Charles Yates Architects Pty Ltd v Pittwater Council

CASES CITED: Zhang v Canterbury City Council; Tenacity v Warringah Council

Applicant: Mr Gary Green LEGAL REPRESENTATIVES: of Pike Pike and Fenwick Respondent: Ms Dixon of Mallesons Stephens Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10105 of 2007 Charles Yates Architects Pty Ltd v Pittwater Council

JUDGMENT 1 This is an extempore judgment for an onsite hearing today. The appeal is under s97 of the Environmental Planning and Assessment Act 1979 against Pittwater Council's refusal of a development application for the property known as 209 Riverview Road, Avalon.

2 The proposed development is for the construction of a double garage which would also provide for a lift to be included to service the various levels of the dwelling house. The subject site is on the foreshores of Pittwater and the properties opposite are such that there are views obtained over this property because of the steeply sloping topography of the area.

3 The Court has the advantage today of understanding the view loss caused by the proposed development and also has had the opportunity of viewing the view loss from the various residents objectors to the proposed development. 4 By way of background it is noted that the application original submitted to the council was refused. There was an amendment to the development application and a s82A review. The s 82A assessment report recommended approval of the development application and the council however, determined the application by refusal. Subsequent to that time there has been a further amended plan to provide for a lighter weight structure at the top of the proposed garage.

5 This matter has been conducted as an onsite hearing. The Court has the opportunity of understanding the view loss. The other issue in the proceedings is with respect to the solar access achieved through the high atrium style windows of the property adjoining at No. 207 Riverview Road. 6 The Court in its assessment must have regard to the council's controls. The site is zoned residential under the Pittwater Local Environmental Plan and No. 21 is the relevant Development Control Plan. The DCP sets out a number of guidelines and the Court must give 'real proper genuine' consideration to these guidelines, also recognising they are discretionary. In this regard the judgement at Zhang v Canterbury [2001] NSWCA 167.

7 I have considered DCP No 1 and its focal point of my consideration and assessment of this development application. In particular those that have been highlighted to the Court by the respondent concerns View Sharing and the outcome is "to maintain reasonable sharing of views from public places and living areas and no one development is sited to maximise the views of its occupancy at the exclusion of adjoining properties." Public views and vistas are to be protected and maintained and where possible enhanced. It is noted that canopy trees take priority over views. The guidelines require "building lines and heights to be sympathetic to the topography and to maintain a reasonable sharing of the views available from surrounding and nearby properties and those available from the public from nearby public domain areas." 8 It is noted that the garage is set back from the street some 4.6 to 6.3 metres and as such it would allow for visitor parking between the garage and road pavement. The street is relatively narrow winding street with no kerb and gutter and as such does not provide for visitor parking on both sides.

9 The other control in terms of the Development Control Plan is C14 solar access. The outcome for residential development is that: Buildings are designed to maximise solar access during mid winter. A reasonable level of solar access is maintained to existing residential properties to minimise the need for artificial lighting…the main private open space of each dwelling and main private open space of any adjoining dwelling are to receive a minimum of three hours of sunlight between 9 and 3 on the 21st June. Windows to the principle living areas are and windows to the living areas of adjoining dwellings and to receive a minimum of three hours of sunlight between 9 and 3. 10 It is also noted that the DCP provides for a building envelope and the outcome is to achieve the desired future character of the locality and for the bulk and scale of the built form to be minimised for an equitable preservation of views and vistas. The controls include consideration of a variation where the building footprint has a slope in excess of 30%. This will be considered on a merit basis. It is agreed that the slope of the subject site is in excess of 30%.

11 The Court in its assessment of the application and through the process today has a clear understanding of the impact on views. The applicant now has agreed to lower the proposal as we see in Exhibit A by 800 millimetres and having regard to the Court's opportunity of viewing the view loss by the proposed development with the assistance of height poles a reduction of 800 millimetres in my assessment of the application represents fair and reasonable view sharing in the context of the principles which have been articulated of this Court in particular by the Senior Commissioner in Tenacity Consulting Pty Ltd v Warringah Council [2005] NSWLEC 46. 12 The Court in assessing view loss must have regard to the fact that the proposed development represents a reasonable balance. There must also be an expectation that views cannot always be uninterrupted for dwellings that view across other properties. The proposed development with the 800 millimetre reduction I am satisfied provides for a reasonable sharing of views. This is not to say that people will not see the new garage roof structure in its final form. However in my assessment an 800mm reduction would satisfy the principles of view sharing.

