Deaton v Pittwater Council

Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 71 - Coastal Protection LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan Pittwater Development Control Plan 15

DATES OF HEARING: 13/02/2007 and 14/02/2007

APPLICANT Mr G. Green, solicitor of Pike Pike and Fenwick LEGAL REPRESENTATIVES:

RESPONDENT Ms G. Furness, barrister Instructed by Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10913 of 2006 Rik Deaton v Pittwater Council 10914 of 2006 10915 of 2006

JUDGMENT 1 These three appeals involve the following three development applications: o 10914 of 2006 relates to Development Application No. 367/06 which is for the demolition of two existing detached dwelling houses at Nos 39 and 40 Ocean Road, Palm Beach and the re-subdivision of the two existing lots comprising Lot 2 DP 23856 and Lot 14 DP 592217 to create two new lots with a frontages to Ocean Road. The new lot comprising No 39 Ocean Road is to have an area of 962 square metres and the new lot comprising No 40 Ocean Road is to have an area of 912 square metres. o 10913 of 2006 relates to Development Application No 369/06 which is for the construction of a three level detached dwelling house above a basement car park at No 40 Ocean Road. o 10915 of 2006 relates to Development Application No. 368/06 which is for the construction of a three level detached dwelling house above a basement car park at No 39 Ocean Road.

2 The irregular shaped site has a total area of 1974 square metres and has a moderate to steep slope down to Ocean Road. In addition to the two dwelling houses the site contains significant vegetation including a number of canopy trees. It is located immediately opposite Palm Beach across Ocean Road with extensive views of the beach and the Palm Beach headland. Part of the site, on the west side comprises a right of carriageway providing access to properties at the rear.

3 The locality is predominantly developed with detached dwelling houses of one, two, and three storeys. To the west of the site is Horden Park, otherwise the site is surrounded by dwelling houses.

4 The site is zoned Residential A under Pittwater Local Environmental Plan 1993 in which zone the proposals are permissible with development consent. Also applicable to the site is the Pittwater 21 Development Control Plan. Because Horden Park is a heritage item under the LEP Pittwater Development Control Plan 15 Heritage Conservation Areas is also applicable.

5 State Environmental Planning Policy No 71 - Coastal Protection is also relevant, the land being within the relevant coastal zone.

6 The application was advertised and a number of objections were received from residents of the surrounding area and the Palm Beach and Whale Beach Association. Matters of concern raised in those objections include loss of views, excessive bulk and height, excessive cut and fill, removal of significant trees, non-compliance with various planning controls, particularly the DCP and SEPP 71.

7 In a supplementary letter the Palm Beach Association reiterated its concerns that the buildings exceed the height limit in the DCP and that bulk and scale of the two houses would be too large and would not blend in with the streetscape. Existing cabbage tree palms should be retained and protected. The ground floor would be too low taking into account intertidal zone problems.

8 In addition, letters from the applicant were provided, explaining why he believes that the re-subdivision would be in keeping with be existing pattern of subdivision in the area. Also the concerns of objectors have been accommodated and, whilst not complying with Council's requirements, the site coverage of the development is significantly reduced by comparison with what presently exists on the site.

9 The proposed dwelling houses have since been significantly modified mainly by reductions in height.

10 When the hearing began on-site I heard from: o Mr V Mulligan a town planner on behalf of Mrs P Gerahty of 41 Ocean Road, the adjoining property to the east. o Miss M Campbell a town planner on behalf of Mrs L Aboud of 39B Ocean Road, the adjoining property to the south-east. o Mrs J. Thorpe of 32 Florida Road, the adjoining property to the north-west.

11 Mr Mulligan explained that his clients concerns mainly involved of the relationship of the proposed house at No 40 Ocean Road across the common boundary, particularly in the vicinity of the proposed swimming pool including matters of privacy, noise, fencing and landscaping.

12 Miss Campbell raised a number of concerns, which in essence comprise: o The excessive bulk of the proposed dwelling on No 40 Ocean Road which is positioned with a 2.5 metres set back from the boundary. This bulk is increased by the pitched roof profile. o Non-compliance with the height controls in the DCP. o Both of the proposed dwellings appearing as four levels would have an excessive height, bulk and scale and would thus be contrary to the aims of SEPP 71 and the character and amenity requirements of the DCP. o Approval would establish a precedent to enable No 41 Ocean Road to be similarly developed resulting in devastating consequences in terms of view loss.

