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[2007] NSWLEC 801
Land and Environment Court (NSW)
2007-10-16
Original judgment source is linked above.
CITATION : Cant v Lane Cove Council [2007] NSWLEC 801 This decision has been amended. Please see the end of the judgment for a list of the amendments.
APPLICANT David & Margaret Cant PARTIES : RESPONDENT Lane Cove Council
KEY ISSUES: Development Application :- Character of locality, sympathy and harmony with adjoining development, residential amenity, streetscape, public interest and safety, solar access.
Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Lane Cove Local Environmental Plan 1987 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 State Environmental Planning Policy No55
APPLICANT Ms S Duggan, barrister Instructed by Macree & Co solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor of Pike Pike & Fenwick
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10623 of 2007 Cant, David & Margaret Vs Lane Cove Council
1 This is a Class 1 Appeal No. 10623 of 2007 between David & Margaret Cant Vs Lane Cove Council in regard to the refusal of a proposal for a new dwelling on a rear lot of No.7 Holden St, Northwood. The rear lot is currently used as the back yard of the above property, but it has its own address as No.7 Kelly's Esplanade. The proposal involves the part-demolition of the existing house, but that has been approved by council already as part of renovations to No.7 Holden St.
2 This appeal was lodged against Council's deemed refusal of the application. 3 Site location - the subject lot is identified as Lot 55 DP 58263 - and forms part of the joint holding with 7 Holden Street (Lot 54). The subject lot is known as 7 Kelly's Esplanade, Northwood. It is very small with an overall site area of 227.7 sq m. The lot was created in 1906 along with others at Kelly's Esplanade. Many nearby houses occupy 2 or 3 of these small lots.
The site is located on the northern side of Kelly's Esplanade, and is a trapezoidal shape that is like a rectangle with the south end foreshortened by a long splay boundary to the esplanade. At the southern tip of the splay the south-eastern corner of the site has a "point frontage" to James Street, an unmade road reserve that rises very steeply uphill from its intersection with the esplanade.
The north boundary adjoining Lot 54 is 12.19m and the two parallel sides on the east and the west are 24.33m and 12.88m respectively. The splay boundary to the esplanade is 16.79m.
Within the north and north-eastern areas of the site adjacent to the house on No.7 Holden St, the land is relatively flat. However from the central areas of the site to the west and south-western boundaries the land commences to fall some 2-3 metres. A further significant fall of approximately 5-7 metres occurs from the western boundary that fronts the road reserve, down to the made section of Kelly's Esplanade below.
The site is currently vacant. The site comprises lawn/grass/rock shelf areas, path and gardens. There is a relatively level access along the upper rock shelf at the "point frontage" with James St. The junction of the James and Kelly's reservation is relatively level and is part of this rock shelf formation, but at a level about 7m above the constructed road on the esplanade.
4 Adjoining properties and the locality description - From the "point frontage" with the subject lot, James St rises uphill, unmade for about 100m traversing rock ledges. There are public stairs and a public path for pedestrian access up and down the hill, and at the "paper intersection" with the esplanade there is another rock shelf. The shelf is the same one that runs north-west through the subject lot.
On the opposite side of James St the rock shelf runs south-east, but outside the boundary of No.9 Kelly's Esplanade such that the public pedestrian path continues along the front of that house and connects via a short flight of steps to the cul-de-sac at the end of the esplanade.
No.9 has its garage directly off the cul-de-sac, but the house sits above on another rockshelf so there is no direct pedestrian access. No.9 uses the public pedestrian path on the esplanade to get to its pedestrian front gate.
On the west side of the esplanade all the houses step down the hill to the riverfront with drive entries off the road to the tops of the lots. Due to the steep terrain, some of the houses have short "bridges" to their garages. The houses appear 1-storey to the road, but from the river they are 2- or 3-storey.
There are houses of varying styles nearby, those uphill of the site appear to be circa 1920's and later, most with additions and alterations, a few are newer houses of perhaps 1980's-90's. Those along the esplanade appear to be post-WW2 of various decades. The surrounding sites with access to other streets are comprised only of residential development. Due to the steep topography many have good views of the river/harbour, and some houses have limited views.
