Domazet v Eurobodalla Council

Land and Environment Court (NSW)|2011-10-06

N Simmons (Respondent) Solicitors Paul O'Sullivan, O'Sullivan Saddington Lawyers (Applicant)

Daryl Gray, Sparke Helmore Lawyers (Respondent) File Number(s): 10643 of 2011

Judgment 1 This is an appeal against the refusal by Eurobodalla Council (the Council) to modify Development Consent No M859/08 under s 96 of the Environmental Planning and Assessment Ac t 1979 (the Act) for substantial extensions to an existing dwelling at 70 Yugura Street, Malua Bay. 2The grounds for the refusal by the Council are, in essence, that: (a)the modifications proposed do not constitute substantially the same development as that approved as required by s96 (2) of the Act; (b)the proposal is contrary to the provisions of clause 8 (g)(ii) and 14 (b) of the Eurobodalla LEP in that it does not accord with the character of the area nor does it have regard to existing beneficial character features; (c)the proposal is contrary to the provisions of clause 3.2.2 of the Eurobodalla DCP (Residential Design Code) in that it does not maximise the opportunity for views and has unreasonable impact on existing views having regard to the Court's view sharing principles; and (d)given the above, the proposal is not in the public interest. 3The Council's assessment concluded that the proposed modification would cause the development to exceed the maximum building height of 8.5 m above natural ground level under the Eurobodalla Development Control Plan 2006 (the DCP), would significantly exceed the building envelope requirements under the DCP, and was contrary to the view sharing controls in the DCP. Site Details 4The subject site (the site), Lot 87 DP 518784, is located on the northern side of Yulgara Street. The rear (northern) boundary adjoins an area of waterfront reserve with an Open Space zoning being the waterfront of Garden Bay, an embayment of the Pacific Ocean. A zoned open space reserve also adjoins to the east whilst residential properties exist to the west and south. 5The site is 556.4 sq m in area and has a moderate slope from the southern (front) boundary to the northern (rear) boundary. 6The site is zoned 2(g) under the Eurobodalla Urban Local Environmental Plan 1999 (the LEP) whilst the adjoining reserved lands are zoned 6a1 (Public Open Space). 7The site is within Malua Bay, a coastal suburb of Batemans Bay 12 km from the Batemans Bay CBD. The suburb contains predominantly single dwellings up to two storeys, many of which have ocean views due to the topography of the area. 8Extensions have been undertaken to the existing dwelling on the site that are not in accordance with the approval and retrospective approval under s 96 of the Environmental Planning and Assessment Act has therefore been sought for these extensions, with some modifications proposed to reduce the impact. The Council has refused to approve the extensions as are proposed by the s 96 modification. 9The modifications entail increasing the height of the approved dwelling and varying the shape of the roof (the modified proposal).

Background to the Application 10The proposal to extend the house began in 2007 when an application for extensions was withdrawn by the applicant following the Council's advice that it would not be supported due to issues of height, bulk and scale. At the time the proposed height was 13.96 m AHD. The Council responded in a similar manner to an application lodged in 2008. In early 2009 discussions were held between the applicant and the Council to determine if these issues could be resolved, particularly in terms of the height. Amended plans were submitted in March 2009 and approval was granted by the Council for alterations and additions to the existing dwelling with the approved plans showing the proposed roofline at RL13.4. 11During construction of the approved extensions, and following a query on the height of the development from a neighbour, a s 96 modification application for modification was lodged for an increase in total height to RL 14.64 m AHD, which is the current height of the building. This was 1.24 m higher than the approved height. 12The modification application was notified and eleven submissions were lodged. An amended proposal was then submitted which reduced the overall height of the building to 14.42 m AHD, being a reduction of 220 mm, and 'stepped' sections of the roofline reducing part of the roof by a further 280 mm. This modification increased the approved height by 1.02 m over a section of roofline approximately 10 m in length along the street frontage. 13This amended proposal comprises the modified proposal the subject of this appeal and was notified. A detailed submission was lodged on behalf of seven objecting owners along with a further four individual submissions of objection. At the on-site hearing, the property was viewed from a number of adjacent properties with objectors principally concerned with the extent of the impact on views including to interface and beach areas. 14The Council refused the application, citing it was unacceptable in terms of the impact on neighbours' views and the character of the area and arguing the modifications were not in the public interest and did not constitute substantially the same development as that approved.

