Residential under Kogarah Local Environmental Plan 2012 (KLEP) and the development is permissible with consent. 17Development Control Plan - Residential Design Guide 2005 (RDG) applies. The parties press a number of clauses. 18Clause 1.1 of Section 1 of RDG 2005, Introduction, explains the intent of the RDG. Specifically: The RDG establishes a set of objectives, design principles and standards for the character of the street and then requires applicants to demonstrate how their proposal satisfies the objectives, design solutions and controls. The presentation of new buildings in the street is the most critical element in the general public's perception of a development and the rate and scale of change in the locality. The main component of the RDG is to place the onus back on the applicant to demonstrate how their proposal "fits into" the character and scale of the street and immediate locality. The outcomes of the RDG do not focus on compliance with numerical requirements, although numerical requirements have been incorporated to ensure certain outcomes. The RDG requires, more importantly, that applicants demonstrate a consideration of design elements in the streetscape, identifying how the proposal responds to those elements. 19Section 2 - RDG - Urban Context Clause 2.1 Streetscape character: [relevantly], ...The presentation of buildings in a street is the most critical element and determines the character of not only the street, but also the locality. Clause 2.5.1 - Building Scale Performance criteria - Objective 2 Ensure that the height of the buildings does not overly impact on the streetscape or neighbouring properties. Design Solution (a) The maximum building height must be consistent with the requirements of Section 3.1. 20Section 3 - RDG - General Controls 3.1 Building Height... Height is an important control because it has a major impact on the physical and visual amenity of a place. It can also reinforce an area's existing character or relate to an area's desired character. Building height is also critical in addressing impacts from development such as solar access, privacy and views. Objectives · Ensure future development responds to the desired scale and character of the street and the local area. · Distribute building height and bulk on site so as to ensure that there is no significant loss of amenity to adjacent sites, open space and public streets. · Ensure that building heights respond to the scale of the street and surrounding buildings. Performance criteria Ensure that the height of development is not excessive and relates well to the local context. Design solutions Building height should comply with the requirements specified below: [relevantly] Single dwelling - Maximum height: 7.2m to underside of upper ceiling; 7.8m to the top of the parapet; 9m to the top of the ridge (pitched roof). 3.11 Views and View Sharing Views of waterways, bushland and district views contribute to the amenity of a property and the public domain. New development needs to be designed so that it is sensitive to existing view corridors and minimises impacts on views. "View sharing" considers the equitable distribution of views between properties. The view sharing controls seek to strike a balance between facilitating new development, while preserving, as far as practical, access to views from surrounding properties. Objective · That the principles of view sharing are considered in certain circumstances. Note: In making an assessment as to the reasonableness of a view, Council will consider the importance of a view. In this regard, a view's importance will be ranked as follows (from most important to least important). (i) Iconic Vews (eg. Tom Ugly's Bridge) (ii) Water views (iii) Bushland views (iv) District views (v) CBD views Performance criteria Minimise view loss from adjoining or nearby properties, whilst still recognising the development potential of a site. Design Solutions (a) In assessing the impact of a proposed development on the views of adjoining neighbours, Council will take into account the following: (i) An assessment of the views offered, and the importance of the view. (ii) Where the views are obtained from. In this regard the assessment of the extent and nature of the views will be made from a standing position (1.6m eye height) within the main living areas and from associated terraces/balconies of existing and proposed developments. (iii) Whether the proposed design is reasonable and whether an alternative design would provide the same development potential but reduce the impact on views. In some circumstances (...) the redevelopment potential of a site may result in some or total loss of views to neighbouring properties. 21State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) applies to the site.