The uphill neighbour of the proposal is No.5A Holden St also known as No.5 James St. It has an access drive to Holden St, as there is only pedestrian access via James.
Alongside the eastern uphill boundary of the site is an elevated swim pool in the yard of No.5A. The house on No. 5A has some views across James St to the water, but the most expansive views are from the living/dining rooms and deck across the pool and the subject lot. 5 The proposal - The proposal is for the construction of a 2-storey dwelling house with a pitched roof along with an attached tandem carport with a flat roof. The house is at the rear or north end of the site, the carport is in the front or southern portion of the site hard against the eastern boundary with No.5A. Access to the dwelling house is from the carport area to the entry on the ground floor. The two storeys comprise of living & dining, study, laundry, WC and kitchen on the first floor and entry, 2 bedrooms and bath rooms on the ground floor.
A terrace is proposed on the ground level outside the entry and bedrooms; it would be on an existing rock shelf. The shelf extends 2m or so west just outside the house; but there is enough space for a terrace 2.5-3.0m wide. A balcony directly above the ground floor terrace is proposed outside the living areas. It is about the same size as the terrace being about 2m x 6m. They both face south-west towards a view over the Lane Cove River.
Vehicular access is proposed via a driveway along the elevated portion of Kelly's Esplanade road reserve starting from the existing cul-de-sac, along the frontage of No.9 Kelly's, across the width of James St, using it to provide a turning bay, and thence into the subject site at the "point frontage" with James St. The tandem carport is alongside the elevated swim pool of No.5A James, and the carport roof is below the balustrade level around the pool. The Proposed house is adjacent a small grassed yard at the north end of the pool between it and No.5A's garage. Between the garage and No.5A's house is a covered BBQ and outdoor dining setting.
Architect - David Cant Plan Numbers: o 0701/DA1 Plans o 0701 /DA2 Site and Roof Plan. o 0701 /DA3 Elevations & Sections. o 0701 /DA5 Shadow Diagrams. o 0701/6A Driveway Profile. o 0701 /DA7 Stormwater. o 473.01 Landscape Plan o 473.02 Landscape Plan
The plans before the Court are modified. The original design had more excavation to preserve views from the small grassed yard and the family room windows of No.5A's house that look over it and out to limited views of the river. The council had objected to the amount of excavation so the amended plans had excavated to the 1m maximum the Council preferred and it has resulted in the proposed house being raised.
The plans before the Court are 0701/DA1-A, /DA2-A, /DA3-A, /DA5-A, /6A, /DA7-A, /DA08-A, /DA09-A by David Cant Architect, a survey plan no.02.757 of Lots 54 and 55 and Kellys Esplanade along to the cul-de-sac, plus relevant levels of Nos. 5A Holden and 9 Kelly's. There are landscape plans 473.01 and 02 both issue A by Tramonte Jensen. 6 Statutory controls - Lane Cove Local Environmental Plan 1987 (the "LCLEP"). Relevant provisions include: Cl 2(2) - (2) The particular aims of this plan are: (a) in relation to housing: (i) to maintain and where appropriate improve the existing amenity and environmental character of residential zones, (ii) to provide additional medium density housing in limited quantities within certain residential zones to assist in the maintenance of the present population of the Municipality, and (iii) to permit new residential development only where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development, Cl 9 - Zone objectives and development control table 9 (3) Except as otherwise provided by this plan, The Council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
The site is zoned 2(a2) Residential. The objective of this zone is: " The objective is to retain the existing residential amenity of detached single family dwelling areas. New dwelling-houses or extensions of existing dwelling-houses will be permitted only where they would not be highly visible when viewed from the Lane Cove River or Parramatta River." Code and Development Application checklist for Dwelling Houses, Fences Private Swimming Pools and Outbuildings - August 2002. Draft Lane Cove Acid Sulphate Soils Map. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (the SREP) and Sydney Harbour Foreshores and Waterways Area Development Control Plan for the SREP (the DCP). State Environmental Planning policy No. 55 - Remediation of Land. The roadway is unzoned and the provisions of cl 14 of the Environmental and Planning Model Provisions 1980 applies. 7 The Contentions
Particulars LCLEP - Cl 9(4) - (Development to be consistent with zone objectives). Zoning table - Zone 2(a2) objectives (to retain the existing residential amenity of detached single family dwelling areas). Cl 2(i) (a) and (b) (general objectives) - (to preserve and where appropriate improve the existing character and environmental quality of the land and to ensure that any development takes account of the principles of ESD and energy efficiency). Cl 2(2) (a) (i) - (to maintain and where appropriate improve the existing and environmental character of residential zones).