Relevant Planning Controls 15The development objectives and controls relevant to the application are found in the LEP and DCP. The DCP sets a building envelope with a maximum building height of 8.5 m above natural ground level and a maximum of two storeys, with a formula then used to determine vertical side and rear maximum heights. 16The modified proposal has a maximum height above natural ground level of 8.82 m, which is a 0.32 m exceedance of the DCP control. The modified proposal also does not comply with the DCP building envelope with vertical exceedance on the western elevation of up to 2.17 m and on the eastern elevation of up to 1.33 m. 17The DCP objectives in terms of height include, inter alia, to ensure that the scale of development does not obscure or dominate the streetscape or important landscape features, to minimise the effects of the bulk and scale on sloping sites and to "minimise disruption to views, loss of privacy and loss of sunlight to existing residential development". 18Design principles found in the DCP at p 36 require that new buildings should "adopt the predominant height and scale of adjoining buildings and have a similar bulk and mass to their neighbours". On sloping sites, the DCP encourages buildings which step down the block which "also protects view corridors across the site". View Sharing 19The DCP objectives for view sharing are:

To provide opportunities for view sharing, where practical, for existing and future residents, having regard to the entitlement of adjoining land owners to build within nominated building envelopes or to satisfy the provisions of (the DCP); and
To maximise the opportunity for views to enhance the amenity of new development. 20In particular, the DCP at p 45 requires that new development has "regard to existing view corridors and is to be designed so that these view corridors are retained where possible". 21In terms of impact on views, the Court's attention was drawn to Tenacity Consulting v Warringah [2004] NSWLEC 140 ( Tenacity ). In particular, that water views, and particularly iconic water views, are valued more highly than land views, that whole views (such as to water/land interfaces) are more valuable than obscured views, where the views are obtained from, and the reasonableness of the proposal that is causing the view loss. A complying development would be considered a more reasonable one than one that breaches controls where even a moderate impact may be considered unreasonable. 22Both the planning expert for the applicant (Ms Purdon) and the Council's planner (Mr Costello) agreed there will be an impact on neighbours' views, but did not agree on the extent or the reasonableness of the impact using the principles established in Tenacity . 23The experts agreed that the main views impacted were water and beach views from three residences on the opposite side of Yugura Street, including views from balconies and living rooms. They did not agree whether the impact extended to an impact on views of the interface between the water of Garden Bay and the headland and shoreline. 24Mr Costello considered the view impact to be significant for No. 53 Yugura Street, including of Garden Bay and the interface of the bay and shoreline, but Ms Purdon believed that the approved dwelling would have caused this impact in any event. The Council did not accept this on the basis that: (a)The hearing site view demonstrated that the building if constructed in accordance with the approval was clearly below the land/water interface whereas this interface view had been lost with the dwelling as constructed and as would exist under the modified proposal. (b)The Resident of No. 53 Yugura Street gave evidence that he could see the northern side of Garden Bay prior to the dwelling being extended and had understood this view would be retained had the dwelling been constructed as approved. (c)The highest point of the pitch roof of the dwelling on the site prior to its extension was in line with if not slightly lower than the land/water interface and this was higher than the height of the approved development, meaning the view of the interface was retained under the approval. 25The Council also argued that views which would be lost were high value views and the impact would be severe, an opinion supported by the objecting residents. 26The Court was referred to Padfurn v North Sydney Council [2005] NSWLEC 444 (Padfurn) and Super Studio v Waverley Council [2004] NSW LEC 91 (Super Studio) , in terms of establishing the planning principle of the necessity or reasonableness of the proposal causing the view impact and its compliance with controls. The Council argued that the modified proposal is neither necessary nor reasonable as the site adjoins the foreshore and has maximised its view capacity at the expense of neighbours, with the same views still being achieved under the existing approval without severely impacting on the views of neighbours. 27The experts disagreed on whether the departures to the DCP were significant or resulted in the view losses of most concern. 28Mr Costello was of the opinion that, even if the modified proposal complied with the DCP building envelope controls, it still had to meet the DCP objectives and a more skilful design (as was accepted by the Council in the approved design) could have significantly reduced the severity of the impact. 29Counsel for the applicant, Mr Ireland, argued that the increase in height from that approved was marginal, that the controls of the DCP can be varied if the objectives of the DCP could still be met. In this regard, the DCP objectives specifically give an entitlement to the applicant to build to the building envelope 'maximum' stating: "To provide opportunities for view sharing, where practicable, for existing and future residents, having regard to the entitlement of adjoining land owners to build within nominated building envelopes" . (emphasis added) 30For this reason Mr Ireland considere d that: (a)the DCP must be given fundamental weight and take the building envelope into account in assessing the reasonableness of the view impact, (b)that it was not the minor non compliances with the building envelope which created the view impact, (c)the reference in the DCP was to retaining view corridors and the loss of view corridors were not contended, and (d)there would be significantly more view loss if the dwelling was extended to the maximum allowed by the building envelope in locations where this had not been proposed. 31Finally, in terms of the view impact issue, the Council argued that the controls did not grant an automatic entitlement to, for example, develop to the maximum height permitted by the DCP. Mr Costello considered that the impact of the development on views and existing development had to also be considered, referencing Tenacity where, even with a complying proposal, "the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours". In this regard, Mr Costello advised that the Council considered the approved design was such a "more skilful design" thus meeting this test whereas the modified proposal did not.