[9]

Impact on views from 6 East Street 34The viewing points in contention are the east-facing rooms and an associated terrace on the first floor of No 6 East Street, which is diagonally opposite and to the north-west of the site. The rooms are described as the master bedroom and the children's bedroom. The children's bedroom adjoins the master bedroom to the north; a terrace extends from the children's bedroom to the front of the dwelling. The principal view in contention is of the Captain Cook Bridge (the bridge) to the south-east (see [22]-[25]). 35The planners agree that: the views available from this property are across the front setback, are distant, and extend from the north-east to the south-east, that is, are east-facing views; there is no living accommodation on the first floor, only the ground floor; any impact on view loss from the ground floor is acceptable; and, there is no view loss as a consequence of the additional height to the primary and secondary open space areas of No. 6. 36Mr Rowan and Mr Devlin agree that a person standing on the roof terrace has a distant panoramic district view including the horizon, Kogarah Bay, the northern foreshore of the Georges River and the northern end of the Captain Cook Bridge, unaffected by the additional height of the applicant's dwelling. They agree that, given the angle of the view, the bridge does not rise above the horizon but is visible against the backdrop of the landform beyond. They agree that the approved height would have enabled a view of the arch, with some water below, on the horizon. They consider it is not possible to determine if the full length of the bridge would have been visible if the applicant's dwelling had been built as approved. 37In regards to the impacts on views, the differences between the planners relate to the significance of the view, the development potential of the site (applicability of the Codes SEPP), and the reasonableness of the impact as a consequence of the additional height of the applicant's dwelling. 38Mr Rowan's opinion that a dwelling compliant with the Codes SEPP, if it had been built on the site, could have a height of 8.5m and therefore would have a greater impact on the view. In his opinion, this demonstrates that the view impact of the proposal is reasonable for its context, setting and development potential of the site, and that adequate view sharing is provided for. 39In regards to the loss of view from the master bedroom, Mr Rowan considers that the view is oblique, distant, partly obscured by a palm, and unlikely to include the water of the Georges River. 40With respect to the impact on the view from the terrace off the children's bedroom, the planners applied the Planning Principle on view sharing and the impact on neighbours published in Tenacity Consulting v Warringah [2004] NSWLEC 140. The planners disagree on the nature of the view and therefore the level of impact. 41In Mr Devlin's analysis: views of the Captain Cook Bridge are locally iconic and significant and the loss of views to Georges River is substantial; the upstairs terrace is the most significant viewing location within No 6 from which to enjoy the views; the adjoining room is capable of being used as a living area; the increased height has resulted in the loss of 70-80% of the view of the bridge and water below; and, as additional height results from a non-compliance with the controls, the loss is unacceptable. Mr Devlin stated that while the RDG at cl. 3.11 describes a process for the assessment of view sharing, the council's practice is to extend the assessment in accordance with Tenacity. 42Mr Rowan's assessment is that: water views of Kogarah Bay and the district in general are retained from sitting and standing positions, and that a distant oblique view of the Georges Rover and the bridge is available; he considers that the Captain Cook Bridge is a landmark and not an iconic structure and that even as a landmark the effect is muted because of the elevated position of No 6; the rooms are bedrooms and the terrace is not related to a living space; and, given the potential of the site for a higher complying development, the actual impact on view loss is not significant as the majority of all available views are retained.

[10]