9 The main concerns of the objectors who are not immediate neighbours were: * the proposed access via Kelly's Esplanade as it would convert a walkway into a driveway leading to Safety, Noise and Traffic problems. * To enter the access ramp a driver would have to execute a 300º turn in the cul-de-sac, and this would normally require multiple manoeuvres. The same on exit. People park in the cul-de-sac especially in summer when the foreshore reserve is crowded, there would be no room for the manoeuvres. * The turnaround at the top of the access would take out street trees, intersect the existing pedestrian path, and could only provide for a small sized car to turn. Bigger vehicles would have to reverse up or down the ramp. * The access would be a legal very narrow public street and would conflict with residents who use the existing path regularly to go up to bus routes and school and for exercise, and to access the foreshore reserve from areas uphill. * The general public use the path regularly also as it is part of an advertised walking route around Sydney Harbour, and is an access route to part of the Great North Walk. * The elevated intersection of James and Kelly's reservations is a vantage point and rest point overlooking the river (seating exists where the car turnaround is proposed). * Using the access for heavy construction trucks and later furniture pan-technikons is impractical. It may cause vibrations and rock falls to street as has occurred in the past. * The small block size not being consistent with the character of the area. 10 The particular concerns of neighbours was: Mr Smith is on the uphill east side of the site. He is concerned at the loss of the view from his family room windows to Woodford Bay. As mentioned, this is obtained by looking across his small grassed area between his pool and his garage and across the subject lot. The proposed house will block the view.
Mr Nash pointed out that the views from Mr Smith's pool deck and living room windows are not affected. Also the outdoor eating area between Mr Smith's garage and his house only gets a small part of its view across his grassed yard; the main view is across his pool and Kelly's Esplanade reservation, and that will be undisturbed. The view from his family room is across the width of the existing lot at No.7 Kelly's and any structure on it must take out that view. It is not reasonable to expect to retain it. There is 12 m separation between the proposed house and Mr Smith's family room and that is ample for sun and ventilation. From Mr Smith's the proposed house would be only 1-storey due to the hill slope, it could not have unacceptable bulk or height.
Mr Smith said there would be glare from the proposed carport roof in the foreground of the views from the pool deck and living room. Also he said he did not use the pool deck much due to sun exposure.
Also he pointed out his house is across two small lots. If this is approved it may be worth his considering a similar development using the proposed vehicle access because it would be a public road. Mr & Mrs Sperry were most anxious about the proposed access. It would mean the pleasant public path from the cul-de-sac to their front gate would become a concrete drive instead of the landscaped walk they had cultivated. Being the only route from the street and their garage to their house, they were concerned about safety, as the access would be so narrow a car and a pedestrian would not have safe clearances to pass.
An existing street tree and other native flowering hedge vegetation would have to be removed. There would have to be a vehicle safety fence on the west side of the access due to the drop on the downhill side; it would be ugly. Where would the garbage truck pick up from? It could not negotiate the ramp, so the wheeley bins would end up in front of Sperry's and probably block their garage entry.
