Colston Budd Hunt & Kafes Pty Limited v Pittwater Council

Thomas v Pittwater Council [2003] NSWLEC 19 Vasik Pty Ltd v Penrith Council (NSWLEC, 24 February 1992) CASES CITED: Moto Projects (No 2) v North Sydney Council North Sydney Council v Michael Standley [1998] 43 NSWLR 468 Zhang v Canterbury City Council [2001] NSWCA 167 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 15/07/2008 and 04/08/2008

APPLICANT Ms S. Duggan, barrister Instructed by Ms T. Spiegel of Spiegel and Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr R. Beasley, barrister Instructed by Ms S. Puckeridge of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10333 of 2008 Colston Budd Hunt & Kafes Pty Limited v Pittwater Council This determination was given extemporaneously and it has been edited prior to publication

JUDGMENT 1 This is an extempore judgment for a matter that originally commenced on site as a s 34 conciliation conference. The parties consented to me at that time determining the matter with a further hearing that has taken place today under section 34(b)(3)(b)(ii) of the Land and Environment Court Act 1979.

2 The appeal is under s 96(6) of the Environmental Planning and Assessment Act 1979 against Pittwater Council's refusal of a modification application for the property known as No. 205 Riverview Road, Clareville.

3 The applicant in these proceedings is seeking to amend the consent issued by the Council, 10 October 2007 by the deletion of condition number D14 imposed by Council requiring the inclinator to terminate at a lower level in the garden as opposed to adjoining or abutting the lower deck of the subject dwelling as shown on the plan lodged with the development application. 4 The modification application is for the inclinator to run from the dwelling house to the waterfront, rather than as approved with the condition to run from the waterfront to a position below the house in the garden.

5 The council has approved alterations and additions to the dwelling over the years, and the application consented to in October 2007 was for waterfront facilities including a boatshed, a sea wall, and an inclinator to connect the waterfront area to the lower deck of the dwelling.

6 The locality can generally be described as very steep topography with magnificent views afforded over the Pittwater waterway. The area is undergoing change with redevelopment and major alterations and additions to many dwelling houses in the vicinity.

7 The council in these proceedings contends that the proposed modification is not substantially the same development, in that "it would eclipse the reasons for the imposition of the condition on the consent to terminate the inclinator at the mid-garden level." 8 The Court has the benefit of evidence from a number of experts, including Mr Lindsay Hunt for the applicant, a consultant town planner, Ms Amy Allen Council's town planner, and also the landscape architects. The Court also has the benefit of inspecting the subject property and the adjoining properties that is at No. 203 and 207 Riverview Road.

9 The owners of No. 203 Dr Oliver and Ms Peiris gave evidence to the Court. They are concerned about the visual impact and the loss of privacy by the termination of the inclinator at the lower deck of the adjoining property as opposed to the mid-garden level that is at a lower level. They are also concerned about noise and intrusion on their amenity as the inclinator is proposed very close to the common boundary with No. 205 without the ability to screen the structure with landscaping on the subject land at No. 205. 10 The Court also had the opportunity of viewing the proposed development from the adjoining property of Mr and Mrs Smyth, at No 207, I note that there is a separation distance of approximately the width of the block that is some 14 metres to the boundary of No 207. .

11 As noted above the proposal this morning now before the Court has an amended landscape plan, together with details of separation distances, and the height of the various pylons that would support the inclinator. The inclinator by the nature of the very steep topography would require 7 support columns/pylons in various locations from the waterfront up to the lower deck. The supports would generally be in the order of a maximum height of slightly over 3 metres above the ground to lesser heights.