Applicant's submissions 43Mr Nash contends that the fact that the applicant's dwelling was not constructed in accordance with the approved plans must be set aside. The matter to be determined is whether, on the merits, the additional height is acceptable in terms of impact on the East Street streetscape and views from 6 East Street. 44In citing Zhang v Canterbury City Council [2001] NSWCA 167 and the consideration that the DCP, in this case RDG 2005, must be a focal point, Mr Nash relies on the introductory statements in RDG 2005 given in [18] of this judgment, in particular, the statement "the outcomes of the RDG do not focus on compliance with numerical outcomes..". He contends that the design solutions in the RDG are suggested ways of achieving certain performance criteria and are not ends in themselves. From the 'definitions' - the performance criteria in relation to a proposed development must be interpreted in the context of the related objective. 45Mr Nash maintains that cl. 3.11 in RDG clearly describes the process to be used when assessing the impact of a proposed development on the views of adjoining neighbours. This includes the importance of the view, standing views from within main living areas and from associated terraces/balconies, and the reasonableness of the proposal. This he says must also recognise the development potential of the site. 46Mr Nash cites Alphatex Australia v The Hills Shire Council (No 2) [2009] NSWLEC 1126 at [58]-[59] to support his argument that planning principles, such as the principle in Tenacity, are not binding and cannot override or displace the provisions of a local environmental plan or development control plan. However, in saying this, Mr Nash considers that an additional assessment using the Tenacity principle supports his position that the impact on view sharing is acceptable. 47In regards to the nature/importance of the views from No 6 East Street, he disputes Mr Devlin's use of the word 'iconic' to describe the Captain Cook Bridge. He cites the Macquarie Dictionary and the most applicable meaning of the word 'icon' as 'an artefact, practice etc., which is associated with a particular way of life so strongly that it comes to be seen as a symbol of it'. Mr Nash maintains that while it is a local landmark, it would be ludicrous to consider the Captain Cook Bridge in the same category as the Harbour Bridge. He notes that the RDG lists Tom Ugly's Bridge as iconic but not the Captain Cook Bridge. He considers the view from No 6 is best described as a district escarpment view with an oblique and distant view of the Captain Cook Bridge. Mr Nash also notes the limitations of the RP Data photograph taken from No 6 East Street; this is a telephoto view across the original dwelling and not a true representation of the entirety of the view available from that property. The majority of the panoramic views are retained, as is the northern section of the bridge. 48Mr Nash maintains that the upstairs rooms at 6 East Street are currently used as bedrooms and not living rooms. While the part of the current children's bedroom closest to the terrace is designated as a sitting room in approved plans for alterations and additions to 6 east Street, the principle living area remains on the ground floor. He contends that standing views of the Captain Cook Bridge are visible from the terrace. 49In regards to the development potential of the site he argues that a taller building could have been built under the Codes SEPP as could a dwelling with a pitched roof. He cites Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 at [81]-[82] to support his position that consideration of other planning instruments is relevant to the public interest. In his client's case, unlike Terrace Tower, the Codes SEPP applies to the site. 50While he maintains his position that the additional height of the applicant's dwelling does not unreasonably impact on views from 6 East Street, Mr Nash proposes a condition requiring the reduction in height of the parapet above bedroom 4 (that being the room on the north-eastern corner of the dwelling and thus the corner partly obstructing the view of the bridge) to 50mm above the as-built roof slab, a reduction of 300-350mm. 51In regards to the impact on the streetscape, Mr Nash adopts Mr Rowan's position. He stresses that consideration of a s 96 modification application is not an invitation to redetermine the original development application. As the issue of bulk has gone away, and the articulation, setback and so on comply with the RDG, only the additional height remains in contention. He considers that the additional height does not have the visual impact stated by the council. However, to strike a balance, he proposes a condition requiring the proposed 180 mm lowering of the alfresco element of the building to be increased to a level 50 mm above the as-built roof slab.

[11]

Respondent's submission 52Ms Puckeridge contends that the council undertook a thorough assessment of the original development application for the site. As originally proposed, the impact on streetscape and the impact on views from 6 East Street were deemed to be acceptable but only on the condition that the proposed building was to be constructed at a height no greater than that indicated on the approved plans. The fact that the as-built dwelling now exceeds the approved height means that the building now has an unacceptable impact on views from 6 East Street and is now visually intrusive in the streetscape. 53As a consequence, she maintains that the development does not meet the relevant objectives in the RDG, and the circumstances do not warrant a departure from the controls in the RDG. 54In regards to the streetscape character in section 2.1 of the RDG, Ms Puckeridge contends that achievement of the objective to ensure that the character of the streetscape is conserved requires compliance with the controls for maximum building height. While the applicant argues that control may allow a pitched roof height of 9m or up to 8.5 m under the Codes SEPP , Ms Puckeridge maintains that these heights are irrelevant in the circumstances as the dwelling is designed and constructed with a flat roof. In her view, relying on isolated elements of the General Housing Code within the Codes SEPP is inappropriate and the SEPP should be given no weight. 55Ms Puckeridge adopts Mr Devlin's opinion that the additional height of the dwelling in the context of its elevated corner location creates an unacceptable visual impact from East Street. While she accepts that the proposed reduction in the height of the parapet above the alfresco area will make some difference, she maintains that the impact remains unacceptable and beyond what could reasonably be expected under the controls. 56In regards to the impact on views, Ms Puckeridge contends that the increased height of the dwelling has removed a significant and valuable element of the view available from standing positions on the first floor terrace and master bedroom of No 6 East Street. 57Ms Puckeridge cites the Oxford Dictionary definition of 'icon' as 'object of particular admiration, esp. as a representative symbol of something' to argue that Mr Devlin's categorisation of the Captain Cook Bridge as locally iconic is legitimate. In regards to the use of the rooms on the first floor, while she accepts that the room leading from the terrace is currently used as a bedroom, it is of sufficient size to be put to use as a living room as proposed in the approved development for that dwelling. 58With respect to the reasonableness of the impact on views, Ms Puckeridge asserts that the loss results from non-compliance with the controls and therefore the impact is unreasonable. In further consideration of the acceptability and reasonableness of, or necessity for, the impact, she cites the planning principles in Super Studio v Waverley [2004] NSWLEC 91 at [5] and Pafburn v North Sydney Council [2005] NSWLEC 444 at [21] and [24]. 59It remains the council's position, that notwithstanding the applicant's offers to reduce the height of two portions of the parapet walls, the proposal should be refused as it does not promote the orderly development of land and it would authorise a dwelling that, by failing to achieve council's planning controls, has a significant adverse impact on the surrounding environment.