Impact on the Character of the Area 32In terms of impact of the character of the area, Mr Costello believed that the modified proposal will have a greater height and mass than other residences in the street and adjoining the foreshore and therefore an adverse impact on the character. 33Ms Purdon considered that the proposed dwelling was consistent with the scale of new dwellings in the locality and, whilst being greater in scale than its neighbours, the character of the area was changing with new development capitalising on the views and proximity to the water. The site's neighbours would likely therefore extend to a similar bulk and scale. 34The Council cited Veloshin v Randwick Council [2007] NSW LEC 428 in assessing height and bulk - in particular whether the impacts may be reasonably expected under the controls and whether such controls are aimed at preserving the existing character of an area and, if so, does the proposal fit this character. In Mr Costello's opinion, the non-compliance with the building height controls gives rise to impacts from this proposal which are not consistent with the impacts that may be reasonably expected under the controls. In his view, the approved development was substantially complying and would have resulted in a development that could reasonably be expected under the DCP controls in that it would be less bulky and not dominate the landscape or be inconsistent with its neighbours. 35The Council also argued that the relevant objectives of the LEP and DCP clearly indicate a desire to preserve the existing character of the area. This character was agreed to be one and two storey dwellings of relatively consistent height, and the controls aim to retain this consistency. The Council considered this applied to adjoining buildings and neighbours not the broader locality and is particularly relevant to assessing a dwelling in waterfront/foreshore location and context where height and views are "particularly sensitive issues". 36In this regard Mr Costello believed that, when viewed from the street and the foreshore, the modified dwelling will dominate the landscape and not fit with the existing character of the area. Furthermore, it would set an undesirable precedent for future foreshore development and negatively change the character of the area. 37Ms Purdon accepted that the modified proposal would stand out from nearby properties when viewed from the foreshore due to its height but also because of its colouring. However, in her view, adjoining properties were under-developed and would likely be redeveloped to their full potential to maximise on location and views as had occurred in other properties in the locality. Furthermore, there were a number of other substantial new dwellings in the near vicinity which were clearly visible from the foreshore.