13 Mrs Thorpe explained that her concerns include loss of views and loss of vegetation cover except for perimeter planting and the excessive extent of excavation required to construct the basement car park. She was also concerned that the character of the area would be compromised as a result of the four levels of development involved and as a result the amenity of the coast, beach and natural scenery quality would be diminished.

14 Written and oral expert evidence was provided including joint reports from the following: Mr R Staas and Mr R. Moore in relation to heritage; Mr R Fleming, Mr S Guy, Mr N Dickson and Mr P. Webber in relation to planning and urban design; Miss S. Hobley, Miss M Howden and Mr J. Osborne in relation to arboreal and landscape matters; and Mr T Wheeler the applicant's architect.

15 The Statement of Issues identifies matters of view sharing, height, size and bulk, tree removal and landscaping, building colours materials and construction, heritage, SEPP 71, privacy, building line, concept plan and heritage. As a consequence of its consideration of modifications to the proposals and the expert evidence I was advised by the respondent that none of these issues was pressed. Notwithstanding this the Court was asked to give careful consideration to the matters raised in the objections.

16 I have now reviewed the expert evidence including the Statement of Environmental Effects and the memorandum provided by the applicant's architect and agree with the submissions made on behalf of the applicant that the issues raised are satisfactorily answered by the evidence and the changes to the proposal. In this context I note that a number of additional changes to improve the proposal were made during the hearing notwithstanding that these changes were not imperative. I also note that other than the evidence provided by Miss Campbell and Mr Mulligan on behalf of resident objectors, the evidence marshalled on behalf of both the council and the respondent could find no fault with the proposals that would indicate a need for refusal or significant modification. Whilst finding this evidence to be persuasive I should nevertheless comment on number of matters.

17 Regarding the relationship between the proposed house on No 40 Ocean Road and its neighbour at No 41, I am satisfied that the proposed fencing and landscaping, taking into account the removal of existing structures and the proposed setback from the boundary that no unreasonable amenity impacts should arise. I also accept that stormwater drainage and runoff will not only be improved by the proposal but will not be of concern.

18 Regarding view loss from any neighbouring properties I was not made aware of any situation where there would be any view loss of any significance, indeed existing neighbouring houses retain their expansive iconic views.

19 As for the appearance of the proposed dwelling on No 40 Ocean Road when viewed from No 39B, taking into account that this is a built up urban area albeit of quite low-density, the extent that the proposed building will be apparent is not significant despite its pitched roof. The proposed landscaping will in time further mitigate any impact.

20 In relation to SEPP 71 in so far as it seeks to ensure that the bulk and scale of development is appropriate and that beach environments and visual amenity are protected I have considered the architectural perspectives and the landscape plan and taking into account that the two buildings substantially fit within the built form envelopes of the DCP and am satisfied that these objectives are not infringed. In this regard I find particularly persuasive the urban design evidence of Mr Webber and Mr Dickson given their particular expertise.

21 The desired future character of the locality is identified in the DCP indicating that it will remain primarily a low-density residential area characterised by two-storey residences in a natural landscape setting and that future development will maintain a distinct height limit below the tree canopy reflecting the predominant scale and setbacks of existing development. Again Mr Webber and Mr Dickson accepted that the development is appropriate in the context of the character of the locality.

22 I am satisfied that, taking into account existing retained vegetation and the proposed landscaping this proposal will be appropriately responsive to these character requirements. Despite being more than two storeys the proposal will substantially fit within the built form envelopes of the DCP and will have a bulk and scale that generally conforms to the bulk and scale of existing buildings generally to the east, which in my opinion is the relevant character context.

23 Finally, any suggestion that approval would constitute a precedent particularly in terms of view loss cannot be sustained, taking into account my conclusion that this proposal will not result in any unreasonable impacts. Any other nearby development will need to be determined on its own merits.

24 I have therefore decided that the three appeals should be upheld and conditional development consents granted. The conditions will be those which have been agreed and provided today.

      T A Bly
      Commissioner of the Court
      ljr

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