[13]

Streetscape 63The Streetscape Character objective in section 2.1 of the RDG is to 'ensure that the character of streetscapes are [sic] appropriately conserved through careful design consideration.' The General Controls objectives in s 3.1 consider the existing character but also the future character of the street and local area. 64With the benefit of the inspection of the site and its immediate locality, it is clear that the area is in transition. Older style dwellings are being replaced with more substantial dwellings. This is clearly acknowledged in the various internal reports to council concerning this development. I note that Mr Devlin agreed with Mr Nash that the dwellings to the north of the site are presently under-developed. 65I agree that the dwelling on the site is visually prominent given its corner siting and the elevation of the site relative to East Street. It's colour as well as the absence of vegetation in the street or on the site accentuate its prominence. However the building is well articulated and visually broken up with feature elements of different colours and textures. While these aspects are not in contention, they inevitably contribute to an observer's perception of the dominance or otherwise of a building. 66While I agree with the council that the height of the building makes the dwelling more visually prominent from East Street, I consider that the applicant's proposed conditions to reduce the height of the parapets above the alfresco element and bedroom 4 will reduce the impact to a more acceptable level. The reduction in height of the alfresco element to 50mm above the roof slab of that portion will reduce the visual bulk of the rear of the dwelling and improve the presentation of the building to East Street. 67The council tendered Without Prejudice Conditions of Consent that included an additional condition requiring the planting of six street trees within the footpath area of the road reserve along the East Street frontage. While no submissions were made regarding the conditions, Mr Nash made no specific objection to this requirement. Given my findings in [65] I consider it is appropriate to impose this condition as an additional means of mitigating the visual prominence of the dwelling and benefiting the East Street streetscape. 68With the imposition of these conditions, I do not consider the impact on the streetscape to be sufficiently adverse to warrant the refusal of the modification application on this basis.

[14]