Findings 38In my opinion, the reasonableness of the development sought needs to be considered. The site has a foreshore location with uninterrupted water and interface views, and the design of the approved development maximises these without needing the modifications sought to materially improve these. In contrast however, the modified proposal has, in my view, a significant and unnecessary impact on the views of neighbours which are largely highly valued water views. 39It was agreed by both parties that the impact of the proposal on views and character were relevant planning considerations. Minimising view impacts and retaining character are part of the Council's core planning controls. The modified proposal, relative to the approved proposal, needs to be assessed in that context. 40It was evident that minimising the loss of views, essentially by limiting the height to two storeys and requiring building envelope compliance with only minor exceedences, were essential requirements of the Council and that the design of the proposal had evolved over some years to address these. The Court notes that the approved development was considered by the Council to be an acceptable compromise between the applicant's development aspirations and the concerns of the Council and the neighbours to minimise impacts, particularly on views. 41In this regard, the Court accepts the approved development allowed significant extensions to the existing dwelling which did impact on views but did so having regard to the DCP controls and the reasonableness of enabling the owner to maximise the site's foreshore location and consequent value. 42In contrast, the Court considers that both the constructed dwelling and the modified proposal do not achieve these objectives and have not been justified by the applicant having regard to the Council and neighbours concerns which I consider to be validly based. By constructing an essentially three storey dwelling to a height and building envelope in excess of what was approved, and by not proposing any significant alterations by way of the modified proposal, the applicant has demonstrated to the Court that the potential impact on views and the bulk and scale of the modified proposal are unacceptable and would create an unacceptable precedent, irrespective of whether the dwelling complies with the maximum height limits of the DCP. 43I accept that a dwelling fully developed to the controls allowed by the building envelope in the DCP may have had greater impacts. However, compliance with the building envelope is not the only requirement and, in any event, is not achieved in this application. There remains a requirement to have regard to the view impact considerations required by the DCP and as set out in Tenacity and Super Studio . 44The Court accepts that the area is undergoing and will undergo change as under-utilised properties are extended creating larger dwellings that exist on many sites in the locality today. This however, only makes it more important that the development of the site does not set a precedent where the objectives of the DCP cannot reasonably be met, of which the view sharing objectives must be given significant weight given the waterfront location and topography of the area. 45In this regard, it would be prudent for the Council to review the DCP building envelope control vis a vis the DCP's view sharing objectives, particularly for foreshore properties where impacts on views are likely to be greatest. In this regard, clarity is required that development entitlement does not exist even if there is building envelope compliance, if the view impacts are unreasonable. This is clearly the intent of the DCP and the Council and accords with the principles outlined in Tenacity . 46Finally, in terms of view impacts, it is of particular relevance to consider whether the impacts on views are necessary and reasonable in the circumstances. In my view, they are not. 47The variance to DCP controls and objectives sought are not necessary to achieve the views available from the site nor to realise the site's development potential, given there appears to be relatively few site design constraints. Yet the design of the modified proposal will have adverse impacts that are unnecessary when considered in the context of the existing views of a number of neighbouring properties. This is noting the Court's finding in Super Studio that "the acceptability of an impact depends not only on the extent of the impact but also on the reasonableness of, and necessity for, the development that causes it". 48I also find that the bulk and scale of the modified proposal, at essentially three storeys and with the exceedences proposed to the side elevations, would have an adverse impact on the character of the area and create an undesirable precedent for future development which has not been justified by the applicant. 49I make this finding notwithstanding that I accept Ms Purdon's opinion that the impact should be viewed in terms of the adjoining area not simply the immediately adjacent neighbours, that the adjoining properties will likely be developed in the future for substantially larger dwellings than exist today, and that there are already a number of large two storey dwellings in the vicinity of the site. This does not however, justify the bulk, scale and essentially three-storey development that is the subject of the modification proposal. 50Given that I do not consider the modification justified, it is not necessary to deal in any detail with the Council's argument that the modification proposed does not meet the test under s 96 of whether the modified proposal is substantially or materially the same as the approved development. 51However, it is my finding that the development was effectively a negotiated outcome after a period of several years where the key issues remained for the Council: retention of views and, consequently, the height of this development; bulk; and scale. To seek a modification after an approval is given, which essentially requests the Council to revisit the core issues that were consistently and clearly found to be unacceptable to the Council and communicated to the applicant is in my view not in the spirit or intent of s 96. 52Given the planning circumstances had not changed between the approval and the modification sought, I fail to see how the applicant could reasonably expect that the Council or the neighbours would find the modified proposal now acceptable, when essentially the same proposal had clearly never been acceptable as part of the original application. 53Accordingly, the appeal is dismissed.

Orders 54The orders of the Court are that: 1.The appeal is dismissed. 2.Modification Application M859/08 under s96 of the Environmental Planning and Assessment Act for additions and alterations to an existing dwelling at 70 Yugura Street is refused. 3.The exhibits are returned to the parties with the exception of Exhibits A and 1. J L Smithson Acting Commissioner of the Court 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. Decision last updated: 16 November 2011

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Judgment (8 paragraphs)

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Cases Cited (2)