The Sperry's were also concerned that the ramp came right beside their entire front boundary, and their garage is built on the boundary. There would be no visibility or warning when they reversed or drove out of their garage. A car driver coming down the ramp would not see them until too late. The applicant proposed a convex mirror on a post to give some visibility. This created more objections as it meant, instead of the pleasantly landscaped public footpath in front of their house with a flowering banksia tree adjacent their garage and the 4 steps up to the path, there would be a 3 m wide concrete drive along their entire front boundary and an ugly Armco, or similar safety fence also the length of their frontage, and the tree goes with an ugly post and convex mirror replacing it. It is unacceptable and selfish, they said, for the applicant to cause such adverse affects on their house and its setting and their safety and amenity. Mr Garnett said over his period of many years residency, at No.1 on the esplanade, he had seen service and construction trucks using the last section of the esplanade from the foreshore reserve up to the cul-de-sac. Mostly they cannot turn around and have to reverse all the way down the hill from the end back to the foreshore outside his place where they can turn. Mr Markham is across the cul-de-sac from the Sperry's. He said: * the drawings are incomplete. They nominate a fence on the side of the access but not what it is. A heavy Armco vehicle structure would be needed that occupies more space than shown and would be ugly. * The concrete ramp would have to be cantilevered in part out from the rock shelf to get the width, the drawings don't show that. * The width is only 3 m plus the kerb, it is really only a single lot driveway. * At the bottom of the ramp it has to merge with the Sperry's garage drive crossing. The 1:6 crossfall shown is too steep for cars and definitely for trucks to negotiate. There would be danger of tipping over. Changing the crossfall would prevent access to Sperry's garage. * The crossfall will be a potential ankle-twist for pedestrians. * The sewer main and the stormwater main are next to the rock shelf. The drawings do not show how the proposal can connect to them. * The increased run-off may be more than the capacity of the existing stormwater sump outside No.6 of the esplanade. * Already downhill sheet flow in storms causes problems/flooding of esplanade properties. If the drainage does not work, or blocks, the ramp will collect a large volume of stormwater and it will cascade into the cul-de-sac and into the houses on the downhill side. Mr Markham has had that previously, this must make it worse. * If the proposal is allowed, Mr Markham said it needs a re-design of No.7 Holden St to get vehicle access through it to the subject site. * Lot 55 is the only back yard space for No.7 Holden and the proposal deletes it. The Holden St house will have only its upper deck for outside recreation. The proposed house and carport occupies the only level space on lot 55, the rest of it is a series of rock shelves, so the new house will have only the terrace outside its front door and the balcony at the upper floor for outdoor recreation. This is like medium density housing and Zone 2(a2) is for detached houses only, flats and other medium and high density residential are prohibited. 11 Ms Laidlaw noted the minimum area for new subdivision is 550 sq m, so the subject lot is half the size expected for the future in Northwood. The lot itself is a difficult shape with difficult topography to design any house and have a yard space. The actual level area is only about 160 sq m and constitutes the effective lot size. This is demonstrated by the house and carport occupying the only flat land on the lot, and the rest being rock shelves dropping about 3 m in a distance of 5 m. The front setback requirement to Kelly's Esplanade is 7.5 m and the balcony to the living area overhangs it by 2 m. The front wall of the house is on the 7.5 m requirement, but the carport is fully within the front setback. 12 In difficult terrain it is not unusual for a council to allow a carport in a front setback and that is not seen as a reason for refusal. But it demonstrates the difficulty this small lot has in providing reasonable and useable accommodation for a detached house. That is an on site amenity issue. 13 The provision of vehicle access to the carport is an external impact on the neighbours and on the public interest. The applicant says the Public Roads Act gives a right of access from the esplanade reservation, the question is, should vehicular access be allowed in this case? The applicant says the Sperry's have landscaped and "privatised" the esplanade public reservation as their own entry pathway that they share with users of the public path. The applicant has rights to use it too. 14 When the Council approved the renovations to No.7 Holden St, the plans of this proposal were included on the drawings. The Council approved lot 54 without any requirement for consolidation with lot 55, so the Council must have been OK with lot 54 having no back yard. The respondent submitted the Council refused Lot 55 when it approved lot 54 so that submission cannot be presumed. 