Impact on views 69I agree with the parties that the additional height of the applicant's dwelling has obstructed a varying portion of the view of the Captain Cook Bridge, and the Georges River below it, from the first floor east-facing rooms of 6 East Street. The question to be answered is whether the view loss is unreasonable in the circumstances and should therefore warrant the refusal of the modification application. 70The planners agree that the views available from the first floor are panoramic, distant, district views that include water and parts of the bridge and that the views from the principal living areas of 6 East Street are unaffected (see [35]-[36]). 71The difference in opinion concerns the significance of the view of the Captain Cook Bridge and whether it is an 'iconic' view. Both advocates pressed various dictionary meanings to support their case. However, the RDG does not appear to identify the Captain Cook Bridge as an 'iconic' structure but rather as a landmark. Foreshore Locality statements in the RDG, including the eastern end of Townson Street, note the main landmarks as the Captain Cook Bridge and Tom Ugly's Bridge. However, no mention was made of the site or 6 East Street being within any designated foreshore area. If this were the case, it presumably may have added weight to the council's contentions. I also note the hierarchy of types of views in s 3.11 RDG and the Captain Cook Bridge is not identified in the 'iconic view' category. 72While I agree that the view from the first floor of 6 East Street of the Captain Cook Bridge (and the water below it) is an important and attractive element of the panoramic view available from that floor, I am not persuaded by the council's contention that the Captain Cook Bridge is an iconic structure or that views of it are therefore 'iconic views'. I also note that the views are distant and agree with the applicant that the RP Data photographs (exhibit 6) are not an accurate portrayal of the view from 6 East Street. However, nor do I consider the photographs taken by Mr Rowan (exhibit G) to be an accurate record. What could be seen at the time of the hearing was clear to all in attendance and most accurately recorded by the photographs in exhibit 9, although these focus on views to the south-east and not the full panorama. 73While the room off the terrace on the first floor is proposed to be a sitting room, the floor is currently used for bedrooms and will be principally used for the same purpose once the dwelling has been renovated. The assessment process in the RDG specifically refers to standing views from main living areas and associated terraces. As an adjunct to this process, Tenacity places a low priority on views from bedrooms. In this regard, I do not find the obstruction of the portion of the view of Captain Cook Bridge that may have been available from the master bedroom to be unreasonable given the nature of the room, the obliqueness of the angle of view, and the distance of the bridge from that viewing position. In itself, it does not warrant the refusal of the modification application. 74In regards to the view from the first floor terrace, it is possible to see the northern end of the Captain Cook Bridge and some of the water beneath it. While I note the applicant's submissions on the Codes SEPP in terms of the development potential of the site and the potentially more significant loss of a view from 6 East Street, I am not persuaded to give it any weight. While the SEPP may apply to the site, it does not apply to the modification application. 75In the circumstances, I am satisfied that the proposed reduction of the parapet above bedroom 4 of the applicant's dwelling, will enable more of the bridge and the river to be seen from what still remains a secondary living area.

[15]

Conclusions and orders 76Having considered the evidence and the submissions, and, as required the matters in s 79C of the Act, I am satisfied that while the modification application to increase the height of the applicant's dwelling does not comply with the numerical controls in the RDG DCP, I have determined that the modifications sought (subject to the conditions requiring the reduction of parapet heights above bedroom 4 and the alfresco area) have minimal environmental impact on the immediate locality and can be approved. 77Therefore the Orders of the Court are: (1)The appeal is upheld. (2)Modification application 347/2010/4 to modify consent 347/2010, Lot 110 DP 11660004, 59 Towson Street, Blakehurst is approved subject to the amended conditions in Annexure 1. (3)The exhibits except E and 1 are returned.

Judy Fakes Commissioner of the Court ANNEXURE A (1) Approved Plans of Consent The development must be implemented in accordance with the approved plans, specifications and details listed below and any supporting information submitted with the Development Application except as amended by any conditions attached to the Development Consent: (i) Architectural Plans - prepared by mCubed Design and marked Drawing Nos ¼ and 2/4 dated s96 18/6/2013 and 3/4 dated s96 21/2/2013 except as modified by the following conditions. (ii) The parapet to the roof above Bedroom 4 only (at first floor level) shall be reduced in height to be no greater than 50 mm above the as-built roof slab and shall be completed prior to the issuing of the Occupation Certificate. (iii) The parapet to the roof above the alfresco area only (at the rear ground floor level) shall be reduced in height to be no greater than 50mm above the as-built roof slab and shall be completed prior to the issuing of the Occupation Certificate. (37a) Street tree planting Six (6) street trees shall be planted within the footpath area of the road reserve along the East Street frontage in accordance with the provisions of Council's Street Tree management Strategy and Masterplan. (a) All costs associated with the planting of trees shall be met by the applicant/owner and paid to council. (b) Kogarah City Council shall undertake all works associated with the planting of the trees. 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: 15 July 2013

Bachir v Kogarah City Council

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Judgment (15 paragraphs)

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Cases Cited (6)