Ball I & K v Lake Macquarie City Council

APPLICANT Mr P Hines, solicitor of Paul Hines Solicitors

LEGAL REPRESENTATIVES: RESPONDENT Mr P Rees, solicitor of Lake Macquarie City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11069 of 2004 Ian Ball and Karen Ball v Lake Macquarie City Council

JUDGMENT 1 This was a class 1 appeal No. 11069 of 2004 between I & K Ball v Lake Macquarie City Council in regard to the refusal of a s 96 application to modify a development consent issued to permit the erection of a new two storey dwelling at No. 57 Dilkera Avenue, Valentine. The land was absolute water frontage to Lake Macquarie in a location called Croudace Bay. The house is almost at the completely constructed stage.

2 During construction neighbours noticed the house seemed to be forward of the position approved by council in its proximity to the waterfront. It seems the original application, had sought the front of the building 8.5 m from high water mark. The council had adopted a 10 m foreshore building line under the Lake Macquarie Local Environmental Plan 1984. The applicant's consultant had amended the plans not by changing the house position on the plan, but by simply changing the text of the set back dimension from 8.5 m to 10 m. Council had approved that plan.

3 The Court was told the owner, the builder, and the engineer never got a copy of that plan, and the building proceeded on sets of the original plans with the 8.5 m dimension.

4 When the council discovered the error, work on the balcony and the roof above it was cut back, so that the balcony became about 1.5 m wide instead of 3 m wide. Subsequent surveys showed the 1.5 m wide balcony was built so it did not intrude on the foreshore building line, although the roof overhung the foreshore building line by about 450 mm.

5 The applicant sought under the s 96 application to extend the balcony and roof including corner columns and footings to make it approximately 3 m wide and intrude on the foreshore building line.

6 At the on site hearing the council and the court became aware of a wing wall on the west side of the north elevation that projected about 1.5 m into the foreshore building line, and an elevated patio at the same level as the ground floor of the house that projected about 7.5 m into the foreshore building line. The application did not include those elements, and the applicant confirmed they were not to be the subject of the appeal.

7 A State Environmental Planning Policy No. 1 objection was lodged seeking an exception to the statutory setback gazetted on 18 July 1988. The issues were privacy, shading, views, the establishment of a precedent, and adverse effects upon amenity of neighbours and the valuation of property.

8 There was a court appointed expert town planner, Mr G Warnes who gave evidence. There was a town planner's report from the applicant's town planner, Mr R Meagher, and a council officer's report that considered the s 96 application was all in evidence.

9 Mr and Mrs Bradbury, next door neighbours at No. 55 Dilkera Avenue gave evidence. Mrs Walker, next door neighbour at No. 59 Dilkera Avenue gave evidence. Also attending was the applicant Mr Ian Ball and Mr Damien Finn, and Mr Bob Moffatt. Mr P Hines represented the applicant, and Mr P Rees represented the respondent assisted by Mr C Dwyer.

10 The allotment was 12 m wide, which is quite narrow, but its neighbours in the vicinity were all about the same width. No. 55 was set back 12.5 m from the foreshore building line, and No. 59 was set back about 11 m from the foreshore building line. So the subject house as built was therefore already closer to the water than the neighbouring houses.

11 No. 59 did have a boatshed within the foreshore building line, presumably pre-existing the gazettal. The roof of the boatshed was converted to a deck with tables and chairs. The roof was at about the half level between the ground and the first floor of the house so that from the first floor level of the proposal, where the living room was located, occupants could see over this boatshed and along the foreshore. This view was from the subject site to the west but there was also a view towards the east. No. 55 currently enjoyed this view from the first floor main living areas and balcony along with the subject property. The foreshore of the bay curved around and facilitated these views along the shore line.

12 No. 53 had a similar boatshed to the one on No. 59, again with the roof converted to a deck at about the half level between the ground and the first floors, and so from the first floor of the living rooms at No. 57 and No. 55 the view to the east along the foreshore was available. Obviously all had full views directly out from their houses over the body of the lake to the north.

13 The respondent pointed out Mr Warnes' report on p 13 was in error and that Development Control Plan No. 3 had no application to this appeal as it was made under the previous Lake Macquarie Local Environmental Plan 1984, and had been superseded by the gazettal of the statutory foreshore building line and the new statutory instrument applicable in this case being the Lake Macquarie Local Environmental Plan 2004. The 10 m foreshore building line was a standard.

14 Mr Warnes agreed with these submissions. Nevertheless he still supported the State Environmental Planning Policy No. 1 objection to allow the intrusion on the foreshore building line due to, in his opinion, the minimal impacts on the neighbours, and minimal nature of the intrusion being 1.5 m, given the various other structures within the foreshore building line on other properties. He did however recommend that that privacy screen be erected on the east side of the balcony for the protection of No. 55.

15 Mr Bradbury lived at No. 55. He said apart from objecting to the bulk of the proposed extension, its structure and any people on it, and now the privacy screens, would obstruct views along the foreshore that were very attractive. He said he was not concerned about privacy on his lake front yard, everybody looked down into everybody else's front yards along the waterfront, there was mutual overlooking. But the proposed extension being at the same level as his living room, if there were no privacy screens, it would enable persons at No. 57 to look back directly into his first floor kitchen and living room windows and onto the deck, which had been quite private previous to the construction of the dwelling.

16 With the existing 1.5 m wide deck on No. 57, there was already an ability to look across from one deck to the other because it was just in front of the balcony on Mr Bradbury's house. But it was an oblique view to No. 55's living room windows, and anybody who might carry out that observation would have to stand in the corner of the existing deck as built on No. 57 and be very obvious.

