Brodie v Baulkham Hills Shire Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005

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

APPLICANT Ms M. Carpenter, barrister instructed by Mr P. Dawson of Peter Dawson and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr M Seymour, barrister instructed by Mr C Winn of Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10549 of 2007 Stephen and Janine Brodie v Baulkham 10550 of 2007 Hills Shire Council

JUDGMENT 1 These are two appeals against the refusal by Baulkham Hills Shire Council (the council) of two development applications. Appeal No. 10550 of 2007 relates to a development application (DA 1288/2007/MS) to demolish the existing house and construct a single storey dwelling at 38A Jones Road Kenthurst (the site). Appeal No. 10549 of 2007 is for a development application for a swimming pool and water tank ancillary to the proposed dwelling on the same site (DA 1550/2007/MA).

2 The main issue in dispute between the parties is the location of the proposed dwelling. The parties agreed that the location of the swimming pool is dependent upon the location of the dwelling and consequently if Appeal No. 10050 of 2007 is upheld then Appeal No. 10549 of 2007 should also be upheld. Conversely, if Appeal No. 10050 of 2007 is dismissed then Appeal No. 10549 of 2007 should also be dismissed.

The site and its context 3 The site is located on the southern side of Jones Road and has a frontage of 30.48 metres and a total site area of 2.37 hectares. It is currently developed with a single storey dwelling set back about 15 metres from Jones Road. 4 The adjoining property to the west (38 Jones Road) also has about a 30 metre frontage and a site area of 2,124 square metres. It is developed with a recent two storey house set back about 14 metres from Jones Road to its garage. 5 The adjoining property to the east (40 Jones Road) has a wider frontage. A new two storey dwelling is currently under construction which is set back about 24 metres from Jones Road. I understand a s 96 application has been lodged to set the dwelling back further. No details of this application were provided at the hearing.

6 The surrounding development is predominantly rural residential and is characterised by one and two storey dwellings on large allotments. There is no consistent front setback to Jones Road. Allotments generally have wider frontages to Jones Road than 38 and 38A (in the order of 40 to 60 metres) and the houses generally have generous side setbacks. The rear of the properties is of an open character with open side fences. The rear building line steps; the houses generally adjoin rear open space on one side and a dwelling on the other side. Some ancillary structures are set towards the rear of the lots, which are heavily vegetated with trees.

Planning framework 7 The site is zoned Rural 1(C) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). The objectives of the zone relevantly provide: (d) to ensure that development is designed and carried out having regard to adjoining land uses and the natural environment, and (e) to ensure that development is designed and carried out having regard to rural and heritage character of the surrounding area. 8 Baulkham Hills Development Control Plan No. 1 (DCP 1) applies to the site. The function of the Rural 1(C) zone is stated as being to: Accommodate rural-residential development compatible with the environmental characteristics of certain land in the Shire…. These provisions seek to protect the rural character of the area while providing for a rural-residential lifestyle. 9 Clause 3.3 of DCP1 requires a minimum allotment size of 2 hectares and a minimum frontage of 60 metres. Clause 3.4 of DCP1 permits a dwelling to be erected on any allotment that existed on the appointed date, being 13 May 1977. 38 and 38A Jones Road were in existence on the appointed date. There are no other relevant controls in DCP1 and it provides little guidance in the assessment of the application.

The issues 10 The Statement of Facts and Contentions contain three issues which can be summarised as being whether the siting of the dwelling has an unacceptable impact on the amenity of adjoining properties particularly in relation to its setbacks, loss of views and privacy impacts.

The evidence 11 The Court heard evidence from the adjoining owners at 38 Jones Road, Mr and Mrs Murdocca. Their main concern was the impact on the outlook from their property. Currently they enjoy a view from their kitchen/dining/living areas and elevated terrace over the rear gardens of neighbouring properties towards the trees and the Blue Mountains. The outlook to the west will be replaced by a dwelling about 1.5 metres from their boundary with windows to the living and dining areas near their outdoor terrace. The Murdoccas have now sold their property but maintained their concerns that the proposal was inappropriate in a rural residential environment.