15 Mr Hallam said the proposed access is required to have 300 mm clearance on both sides of the 3 m minimum width proposed. In the most critical areas at the bottom of the ramp where it is hard against the rock face on Sperry's front boundary there is no room for a car and a pedestrian to pass. This would be a shared zone and requires extra caution in design to accommodate pedestrians and vehicles. Apart from that AS/NZS2890.1-2004 for straight ramps cl 2.5.2 requires 3.6 m width clear of the rock face and the vehicle safety fence. That cantilevers the ramp further out from the rock shelf and increases the transition gradients and crossfall at the cul-de-sac. Also it will have to be signposted 10 kph speed limit as a shared zone. 16 Mr West said a shared zone has to go through the Roads & Traffic Authority and this does not. It is a driveway in a road reservation and only council consent is needed. Mr Hallam disagreed and said it would be a shared zone. 17 It was put to Mr West that the ramp has to be seen as a public road and shared zone to have the legal protection of persons using it amongst vehicles. Also No.5 James and No. 9 Kelly's may want to use it. Mr West said it could be signposted "access to No.7 only". But that would not prevent others using it, and just adds another sign to the "10 kph" and convex mirror on a post outside the Sperry's. 18 It was put to him if it is access only for No.7, the turnaround in James Rd is for its exclusive use and is a "privatisation" of a public reservation by No.7. He agreed it may be seen as that, but the works will provide a better walkway for pedestrians by eliminating the steps adjacent the Sperry's garage at the cul-de-sac. It was put to him it was no safer as the crossfall is unacceptable for vehicles and pedestrians. Mr West said the 1:6 crossfall is for a very short distance on a 10 kph speed limit and is safe. 19 Mr Hallam said the applicable RTA Guidelines cl 3.8.5 in a shared zone requires a min-max crossfall of 2%-5% for pedestrians, and prefers 3%. That is a range of 1:50 to 1:20, so 1:6 is not a safe walking surface. 20 Mr West said that the 1:6 already exists at the foot of the existing steps on the public path outside the Sperry garage, so the proposal is no different. He added that Kelly's Esplanade from the foreshore to the cul-de-sac has no footpath and is between a rockface and a steep embankment so it is de facto a shared zone but not signposted. He thought the proposal is similar. It is however much wider than 3 m. 21 The proposal had included a parking space about halfway up the ramp, past the rock face on the Sperry's boundary, where the rock shelf of the ramp widened. The carspace would be between the ramp and hard against this part of the Sperry front boundary where there is currently grass. Mr West said he only put it there for convenience of the residents, it could be removed. He agreed anyone could use it, and they probably would in the high parking demand period in summer. 22 The applicant deleted the carspace. The point was made that since it existed as a level grass verge, drivers would use it even if not constructed. 23 The point was also made that with the tandem garage arrangement of the proposal, when the rear car in the carport wanted to get out, the front car would either have to use the turnaround and go down to the cul-de-sac, or stay in the turnaround and the rear car reverse into the cul-de-sac. It occurs to me a third option is the front car goes into the space in front of the Sperry's while the rear car uses the turnaround. 24 It was agreed by the experts that the turnaround as drawn would not allow an 85%-ile sized car to use it without at least a 3-point turn, and this is not desirable. The length of the turnaround would have to be extended uphill to minimise the manoeuvring necessary. This would mean excavation and because the turnaround would become part of the public pathway, steps would have to be introduced. Some trees would need removal too. 25 It was put to Mr Hallam that a car is only 1.9 m wide and there should be enough space for pedestrians and a car on the ramp. He said a car has wing-mirrors and is (1.9 + 0.4)= 2.3 m wide so the 350 mm each side is not enough for a person. The car would have to be hard against the rock face or the vehicle safety fence on a 3 m wide ramp to give a person any chance of passing. Also a service vehicle can be up to 2.9 m wide and that means no clearance at all. The extra 300 mm required each side is there for a reason. 26 It was put to him that the ramp would be low usage. He agreed that if only one house used it the statistics show 8-10 times a day. It was put to him there is no other way to get a vehicle to the site. He said he had not investigated that, such as, through No.7 Holden St. He added in 1906 when the subdivision was created, vehicle access was not always a consideration. 27 Mr Nash agreed that with the proposed ramp, the existing landscaping of the public pathway from the cul-de-sac up for about half its length would be removed and could not be replaced. The concrete ramp the steel safety fence and the post with convex mirror and "10 kph shared zone" sign would replace it along most of Sperry's frontage. 28 On the subject site he said it achieves 41% landscaped area when the council wants 35%. Most of the 41% being rock shelf was acceptable he said, there was some vegetation to be planted on site. He agreed that the landscape plan showed most of the landscape work off-site along the vehicle ramp, and a significant portion of that could not be done according to Mr Hallam's evidence.