17 Whilst the existing situation was not wholly satisfactory it was better than an extension of the deck of No. 57, Mr Bradbury said. He added that the views along the foreshore were important.

18 He observed that when a mistake in the position of the house was discovered it was still only at framing stage and the 1.5 m wide balcony could have been enlarged easily by widening it back into the living room. This was not done.

19 He also indicated that privacy from the adjacent boatshed roof decks was not a concern because they were all at the half level below the living rooms on the first floor, and the height difference and balustrades on the living room balconies provided acceptable privacy.

20 Mr Warnes had said that principles on view lines established by the Court did not support the preservation of views across other persons' properties.

21 Mrs Walker said she had been concerned about the position of the house when she saw it being built, but assumed council had approved it. Due to curved windows of her house being oriented away from the east and looking along the foreshore to the west and out over the lake she did not think the change would affect her greatly. The proposed balcony was on the opposite side to her house, but she felt the 10 m set back was fair and people should have to comply with it.

22 The Court is concerned that the State Environmental Planning Policy No. 1 objection needs to be assessed against the objectives of the Local Environmental Plan, the zoning of the land, and the foreshore building line standard. Lake Macquarie Local Environmental Plan 2004 states under zoning for the 2(1) Residential Zone, which applies to the subject property, the following relevant objectives: (a) Permit development of neighbourhoods of low density housing;

(c) Ensure that housing development respects the character of surrounding development and is of good quality design.

23 The proposal is permissible in the zone. The objective of the Local Environmental Plan 2004 as stated in cl 3 is to achieve development of land that is in accordance with the principles of ecologically sustainable development by: (a) Promoting balanced development of that land; and

(b) Implementing the Lifestyle 2020 Strategy adopted by council on 27 March 2000. 24 Cl 16 of the Lake Macquarie Local Environmental Plan 2004 also specifies that: Consent must not be granted for development unless the consent or authority (a) Has had regard to vision values and aims of the Lifestyle 2020 Strategy; and

(b) Is satisfied that such of the development as is proposed to be carried out within a zone is consistent with the relative objectives for that zone.

25 The relevant aims of the Lifestyle 2020 Strategy are: (1) Guide the development of urban communities that are compact, distinct and diverse, and include a range of housing types and activities; and

(2) Develop an attractive urban setting for the city which reflects its physical and natural environment and visual character; and

(3) Manage the city's natural environment so its ecological functions and biological diversity are conserved and enhanced, and can contribute to the city's overall wellbeing.

26 Cl 21 of the Local Environmental Plan requires the consent of authority in determining a written objection: (1) Pursuant to State Environmental Planning Policy No. 1 to consider the underlying objectives of the development standard and the following relevant issues: (a) Neighbourhood and local context; (b) Topography; (c) Solar orientation; (d) Neighbourhood amenity and character; (e) Privacy; (f) Overshadowing; (g) Security, safety and access.

27 The objectives of cl 22 for the foreshore building line are for: (a) Preservation and enhancement of the natural features and vegetation near where land meets the designated high water mark; and (b) Restoration of the land below any foreshore building lines so far as practical to a natural state with a minimum intrusion of manmade structures; and (c) Removal of structures and works below any foreshore building line particularly on redevelopment of land other than those accepted by cl 23: and (d) Conservation and enhancement of waterfront structures of heritage value; and (e) Avoidance of adverse ecological effects on the waterways; and (f) Enhancement of visual amenity of Lake Macquarie." 28 Cl 23(1) in part states that: Foreshore development between a foreshore building line and high water mark may only be carried out with development consent.

29 The Court was concerned no survey of the house as built and its juxtaposition to the foreshore building line had been done. This was filed after the hearing with some written submissions from both parties.

30 Mr Warnes had seen the survey too and advised the Court by fax on 21 December 2004 that his report was unchanged since the survey showed the 1.5 m wide existing balcony was just over the 10 m from the foreshore building line, and therefore did not intrude upon it. The eaves of the roof above the balcony did intrude, but Mr Warnes did not feel that this was a matter for concern.

31 In coming to its conclusion the Court had regard to the objectives of the foreshore building line, especially objectives (a), (b) and (f) referred to above. In considering the State Environmental Planning Policy No. 1 objection there was particular attention to the question of privacy from neighbours, and objective (c) of Zone 2(1) Residential.

32 It seems to the Court that the proposal fails on these matters, and is not a reasonable or well founded objection that seeks to justify a mistake in siting a building when that mistake intrudes into the foreshore setback and creates impacts upon its neighbours. Part of the impact is to do with the visual bulk of the building projecting in front of its neighbours, especially if privacy screens must to added to overcome impacts that would not be there if the building complied with the foreshore building line. 33 Another part of the impact is upon views. The principle on view sharing was based on the assumption that retaining views across other person's land is difficult where that development complies with the statutes. In this case the proposal does not comply with the statutory set back and creates a view loss. The principle therefore has only a limited application in this case and that is to demonstrate it should not be approved.

34 In other water frontages the principle may have greater application where people do not have the availability of the view along the shore-line. In this site however the curve of the bay and mutual overlooking that occurs across everyone's front yards enables residents on the first floors in particular, where many have their living rooms, to enjoy the view along the curve of the foreshore. That local character of the area is one that I think the Court's principle has not taken into account and makes this case distinguishable. If the house at No. 57 stays behind the foreshore building line then the potential impacts are largely resolved and these proceedings need not have arisen.

35 Therefore the orders of the Court are: 1. The appeal is dismissed.

2. The exhibits are returned to the parties except Exhibits 1, 2, 3, 6 and 8 and Exhibit A.

K G Hoffman Commissioner of the Court ljr

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