Easton v Sutherland Shire Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 05/12/2005, 06/02/2006 and 10/02/2006

APPLICANT Mr P Clay, barrister SOLICITORS Michael Flaherty LEGAL REPRESENTATIVES: RESPONDENT Mr S Berveling, barrister Instructed by: Mr C Mathieson and Mr A Markham, solicitors of: Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10671 of 2005 Mark Easton v Sutherland Shire Council

JUDGMENT This determination was given extemporaneously and it has been edited prior to publication 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Sutherland Shire Council's refusal of a development application for a dwelling house at the property known as No.5-7 Griffin Parade, Illawong.

2 The subject site has a street frontage to Griffin Parade of 10.5 m fanning out to 13 m at the foreshore with the Georges River. The side boundaries are 120 and 137 m yielding a site area of 1530 sq m. There is a considerable difference in the topography and from the road through to the water there is a drop of some 50 m. The area is generally characterised by the fact that it is very steep and well vegetated in places. In particular where the vegetation has not been disturbed along the foreshore and in front of other properties.

3 It is important to note that the subject property has a dual zoning in that it is 2(e)(1) for the upper portion and for a 30 m foreshore band it is zoned 6(a) public recreation under the Sutherland Local Environmental Plan.

4 The locality can also be characterised as one that has a varied mixture of architectural styles and periods of development in terms of many older dwellings being erected at the turn of last century and there are an increasing number of new residences and redevelopments taking place within the area. The subject site has a heritage building next door erected close to the foreshore.

5 It is important also to note for the purposes of this judgment that the Court originally met on site and this commenced as an on-site hearing at which time the Court heard from the two experts; Council's expert Mr Greg Hand, a senior town planner, and Mr Warren Long the applicant's town planner. At the on site hearing the Court expressed concerns about the design of the dwelling and during the course of the on-site hearing it was agreed that the applicant should be provided with the opportunity to submit an amended plan and in that respect the applicant has agreed to pay a sum of $3200.00 to the Council as part of its costs in the assessment of the amended plans.

6 The proposal is to demolish the existing old dwelling that is partly within the 6(a) zoned land and to construct a multi-levelled home stepping down the site with a set back of some 9 m behind the change in the zone boundary that is 30 m behind the foreshore and also to construct a swimming pool. The existing driveway is to be utilised in the development of the dwelling house.

7 One of the issues initially raised by the Council, which still remained an issue at the end of the proceedings was whether in fact the house was the most appropriately located in terms of the site constraints and that there are other available building areas.

8 At the on-site hearing the Court expressed the view that it considered it was reasonable to provide the platform generally in the vicinity as proposed in the application. This has the advantage of utilising the existing driveway and access to the subject site, which is a very long narrow block. The Court is also conscious of the fact that if the dwelling is more towards the road this would place it in a position next to other buildings and as such providing less amenity for the occupants of the dwelling at No. 5-7 and the Court considered that it was reasonable given that there is a zoned 30 m foreshore public recreation area in front of the subject site which is currently owned by Nos. 5-7 and the dwelling is even further set back from that zone interface.

9 The Council's planning regime is that the subject site as I stated is zoned as 2(e)(1) under the Sutherland Local Environmental Plan 2000 and for the record the objectives of residential zones include: "When considering a development application, consideration to be given to the impact that the proposed development may have on adjoining development, buildings and open space. (c) The cumulative impact of successive development on the general character of the neighbourhood. (d) The impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area. Any adverse impact on the natural and built environment. (h) The impact of the proposed development may have on any public area or water body and view and visual amenity." 10 Clause 32 sets out bushland considerations and includes: "(d) The protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape."

11 The objectives of the 2(e)(1) zone that are relevant to the consideration of this development application include: "(a ) whether scale amenity and general character of the area is preserved where the streetscape and views to the land from the waterways are characterised by one and two storey detached residential buildings. (c) Which is protected from visually intrusive development especially where buildings or works may be viewed from the waterway and where there is significant vegetation; and (e) Where the natural environment is protected from development that would harm the foreshore and habitats within the vicinity of the waterway." 12 Height provisions are contained in cl 34 and there are objectives of the height restrictions that I must take into consideration. I will identify the objectives when I look at the SEPP 1 objection but in terms of height there is a limitation of 7.2 m to any point on the upper most ceiling and 9 m to the highest point of the roof. There is a floor space ratio, cl 35, that provides for a 0.4:1 ratio. The proposal complies with this provision and indeed it also complies with the minimum landscaped area and for the 2(e)(1) zone this is 50% of the allotment and for allotments burdened by a right of carriageway 25% of that area may be included as landscaped area. There are minimum allotment sizes. The subject site complies with the above controls except the height.

13 The Development Control Plan is the other relevant matter that the Court must give genuine and proper consideration in its assessment (Zhang v Canterbury City Council [2001] NSWCA 167). I will just cite the objectives in terms of the design and siting of dwellings. The general objectives are that: "Dwellings be designed with regard to the site conditions to minimise the impact on the landform and adjacent waterway. (2) That dwelling blend into the natural surroundings. (3) That dwelling designs have regard to preserving existing views. (4) That dwelling designs have regard to the impact on the amenity of the adjoining development and surrounding properties."