12 Council has a Development Control Plan under which the proposal must be assessed. The proposal is permissible in the zone with development consent, and the DCP provides for "Incline passenger lifts and stairways", cl C1(19) states for outcomes that: "Inclinator, passenger lifts and stairways that cause minimal visually and acoustic disturbance to the environment and neighbours" 13 The controls include for incline passenger lifts and stairways that: (1) Be designed and located so they do not involve excessive excavation or the removal of natural rock or trees. (2) Be erected as near as possible to the natural ground level of the site, and shall not involve the erection of high piers or visible retaining structures. (3) Be located to minimise the effects of noise from the motor and overlooking of the adjoining properties. (4) Be painted to blend in with surrounding vegetation, and screened by landscaping. (5) Be setback 2 metres from the side boundary. (6) Be located wholly on private land. (7) Have a privacy screen where there is a direct view within 4.5 metres to a window of a habitable room or another dwelling." 14 The first step that the Court must consider is the provisions of s 96. It was agreed that the proposal is "other modifications", under 96(2), and "the consent authority must be satisfied that the consent as modified relates to substantially the same development as a development for which consent was originally granted." The application was advertised and therefore it satisfies this requirement.

15 For an assessment of the question of substantially the same development I am guided by a number of judgments of this Court, and many of those are summarised in the judgment of his Honour Justice Lloyd in Thomas v Pittwater Council [2003] NSWLEC 19, wherein his Honour refers to previous decisions of the Court. In particular Vasik Pty Ltd v Penrith Council (NSWLEC, 24 February 1992) a decision of Stein J, where he states: In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situation. In approaching the exercise one should not fall into the trap of saying that the development was for a certain use, and, as amended, it will be for precisely the same use and accordingly is substantially the same development. 16 Other guidance is provided in Moto Projects (No 2) v North Sydney Council, where his Honour Bignold J said: The comparative task does not merely involve a comparison of the physical features of components of the development as currently approved and modified, where the comparative exercise is undertaken in some type of sterile vacuum, rather the comparison involves an appreciation, qualitative as well as quantitative of the development being compared in their proper context including the circumstances in which the development consent was granted. 17 I have the benefit of council's original assessment of the development application, and council's initial decision (contained in the Respondent's bundle). It is noted that the original assessment of the application, recommended approval of the inclinator as proposed. Council imposed the conditions such that the inclinator be terminated short of the dwelling house in the garden, and in doing so it had regard to objections and submissions that had been received about visual privacy and overlooking, and impact on the surrounding residential properties.

18 The Court as a threshold test must determine whether it is substantially the same development. As I said the council contends that the development would not be substantially the same development, and on this basis it is said that the reasons for the imposition of the condition would be eclipsed and the development would have adverse impacts on the adjoining property and because of the additional height of the pylons required the modification application would not be substantially the same development.

19 I am guided in my assessment, as I stated by the various judgments within this Court, the Court of Appeal and in this regard the respondent agreed with the cases cited in the applicant's submission as to whether it is substantially the same development. This includes the Court of Appeal judgment for North Sydney Council v Michael Standley [1998] 43 NSWLR 468: Modify has been held to mean to alter without radical transformation" and substantially the same to mean "essentially or materially the same". 20 In my assessment, of whether the modification application is substantially the same development I have the benefit of:all the evidence to the Court including: the plans; the relative levels; (as agreed to between the planners); the height of the proposed pylons/; the amended landscape plan; and the site inspection. I am satisfied that the proposed development meets the threshold test of substantially the same development in accordance with s 96 of the Act.

21 I conclude this because in my assessment the proposed modification would not have the effect of either transforming the development or creating significant impacts in its context or in the circumstances in which the original development consent was granted. The application as approved is for a boatshed, ancillary waterfront facilities and the inclinator. I am satisfied that the proposed modification will not radically transform the development and it is essentially and materially the same development as approved. The test is the development as approved, not as shown in the original development application.

