Evenden v Pittwater Council

CASES CITED: Tenacity v Warringah Council [2004] NSWLEC 140 Pafburn v North Sydney Council [2005] NSWLEC 444

APPLICANT Mr A Sattler (Solicitor) SOLICITOR Sattler & Associates LEGAL REPRESENTATIVES:

RESPONDENT Ms S Puckeridge (Solicitor) SOLICITOR Mallesons Stephen Jacques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Background 1 This appeal was lodged against council's refusal of a development application for the erection of a 1.8m high by 6.2m long fence adjacent to the rear portion of 90 George Street, Avalon. The applicant requires this fence in order to achieve a satisfactory level of privacy to this part of the garden area of the property.

2 As the property is situated on the Pittwater waterfrontage, the proposed fence would restrict views from other neighbouring properties. Consequently the issues concern the loss of visual amenity and the fence is out of character with the area. The site 3 The site contains a 2-storey dwelling, a detached single storey outbuilding, decks, swimming pool and a sandstone seawall along the MHWM. It is located on the north-eastern side of George Street in a strip of residential houses. Immediately to the south is a single storey dwelling No. 88. To the north is Pittwater Waterway.

4 The surrounding area comprises low density dwellings that are oriented with attractive easterly/northerly aspects towards the waterway. Further to the east and south are mangrove areas. Planning controls 5 The following controls apply: o Pittwater LEP 1993; under which the land is zoned Residential 2(a) (Residential A), "Area 1" under the Dual Occupancy Control and it is located within the Foreshore Scenic Protection Area. o State Environmental Planning Policy 71 - Coastal Protection (SEPP 71). o Pittwater 21 DCP - Amendment 3, adopted 4 February 2008, in force from 18 February 2008 until 28 November 2008. It contains relevant controls on: o Wave action and tidal inundation. o Habitat category 2. o C1.3 View Sharing. The evidence 6 Detailed evidence was presented by Mr M Edwards, council planner and Mr D Fish consulting planner for the applicant. Other objections were presented by neighbours, including the owners of the adjoining No 88 George Street.

7 At the on-site hearing there was the opportunity of assessing the location of the proposed fence and undertaking view impact assessments from the neighbouring properties. It is obvious that the living areas and primary open space areas on the subject property have a favourable northerly orientation, towards Pittwater.

8 The location of the proposed fence is along the southern boundary of the property, which is adjacent to a detached entertainment/living room that is directly connected to a large terrace with north orientation. The fence is to screen the existing garden area and clothes line. In this area, the entertainment room is setback approximately 9m from the seawall. This indicated on title plan 1.

9 The property owners from No 88 would be most affected by the fence. According to their objection, they renovated their house to provide a large open plan, with a partially open area at the rear of the house, to enjoy the views of Careel Bay, Pittwater and the distant National Park. They do not consider the proposed fence results in a reasonable application of the view sharing principles.

10 The view sharing controls are contained in C1.3 of the 21 DCP. It provides for: Outcomes A reasonable sharing of views amongst dwellings…

Controls All new development is to be designed to achieve a reasonable sharing of views available from surrounding and nearby properties. The proposal must demonstrate that view sharing is achieved through the application of the Land and Environment Court's planning principles for view sharing. Where a view may be obstructed, built structures within the setback areas are to maximise visual access through the structure e.g. by the provision of an open structure or transparent building materials . 11 The view sharing principles were stated in the matter of Tenacity v Warringah Council [2004] NSWLEC 140 and they basically provide for: o An assessment of the value of views to be affected by reference to their nature, extent and completeness. o A consideration of how views are obtained and what part of the property the views are obtained from. o A qualitative assessment of the extent of the impact in terms of severity, particularly as to whether the impact is either negligible, minor, moderate, severe or devastating. o An assessment of the reasonableness of the proposal that is causing the impact particularly in terms of compliance with the applicable planning controls and whether a different or complying design might produce a better result.