12 A petition in support of the application from 25 residents was tendered. 13 Mr and Mrs Brodie explained the rationale for the proposed location of the house. This is summarised in the Statement of Facts and Contentions in Reply as:

(a) a desire to maximise separation of the primary living areas from those of the adjoining dwellings in order to bring about improved visual and acoustic privacy to the main internal living areas and external terrace/ swimming pool area; (b) to continue the theme of varied setbacks, which form an important part of the locality's rural character and setting; (c) a desire to achieve improved morning and afternoon sun into the dwelling by siting the new dwelling beyond the influence of adjoining 2 storey dwellings; (d) a desire to reside in the existing dwelling while constructing a new dwelling. 14 The Court heard expert planning evidence from Mr D Haskew, for the applicant, and Mr C Young, for the council. The difference in opinion between the planners can be summarised as being Mr Young considered the proposal did not meet the objectives for the 1(C) Rural Zone in LEP 2005 as it was not designed having regard to the adjoining land uses or the rural character of the area. He considered the proposal adversely impacted on the adjoining properties in terms of view loss, privacy, and bulk and scale and that these impacts could be avoided by an alternate location of the dwelling. He considered the impacts were exacerbated because the frontages of 38 and 38A Jones Road were half the required width, which resulted in the dwellings being in closer proximity than other dwellings, in the area. This resulted in less setback, separation between dwellings and opportunities for landscaping which impacted on the open rural character of the area. He acknowledged that a fence with landscaping could ameliorate privacy impacts, however he considered this to be inconsistent with the treatment of other dwellings.

15 In relation to view loss, Mr Young considered the views to the Blue Mountains to be iconic and that the extent of view loss did not achieve the principles in Tenacity Consulting v Warringah [2004] NSWLEC 140, particularly as a more skilful design, which placed the dwelling in a different location, could minimise view loss while still providing reasonable development on the site. 16 Mr Haskew examined alternate locations on the site to locate the house. He concluded that the proposed location provided significant amenity benefits for the occupants in relation to aural privacy and solar access by staggering the location of the dwelling with that of adjoining dwellings. He stated that this was important as the adjoining properties on either side were two storeys and that the subject house, being only single storey would be overwhelmed by the adjoining houses. He also considered that the increased setback was a benefit to the streetscape and better maintained the rural character than having three houses in close proximity in the same alignment. In relation to views, Mr Haskew did not consider the views to the Blue Mountains to be iconic as they were not water views nor did he consider that the impact on views to be substantial, as considerable views to the rear and to the east of the property were maintained. Findings 17 I accept that there is a streetscape benefit to the dwellings not being in the same alignment thereby providing greater separation between 38A and the adjoining properties and maintaining the open rural character of the street. However, I do not consider that a setback of some 36.5 metres is necessary to achieve this benefit, particularly as this pushes the built form into the rear open space area. It changes the current relationship of building to building and open space to open space. It places a house which, although only single storey, is substantial in size with a roof form that extends to a ridge height of about 7.2 metres in close proximity to its adjoining properties in an area that is currently open space.

18 The house extends some 20 metres beyond the rear alignment of 38 Jones Road at 1.5 metres off the boundary. The living and dining room windows relate directly to the outdoor terrace and rear garden area and would need to be screened by a fence or planting to achieve acceptable privacy. The proposal extends beyond other houses in the street and does not maintain the alignment of houses to rear boundaries in the area.

19 The siting and bulk of the proposal will impact upon the outlook currently enjoyed by 38 Jones Road. While trees could screen the bulk of the building this is not warranted in this case as there are alternate locations which would result in a lesser impact. The proposal will impact on the views from 38 Jones Road. While this property enjoys other views to the south and east, the view loss is considerable and includes limited views of the Blue Mountains. In a situation where constraints on the site placed limitations on the location of the dwelling this view loss may be acceptable but in this situation, where alternate locations are possible, appropriate view sharing is not achieved. 20 Adjoining 40 Jones Street the proposal extends some 30 metres but is set back about 3 metres. The impact from No. 40 Jones Road was not assessed as this property was not visited and the owner has supported the proposal. 21 During the hearing the applicant was offered the opportunity to examine options to reduce the impact on adjoining properties by moving the dwelling closer to Jones Road, however no acceptable alternate proposal was proffered. While I accept that the proposed location of the dwelling does not need to be in the same location as the existing house and that some staggering of the proposal and extension of built form into the rear open space area would be acceptable, I do not accept that the extent of built form and its setbacks meet the objectives of the rural zone. The proposal is not designed having adequate regard to adjoining development and the rural character of the area.

22 I also do not accept that the rationale provided by the applicant for locating the building in its proposed location is sufficient to warrant the impacts of the development. On this basis the appeals must fail.

Orders 23 The Orders of the Court in relation to Appeal No. 10550 of 2007 are: 1. The appeal is dismissed. 2. The development application (DA 1288/2007/MS) for a single storey dwelling at 38A Jones Road, Kenthurst is refused. 3. The exhibits except Exhibit 1 may be returned.

1. The appeal is dismissed. 2. The development application (DA 1550/2007/MA) for a swimming pool and water tank at 38A Jones Road, Kenthurst is refused. 3. The exhibits except Exhibit 2 may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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