22 As such the application can be considered on its merits as the s 96 modification application satisfies the threshold test. I now move to a merits assessment of the modification application, which includes the provisions of s 79C as of relevance to the modification application. This includes impacts on adjoining properties, and the environmental impact of the proposed modification. 23 I appreciate that people do not always embrace change and development, but the role of the Court in a merits assessment is to assess the reasonableness of the modification application, and whether the impacts are reasonable in the context of council's planning regime. In undertaking this I must have regard to the judgment of Zhang v Canterbury City Council [2001] NSWCA 167 wherein development control plans must form a focus, or a central part of, or a fundamental element in a merits assessment of an application. In Zhang the Chief Justice stated that: The consent authority has a wide-ranging discretion, one of the matters required to be taken into account as that of public interest, but the discretion is not at large and is not unfetted...the DCP has to be considered as a fundamental element in or a focal point of the decision-making process...A Development Control Plan is discretionary and one must have regard to the individual merits of the proposal as such. 24 I have given the DCP significant weight, I have also had regard to the judgment of the former Chief Judge of the Court, McClellan CJ, in the matter of Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 that requires me to consider the consistency with which council has determined applications against its own DCP's. In this regard Ms Allen for council, said that there were examples of where the 2 metre setback from the side boundary had not been adhered to and that this provision had not been consistently applied. This does not mean I have disregarded the 2 metre setback, but nonetheless approval of this modification application would not create a precedent in terms of the application of council's own controls. Consistency in decision-making is important and provides for certainty in the planning process. At the same time each application must be assessed on its own merits having regard to the circumstances of the case.

25 Following the view an amended landscape plan was submitted for greater and more substantial landscaping to provide for a visual screening of the proposed inclinator from No. 207. The landscape experts generally agreed that the proposal, and the planners also agree, will have a minimal impact on No. 207. I am also satisfied with the additional landscaping proposed and the separation distance of some 16 metres to the dwelling of No.207, that the impacts on No.207 would be minimal. 26 With respect to the impacts on the adjoining property at No. 203, the existing situation is that the external staircase of No. 205 from the upper living/kitchen area to the lower deck is constructed on or in very close proximity to the common side boundary. During the course of today's proceedings it was agreed by the applicant to provide timber screening to the existing staircase.

27 The adjoining neighbours at No. 203 are concerned that the proposed modification to the inclinator will have unreasonable impacts on their amenity because in one sense because of the greater amount of use/traffic generated by the inclinator and by the greater use of the lower deck and the staircase adjoining their boundary. It was agreed by the applicant that the inclinator car carriage would have privacy screens attached to the two elevations that would be visible from No. 203.

28 At this point I will state that in areas where there are significant and magnificent water views afforded by steep topography, it is not uncommon for a degree of cross-viewing between properties, in particular where more expansive views of the water can be obtained across side boundaries. This is part of suburban life in such locations where the nature of the topography is steep and it would be more the exception than the rule for there to be no mutual cross-viewing from one property to another. 29 It was accepted by Ms Allen that with the proposed privacy screens and measures that now form part of the application, that there would be less opportunity for looking up from the deck and the stairs of No. 205 to No. 203. I will also say it is generally an accepted planning principle that when one looks down that is generally considered to be a greater imposition than looking up.

30 The separation distances were identified in the plans and in the report of the surveyor, and having regard to the relationship of the properties, having regard to the living areas, the open space areas, and the use of the inclinator for residential purposes I am satisfied that the proposed modification will not have unreasonable impacts on the amenity and privacy of No. 203. The facts that lead me to conclude this are that No. 205 is some 8 metres forward of No.203 and considerably more elevated than No.205. The relative deck levels of No.203 are: bottom deck 23.9; middle 26.9; and top balcony 30.06. The upper landing adjoining the inclinator and middle deck of No.205 is RL 24.35. The separation distance from the access point of the inclinator to the lower deck railing of No. 203 is about 8.4 metres and the separation distance to the doors and windows of the living areas of No.203 is some 14 -16 metres at an oblique angle (exceeding the 4.5 metre guide in the DCP).

31 In the circumstances I am also satisfied that the variation to the 2 metre setback in the DCP is justified. Similarly the other guidelines in the DCP I have given central consideration to and I am satisfied in the circumstances of this case that on a merits assessment the proposal is acceptable. The height of the piers is a factor of the steep topography and in the context of the area with natural rock outcrops and the proposed vegetation the proposal is satisfactory.