12 Mr Fish undertook a view assessment on the basis of this principle and found that: o Parts of the surrounding properties have highly valued water views and secondary land views. The proposal maintains the range of views enjoyed from these surrounding properties due to its siting, height & location and its open design. These views do not contain 'iconic' elements as described in the judgement; nevertheless they are extensive and outstanding `whole' views which include the interface between the land and the water. The height, location and design of the fence ensures that unobstructed views will be maintained from all surrounding properties to the majority of the view currently available. ( see further comment below) o Views from the surrounding buildings appear to be primarily obtained from living / lounge rooms, although it appears that some views may be obtained from bedrooms, bathrooms, kitchens and certainly from balconies and terraces, where these are provided. Due to site topography and the various building setbacks, it is likely that these views could be obtained in both sitting and standing positions and again due to the height, location & design of the fence and the topography of the area, most of these views are unaffected. The property most affected would be the rear portion of No.88 George St, which adjoins the development site to the south. The dwelling appears to have an open floor plan layout and views appear to be available from the living / lounge room and kitchen. It is estimated that this would be a 180 degree view extending from the mangroves to the south, the water and foreshore on the eastern side of Careel Bay, extending to Sand Point at Palm Beach and includes the water/ land interface of the western escarpment of Ku-ring-gai Chase National Park. Some of the northern / north western view to the National Park is obtained over the rear yard of the development site and whilst the judgement suggests that the expectation to retain site and sitting views are often unrealistic, due to the relative height, location and open design of the proposed fence, most of the existing side view will be unaffected. In this regard we estimate that the see-thru fence would obstruct less than 5% of the existing water and foreshore views available in both a sitting and standing position at No.88 George St and significantly less when assessed at any other surrounding property. As indicated on the survey submitted with the application, the 2 decks at the rear of No.88 George St have an RL of 2.03m and 1.95m, the proposed fence would have an RL of between 3.22m and 3.1 m. Applying the usual viewing height in a sitting position, ie, 1.2m and in a standing position, 1.5m, it will be possible to view over the fence in both a sitting and standing position on the covered deck which appears to be the primary outdoor sitting / entertainment area, whereas sitting views on the smaller open deck, which is situated closer to the foreshore will be partially obscured by the fence however, standing views will be unaffected. o Given the extensive water and foreshore views outlined above and the likely view loss assessment, we are able to conclude that the potential view loss can only be qualitatively assessed as 'negligible' or 'minor' under the parameters established by the Court's planning principle. o In relation to the reasonableness of the proposal, it is noted that the fence height, location and see-thru design comply with all of the prerequisites of the DCP.

13 Consequently Mr Fish considers that the proposal is reasonable in terms of satisfying the Tenacity principle.

14 An associated concern is the specification for the proposed fence. Section D 1.16 of the DCP contains the controls for fences in the designated Flora and Fauna Areas. As the property is within such area and the Avalon Beach Locality, any fence is required to satisfy the desired future character provisions. This includes: d. Fencing adjoining Pittwater Waterway Fences are to be setback 3 metres from the property boundary adjacent to the waterway, and shall have a maximum height of 1.8 metres. Fences are to be constructed of open, see-through, dark-coloured materials. Landscaping is to screen the fence on the foreshore side.

Conclusion 15 Having considered the evidence and undertaken a view, I do not consider that the fence as proposed demonstrates reasonable satisfaction of the Tenacity principle to merit consent.

16 The application of the Tenacity principle requires the input of subjective judgements from the various points of view impact. My following assessment is primarily based on the impacts to the residents of No88, but I note there are other properties further to the south that have their views of Careel Bay impacted on. o There are presently attractive easterly and northerly views of Careel Bay available from the rear living areas of No 88. However I accept the owners concern that the partially oblique, northerly views of Careel Bay have a special attraction with the view of the boat moorings. o These views are available from the rear yard area of No 88, as well as the living rooms of the house and areas on the outdoor entertaining terrace and from the sun-room. o I consider the views towards the boat moorings and associated activity has particular appeal, as compared to the general water views. In my assessment, the loss of this component would have a severe impact on No 88, relative to the general open waterway and mangroves view. o Based on the evidence presented, the desire for this 6.2m fence is to provide a higher level of privacy to this section of the where the clothes line exists. But I note that because the proposed fence is in the FSPA, then any fence is restricted to a maximum height of 1.8m and should be of a see-through specification. Under these circumstances, I consider an alternate design should result in a more reasonable outcome in terms of the current controls and the view sharing principle.

17 As I have noted, I consider it reasonable for some compromise of the fencing specification to retain some views towards the Careel Bay moorings from the rear entertaining area of No 88. It seems to me that this can be achieved by reducing the length and height of the fence to a maximum of 1.4m above the natural ground level of No 88. This allows a reasonable degree of view sharing. Whilst the controls allow a fence height of 1.8m, this is the maximum height and it is likely that in some circumstances, such as the current matter, that the maximum height may not be reasonable.

18 Taking into account that any fence in this flora and fauna area is also required to have a degree of "openness", both at the base and through its intermediate slats, I think that the degree of privacy sought by the applicant is unreasonable in this predominantly open foreshore area. It is apparent that the subject property enjoys extensive private, north-facing, primary open space areas, including the pool area, apart from the subject 9m long southern boundary area.

19 It was estimated that this primary area represents approximately 85% of the open spaces area on the property. Consequently, the remaining secondary area, where the clothesline is located represents the remaining 15%. In terms of Tenacity, it seems a somewhat unreasonable expectation to effectively fortify this remaining 15%, causing a considerable view loss.