14 Then in terms of landscaping whilst the development also complies with the landscape provision it is important to note that: "New dwellings in the foreshore areas are sited so that there is minimal disturbance to the natural landscape with significant vegetation retained and enhanced."

15 Vegetated linkages to habitat areas should also be preserved, reinstated or provided for wildlife movement.

16 The height objectives I will detail in terms of the SEPP 1 objection. Council identified a number of issues in the Statement of Issues. These include: the height and scale of the proposal when viewed from the waterway and adjoining properties; the height limitation of 7.2 m not being complied with and the Development Control Plan provisions, in particular, for height and the excessive excavation for fill and construction of retaining walls on the subject proposal. The other issues identified include privacy and the fact that the proposal was considered to be an overdevelopment of the site and matters raised by objectors.

17 At this point I will note that at the on-site hearing, the Court heard from a number of adjoining residents. Mr Coleman from No. 215 Fowler Road, the adjoining property, which has recently been redeveloped. By way of comment the Court can understand why residents raise concerns about retaining the foreshore and the visual character of the area as No. 215 is a rather unfortunate development in terms of the scarring of the landscape that has occurred. Mr Coleman was concerned about the impact of the proposed development in terms of his privacy and views. The Court took an inspection of his property and advised at the on-site hearing that it considered that the proposal did not unreasonably interfere with his views which are most expansive and certainly the development did not contravene the concept of view sharing and that his privacy is not unreasonably impacted either.

18 Mrs Hill, on behalf of her son, gave evidence at the on-site hearing and there was general concern about the impact of the proposed development when viewed from the waterway and the impact on the foreshore area. Ms Lewis from No. 27-30 Griffin Parade, is concerned about the number of storeys and Council's controls and the impact on the foreshore and her concerns were reiterated by Mr Jackson and Ms Forbes. Ms Perry gave evidence to the Court when we resumed earlier this week with respect to the amended plans. She is concerned about the green web or the vegetation in particular along the foreshore and the impact of the proposed built form on the foreshore. Mr Hill also gave evidence to the Court and reiterated such concerns.

19 The development application was amended from the time we met on site in terms of the lowering of the pool such that it is 1.7 m above ground as opposed to 3.5 m previously. Other amendments include that there is not an overrun of the lift and there are other minor amendments contained within the plan. At the end of the day the Council maintains that the amendments do not resolve their concerns, which I identified earlier and that the proposed development is not one that meets Council's objectives in terms of its LEP and DCP. In particular when viewed from the foreshore and that there are alternative building areas on the site for consideration in a well designed building.

20 The Court must assess the development application before it and there are occasions when other areas on a site may be preferable in terms of ensuring that impacts on foreshore areas or other sensitive areas are minimised. However, I am not persuaded that this is an inappropriate location for the dwelling in terms of the occupants of the dwelling enjoying the amenities that the area offers but at the same time and importantly making a contribution to the character of the area in terms of the bushland and ensuring that the development 'fits in' with the character and is not obtrusive or unreasonably impacts on the foreshore or other properties.

21 The Court was assisted by sight lines drawn by Mr Hand and that were of great assistance when we met on site. It was also of assistance in terms of viewing the current plans and understanding the impact of the proposal on the foreshore and during the proceedings and it is apparent that the top level which contains bedroom 3 could be pulled back into the dwelling and this would also reduce the exceedence in the 7.2 m height restriction and while it would not eliminate it would reduce the exceedence in the number of storeys when one looks at the section.

22 It is agreed that a site of this steepness is one where there will be cut and fill and I am satisfied that there is not excessive cut and fill in terms of the proposed development. The Court also had the advantage of the extensive site inspection and it could be seen that there is an existing large Canary Island palm which is within the 6(a) area of the subject site which is to be retained on site. This will have an ameliorative an effect on visibility of the stone retaining walls that are proposed below the swimming pool. The Court expressed concern about the retaining walls and the imposition on the foreshore. The stone walls total approximately 5.7 m in height and this is on a relatively steep part of the site. There is however in my assessment sufficient area within the tiers to provide for plantings to ensure that the sandstone retaining walls are not a dominant element from the foreshore. More significantly the retaining walls will be set back from the foreshore. There is a 30 m 6(a) zone and then the retaining wall is on the boundary of the 6(a) land and the 2(e)(1) zone although these are within land owned by the applicant.

23 During the proceedings there was discussion about the landscaping of the foreshore area and indeed it is proposed that there be a deferred commencement to ensure that any landscaping plan consists of appropriate species and additional canopy trees, which will enhance the foreshore and will meet the objectives of Council's landscaping. That is that there are not only opportunities for tree retention but an enhancement of the canopy. In this particular part of the foreshore with the conditions as proposed and the appropriate execution of same and the carrying out of that development in accordance with the conditions will ensure that the development is consistent with the character of the area and the desired character of the area. The unfortunate example of the dwelling house next door and the impact on the foreshore would not be a reason for my refusal and I am satisfied the conditions proposed here will achieve an appropriate environmental outcome.