32 In areas of steep topography for waterfront areas it is not an unusual occurrence or surprise for an inclinator to be constructed. The role of the Court is to assess the reasonableness of any impacts that may flow from such a facility and I am satisfied with the amended plans and with the conditions proposed by the council, and as generally agreed to by the applicant, that the proposal and the use of the inclinator, from 7 am until 10 pm at night with a maximum of 25 movements per day, is not unreasonable and will not have a significant impact on adjoining properties. It will serve a residential property and in terms of its use, yes from time to time there may be visitors and there may be a number of movements of the inclinator, that is not to say it is a commercial activity with a continuous flow of people using the inclinator every day of the year. 33 I am also satisfied in terms of the amelioration measures for the privacy screens both on the staircase that connects to the lower deck, and the privacy screens on the inclinator itself, that the proposed development will not create unreasonable overlooking, that is 'viewing up' to either the decks or dwelling of No. 203. As I stated, a degree of mutual overlooking should be an accepted part of living in this locality as indeed it is for similar locations that provide for expansive views.

34 The landscaping will also assist, this is not to say that the inclinator will not be seen from the adjoining properties at 203, or 207, but the landscaping will soften the proposed inclinator and the pylons. As I stated the setback of 2 metres is not complied with and the setback is some 600 to 650 millimetres from the common boundary with No. 203, I acknowledge that this does not provide for sufficient space for screening, but I am of the view that it will not be overwhelming in terms of a structure, and it will be softened by landscaping. 35 With respect to the submission made on behalf of the respondent, that the movement of the car would have an overbearing or unreasonable impact to the enjoyment of the property at No. 203. I do not agree that the proposed modification will either substantially change the approved development or that on a merits assessment it will significantly impact on the adjoining property by way of noise, overlooking or in a visual sense.

36 The applicant has generally agreed to the conditions. It is noted that there is a condition which requires the carriage to have its docking station at the garden level. It is noted that technically this cannot be provided for, but there is to be signage to ensure that this is its regular resting/docking station. As I stated, there has also been agreement for privacy screens on the stairs, and I am also of the opinion that this will assist in the perceived privacy /overlooking concerns of the neighbours at No. 203.

37 The applicant did not agree to a condition for noise on the basis that one can complain to the Council in the event of unreasonable noise impacts. I am persuaded that this condition should be deleted, that is condition B(9), "Noise from the operation of any plant or equipment shall not exceed..5 dB(A) against background noise". It should be deleted because other legislation sets standards and provides for recourse in the event of unreasonable generation of noise. 38 The applicant is prepared to accept conditions which are often not imposed on residential properties, such as the inclinator not being used after 10 pm at night, and on a restricted number of movements per day.

39 In summary for the threshold test I am satisfied the proposed modification application is substantially the same development as the deletion of the condition to have the inclinator terminate in the garden as opposed to the lower deck does not have the effect of undermining the intent of the original consent and I am satisfied that this is substantially the same development for which consent was granted. I note that when the subject condition was imposed council did not provide a reason.

40 In my overall merits assessment of the facts and evidence to the Court, under s79C of the Act, I am satisfied that the residential amenity of No. 203 and No. 207 for both the internal living areas and outdoor areas will not be impacted to warrant refusal of the application. I am also satisfied in my assessment of the stated outcome under clause 19 of the DCP "the proposal will cause minimal visual and acoustic disturbance to the environment and neighbours". The respondent raised no issue that the proposal would be visually intrusive when viewed from the water. 41 I understand that people enjoy their amenity, in particular in this wonderful location, but the impact of this proposal on adjoining properties is not unreasonable and departure from the DCP is justified in the circumstances. DCP's provide a focus for assessment but they are not mandatory. In my assessment residential amenity can be maintained for all in this locality with approval of the modification, subject to conditions.

42 Accordingly the formal Orders of the Court are: 1. The s 96(6) appeal in respect of the property known as 205 Riverview Road, Clareville is upheld. 2. The s 96 modification application submitted to Pittwater Council and as amended is approved subject to the conditions contained in Annexure A. 3. The exhibits are returned to the parties, with the exception of 5, 10, F and H.

          J S Murrell
          Commissioner of the Court
          ljr

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