20 The other issue concerns the compatibility of the fence with the character of the area, as stipulated in Section A4.1 and D1.16 of the DCP. From my observations of the site and neighbouring properties adjacent to the waterfront, this area is predominantly open. Whilst there are some older type fences adjoining the waterfront, they are of a lower height in the order of 1.2m and post and wire specification that allows unobstructed viewing.

21 Considering that the proposed fence is to be erected along the most visually prominent common boundary as viewed from the waterway, I do not consider the 1.8m high paling fence is consistent with the desired future character objectives to generally conserve the natural landscape and enhance the waterfront areas.

22 Insofar as reference was also made to the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444, this deals with the necessity of the proposed development. In that matter the Senior Commissioner Roseth dealt with this matter on the following basis: Planning principle: criteria for assessing impact on neighbouring properties. 26. The following questions are relevant to the assessment of impacts on neighbouring properties: o How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained? o How necessary and/or reasonable is the proposal causing the impact? o How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? o Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours? o Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 23 Reference to the foregoing principles allows consideration of alternate, more sympathetic designs. In this case, I am satisfied that a reasonable privacy fence, consistent with the intent of the development controls would have a specification of: .1) 0m (seawall) - 3m; no structure. .2) 3m - 6.1m; maximum fence height of 1.2m. .3) 6.1m - existing fence (approx 3.1m), maximum height of 1.4m from natural ground level in No 88. .4) The fence to be of an open nature specification as required by the DCP.

Court orders 24 The Court orders: 1 The appeal is upheld. 2 Consent is granted to DA No NO557/08 for the construction of a timber fence adjacent to the Pittwater Waterway at 90 George Street, Avalon in accordance with conditions in Annexure A. 3 The exhibits may be returned except for 1, 3, A and C.

      R Hussey
      Commissioner of the Court
      ljr

Annexure 'A' Conditions of Consent Evenden v Pittwater Council

This consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate. Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development. A. Prescribed Conditions:

1. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force. 1A. The approved fence shall comply to the following specifications: .1) 0m (seawall) - 3m; no structure. .2) 3m - 6.1m; maximum fence height of 1.2m. .3) 6.1m - existing fence (approx 3.1m), maximum height of 1.4m from natural ground level in No 88. .4) The fence to be of an open nature specification as required by the DCP.
2. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house, and c. stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
3. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: a. in the case of work for which a principal contractor is required to be appointed: i. the name and licence number of the principal contractor, and ii. the name of the insurer by which the work is insured under Part 6 of that Act. b. in the case of work to be done by an owner-builder: i. the name of the owner-builder, and ii. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.
4. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information.
5. The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary. B. Matters to be incorporated into the development and maintained over the life of the development:
6. There shall be no damage to intertidal habitats including rocky shores, seagrass beds, salt marshes or mangroves.
7. The fence shall have a maximum height of no more than 1.4m above the natural ground level at No. 88 George Street. The fence shall be constructed of open, see-through and dark- coloured materials and shall have an opening with minimum dimension of 150mm x 150mm where the proposed fence joins the existing masonry fence, to ensure that the fence is passable by Native Wildlife.
8. No building materials or other materials are to be placed on salt marsh or other foreshore vegetation. Sediment is not leave the site or enter areas of salt marsh or other foreshore vegetation.
9. No environmental weeds are to be planted on the site.
10. This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve. C. Matters to be satisfied prior to the issue of the Construction Certificate: Note: All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications / details cannot be accepted.
11. Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, satisfy all conditions shown in Part B above are to be submitted to the Principal Certifying Authority. D. Matters to be satisfied prior to the commencement of works and maintained during the works: Note: It is an offence to commence works prior to issue of a Construction Certificate.
12. Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction.
13. No works are to be carried out in Council's Road Reserve without the written approval of the Council.
14. No skip bins or materials are to be stored on Councils Road Reserve.
15. A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: - - The builder's name, builder's telephone contact number both during work hours and after hours. - That no works are to be carried out in Council's Road Reserve without the written approval of the Council. - That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Councils Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. - That no skip bins or materials are to be stored on Councils Road Reserve. - That the contact number for Pittwater Council for permits is 9970 1111.
16. A stamped copy of the approved plans is to be kept on the site at all times, during construction. E. Matters to be satisfied prior to the issue of Occupation Certificate: Note: Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works. Note: It is an offence to occupy the building or part thereof to which this consent relates prior to the issue of an Occupation Certificate.
17. An Occupation Certificate application stating that the development complies with the Development Consent and that a Construction Certificate has been issued must be obtained on completion of the construction work approved by this Development Consent.

R Hussey Commissioner of the Court ljr

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.