13 The original height of the proposal in exhibit A is some 1.8 metre above the highest point of the current roof it will now be approximately 1 metre above the highest point of the roof. In my assessment it can be clearly ascertained from all the photographs that have been provided to the Court that when viewed from the properties opposite from the road way that an 800 millimetre reduction represents fair and reasonable view sharing. 14 The resolution of the foyer front entrance way in terms of the roof with the proposed new curved roof is a matter that requires further resolution in terms of the design and the applicant is given the opportunity of submitting a plan within seven days to the Court. Such a plan is to also show the gradient of the driveway and whether the gradient can be partly absorbed in the width of the council's footpath road reservation. In my opinion a reduction further into the void area is not necessary in terms of the balance of this assessment to look at the application in terms of the applicant's needs also. The applicant's needs as stated that the driveway gradient be such that it provides for a safe entry and exit to the roadway and also provides for visitor parking.

15 It is noted from Mr Lyle Marsh's report that the hedge at front of the property is to be trimmed to 1.2 metres in height and clearly this needs to be an ongoing occurrence to facilitate the continued safety of exit or entrance from the garages to the street. This will also assist in maintaining view sharing for the properties opposite. 16 In terms of solar access the Court has considered the control in the development control plan and the lowering of the roof whilst not quantified in shadow diagrams. I am satisfied that the lowering of the roof by 800 millimetres will provide for some additional solar access for the property at No. 207. While the lowering of the garage will provide for additional solar access in terms of council's controls it could be seen that the western elevation of No. 207 does enjoy solar access in winter there is a partly uncovered portion of the veranda as well which would provide for mid day sun and between 12 and 1 there would be solar access to part of the verandah and part of the living room as well. I am satisfied that the solar access is not a matter that would warrant refusal of the development application but nonetheless a lowering of 800 millimetres will assist in some additional solar access to what is a valued area of the sitting room. The design of No 207 dwelling is that it was designed to have regard to providing for a solar access to the sitting room area and the lowering will assist in partly retaining solar access from the north east.

17 The Court in terms of view sharing has had regard to what are the principle living areas of the various dwellings that I have had the opportunity of inspecting today. The Court is satisfied that the views will be reasonably maintained from the dwellings opposite by the lowering of the roof and the outcome will not be a dominant element in the sight line of any of the dwellings from the various areas that the Court visited today. Many of the dwellings have the opportunity of views from upstairs. The proposed development will not impact for viewing from the upstairs areas of those dwellings. It is noted that some of the dwellings opposite also have living areas at the ground floor but given the topography, given the lowering of the roof by 800 millimetres the proposed development as modified would not warrant refusal. 18 In my assessment this is a case of a balancing exercise. Yes one could also always achieve absolutely no view loss but then there are also reasonable expectations of an applicant that need to be considered. Also the context of what development has also been approved in the street is a relevant matter for consideration.

19 I have been assisted in my assessment here today by the experts. Mr Flemming for the applicant and Ms Haidari for the council and the applicant's architect.

20 Accordingly on the basis of my assessment and reasons above, the formal Orders of the Court will be issued on the receipt of the plans to lower the roof and resolve the foyer area roof.

21 The amended plans received and retained for the council file satisfy the requirement to lower the highest point of the roof by 800 mm. Furthermore, the pitch roof form not only resolves the foyer area but provides for a more sympathetic design in keeping with the architecture of the existing house and roof. The approved plans are drawings numbered 01c, 02B, 03C, 04C, 05C, 06C, 07C, 08C and 09C prepared by Charles Yates Architects Pty Ltd and dated 22 June 2007.

      J S Murrell
      Commissioner of the Court
      ljr

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