24 The conditions also must ensure that there is not development within the foreshore 6(a) area. The advantage of a 30 m 6(a) area must be taken into consideration when I look at this development application. The development application is one that does provide for a large home but it meets Council's FSR provision and it also meets the landscaped area. That in itself does not necessarily mean that approval should be granted but I am satisfied that this dwelling can sit comfortably within the landscape and lead to an improvement in terms of the enhancement of canopy trees within the area. As such there are conditions to ensure this occurs.

25 I have been assisted in my SEPP 1 objection assessment which also coincides with the merits assessments of this application I have considered the controls or the DCP. First of all in terms of the SEPP 1 I must go to the controls which are the objectives of the height limit. The objectives of the height limit are: "to achieve consistency in the scale of buildings within each zone t minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy, views and overshadowing. Relate the building form to the topography of the site and ensure all buildings in the residential zone maintain a maximum two storey appearance."

26 There was a great deal of discussion about the appearance of the building. It is noted that from the sections in the plans that there are some exceedences to the two-storey limit but in my overall assessment the objectives or purpose of the standard is satisfied and I do not consider this would warrant refusal of the application. The proposal generally complies especially with the relocation of bedroom 3 with the two storey requirement of Council. There will be an appearance of more two storeys when viewed from the water. However, I am satisfied with the setback and the appropriate landscaping that the built form will not be dominant when viewed from the waterway and when viewed from the opposite shore. It is generally recognised and not disputed that the Georges River is a regional resource and development should respect its amenity.

27 There are two areas where there is a slight exceedence of the 7.2 m height control. There is no exceedence of the maximum height limit of 9 m by the proposed development. In terms of the objectives I must be satisfied that the objectives of the proposed development does satisfy and while the proposal exceeds the 7.2 m the objectives in my assessment are satisfied by the proposed development. There will be a consistency in the scale of the building and the building form relates to the topography of the site. It is envisaged in Council's DCP that there be a stepping down of development in steep areas and whilst there is visibly more than two storey seen from the waterway, the stepping back ameliorates that impact and I am satisfied that the SEPP 1 objection is well founded in the circumstances of this case and the objects of the Act under s 5 are also met by the proposed development.

28 The most important consideration in the Court's assessment is the view of the dwelling from the foreshore to ensure that it is not a dwelling that creates unreasonable bulk in terms of being viewed from the foreshore and sits within a landscaped setting. I am satisfied that the proposal and the setbacks will allow for the development to be consistent with the LEP objectives of residential development and the zone objectives as I cited earlier and I am also satisfied that the proposal meets the overall objectives and intent of the DCP.

29 The deferred commencement condition has been proposed to ensure that the plans are amended prior to any commencement of the approval such that there is certainty in the process such that the roof form will be amended to be consistent with the angle of the roof over the other portions of the dwelling and the setting back of the third bedroom will also assist in ameliorating the impact when viewed from the water and reduce the bulk of the building.

30 The Court in assessing the retaining walls, which was the other issue of major concern, has assessed this in terms of the setback from the foreshore and the opportunity that this will provide in terms of landscaping and the condition has been amended such that the amended landscape plan must provide for plantings within the 6(a) area to ameliorate the sandstone walls that are proposed in the terracing of the site.

31 It was submitted on behalf of the applicant that on a site such as this one could never achieve a two storey appearance and that may be the case but it is important that that two storey appearance, while it may be exceeded, does not then dominate the foreshore. I am satisfied that the design of this building with the stepping back and the roof design will in fact ameliorate the impact and it will not appear as an over bulky building or excessive in terms of scale. The swimming pool has also been lowered to ensure that there is a better fit with the landform.

32 In my assessment, the proposal has been moderated to more carefully respect Council's controls and the objectives and the SEPP 1 objection in terms of the height exceedence of 7.2 m is not excessive and the SEPP 1 objection should be upheld.

33 There is also a condition proposed that in the event that any proposed canopy trees do not survive they are to be replaced and maintained and there is also a condition which has been drafted by the Council to ensure that the foreshore area is not impacted by the construction of the proposed dwelling as could be seen by the construction of the proposed dwelling adjoining the subject site.

34 Therefore on the basis of my assessment above the formal orders of the Court are: (1) The appeal in respect of the property known as No. 5-7 Griffin Parade, Illawong, is generally upheld. (2) The development application submitted to Sutherland Shire Council as amended is granted a 'deferred commencement' consent subject to the conditions as contained in annexure A. (3) The exhibits are returned except for D, E, 2 and 3. (4) The Council approved plans referred to in the deferred commencement conditions are to be forwarded to the Court for its records. (5) The Court notes the agreement between the parties that the applicant is to pay the respondent the amount of $3200.00 incurred for amended plans.

      J S Murrell
      Commissioner of the Court
      Ljr/rjs

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.