29 On private open space on the subject site Mr Nash calculated there would be a total of 30 sq m provided on the ground floor terrace and first floor balcony. He thought that is enough for a 2-bedroom house, and there is no LEP/DCP requirement for level yard area, nor that it all has to be vegetated, and rock shelves are natural features. 30 He did not think there would be any precedent by this proposal as there are not many small lots compared to the rest of Northwood. Those he had seen on cadastral maps had existing constructed road access, even if it is by Right of Way. He said compared to the huge houses nearby including No.5 Holden St (not No.5A), the proposal would hardly be noticed from the water. It would have good amenity due to the views over the water. 31 Mr Smith's loss of view is really only from his family room windows, and he only obtains it across the subject site. Based on the Tenacity principle, he could not expect to keep that view. His main views from master bedroom, living room and pool deck and BBQ area are retained. Seated in the family room, the high window sills do not allow the view in any case. 32 Ms Laidlaw says that the house itself is not unreasonable and she would not put the front setback intrusion of the balcony as a reason for refusal. She would prefer the carport be deleted or reduced to a 1-car space so that the impact on the front setback is reduced and the house might have more private open space. Also Ms laidlaw said that would provide a space that occupants could use for solar access as the house and balconies face south and south-west, so in winter it will get no sun, and does not have good orientation. Only bathroom and laundry windows and one narrow bedroom window face north. 33 Her main concerns go to the objectives of the Residential Zone 2(a2). It does not allow flats, town houses, villa homes, it is the lowest density residential zone in Lane Cove. Its objectives include retaining the existing residential amenity of detached single family dwellings, and the LEP aims to maintain and improve the existing amenity and environmental character of residential zones, and to permit new residential development only where it is compatible with the existing environmental character and has a sympathetic and harmonious relationship with adjoining development. 34 In her opinion the closeness to the approved renovations of No.7 Holden St will be mean the two are viewed together as one building, and having no back yard. The only area capable of providing a landscaped setting is on the road reservation. 35 It seems to her that the house itself, if you view it separately from No.7 Holden St may be acceptable, but the two must be perceived together in reality. At best they will look like a large house with a smaller one in its back yard. That is not characteristic of this precinct and I agree with Ms Landlaw's opinion. 36 Even if they are considered to be visually acceptable together, it is due to transfer of impacts offsite to No.9 Kelly's Esplanade. There will be a jarring streetscape impact upon No.9 resulting from the construction of the vehicle access to the proposal right across No.9's frontage.
37 I accept Mr Hallam's evidence. Mr West agreed he had not drawn the plans before me and would not do the engineering design of the ramp access if this proposal is approved. His expertise is not on the construction technicalities. His opinions that the design is acceptable from a traffic standpoint are on the basis that the ramp would be used by residents only and they would get used to the restricted widths. 38 As I have heard, it is likely other drivers would use it together with the many pedestrians both local and tourists who frequent the advertised Sydney Harbour Circle walk that includes the James St pathway, and Kelly's Esplanade and must include the proposed vehicle ramp. The Public Interest and public safety requires that Mr Hallam's evidence be implemented if approved, and that only increases the streetscape impacts on No.9 Kelly's Esplanade. 39 The respondent's final submission that under s.79c (1)(b), (c) & (e) carry some weight. 40 I have formed the opinion that Contentions 1.1, 2, 3.1, 3.4, 5, 6 and 7 are determinative and the proposal should be refused.
Therefore the Orders of the Court are:
K G Hoffman
Commissioner of the Court
cc
11/12/2007 - replaced David & Margaret Cant with Cant - Paragraph(s) Citation field in coversheet
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.
Cant
Lane Cove Council