1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Sutherland Shire Council (the council) to refuse a development application to erect a shade structure at Lot 2 DP 385010, being No 144 Ewos Parade, Cronulla. The shade structure and its pole has been removed.
2 The on-site hearing afforded me the opportunity to inspect the land and view the proposed location of the shade structure from nearby properties in company with the parties. I heard from nearby residents.
3 I have concluded that if the shade structure were lowered by 320mm that it would be of a scale, satisfactory to its location. It would be less visually intrusive, if screened by a recently planted hedge on the land.
The land
4 The land is situated on the eastern side of Ewos Parade between Orient Avenue and Beach Street and is of irregular shape. It has a frontage of about 19.253m to Ewos Parade, a depth along the northern boundary of 24.803m, a north eastern (rear) boundary of 24.803m and a southern boundary of 33.874m before stepping in to the north by 1.549m along its remaining length of 18.288m with an area of 714.5m2. . The step in on the southern boundary results allows for a 1.549m private wide drainage reserve running east west. The land slopes gently from Ewos Parade to the south eastern corner. There is no significant vegetation within the subject land. The applicant has planted a hedge of Syzigium 'Southern Form' a type of Lilli Pilli near the boundary of the land in the vicinity of the proposed shade structure.
5 Erected on the land is a part single-storey and part two-storey dwelling. A brick cabana on a nil boundary setback is attached to the rear of the dwelling. An in-ground swimming pool, spa and surrounding paved area occupy a large part of the rear yard. Landscaping including a water feature and garden along the southern boundary encroaches into the drainage reserve.
6 The rear of the subject land adjoins the back yards of two properties with frontage to Orient Avenue and that of the adjoining property to the south. The subject land effectively adjoins the back yards of two properties fronting Beach Street, across the 1.5m wide drainage reserve. Erected on this adjoining land are single dwellings.
7 The locality is characterised by single-storey and two-storey dwelling houses of a variety of ages and styles. A two-storey commercial development with a shop-top housing component is located opposite the land in Ewos Parade. There are mature pine trees located within the road reserve.
Relevant planning controls
Sutherland Shire Local Environmental Plan 2006, (SSLEP2006)
8 The SSLEP2006 was gazetted on 15 November 2006 and commenced 29 November 2006, applies to the subject land. Under the provisions of the SSLEP2006 the land is within Zone 2 - Environmental Housing (Scenic Quality) and the proposal as ancillary to a dwelling house is permissible with consent. :
9 Under the SSLEP2006 cl 7(2)(b): any development application lodged before the commencement of this plan, but not finally determined before its commencement, is to be determined as if this had been exhibited… but not made.
10 Under the SSLEP2006 cl 8 establishes the application of SEPPs and REPs to the LEP. Clause 8(2) and (3) identifies the following circumstances in which SEPP 1 applies. The matters of relevance to this application are identified below:
(2) State Environmental Planning Policy No 1 - Development Standards (SEPP 1) does not apply to any provisions of this plan other than the provisions referred to in subclause (3).
(3) SEPP 1 applies to the following provisions of this plan in the same way as SEPP 1 applies to development standards:
(a) …
(b) Clause 36(3)-(9) (relating to the area of landscaping in connection with development for the purpose of buildings),
(c) …
(d) …
11 The objectives of zone 2 - Environmental Housing (Scenic Quality) are:
(1) Objectives of the Zone
(a) to allow development that complements the predominantly urban landscape setting of the zone, characterised by dwelling houses on single lots of land,
(b) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development,
(c) to allow development that is of a scale and nature that is consistent with the urban surroundings of the zone, while retaining or restoring natural features,
(d) to protect existing vegetation and other natural features of the zone and encourage appropriate bushland restoration,
(e) to minimise the risk to life, property and the environment by restricting the type, or level and intensity, of development on land that is subject to either natural or man-made hazards,
(f) to minimise the impacts of development in the vicinity of heritage items,
(g) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that retains or restores natural features, while allowing a sufficient area for building footprints, and
(h) to ensure sharing of waterfront views between occupiers and users of new and existing buildings.
12 Clause 33(2) of the SSLEP2006 contains the building height objectives:
(2) Objectives: The objectives of this clause are as follows:
(a) to ensure the scale of buildings:
(i) is consistent with the desired scale and character of the street and locality in which the buildings are located, and
(ii) complements any natural landscape setting of the buildings,
(b) to allow reasonable daylight access to all buildings and the public domain,
(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,
(e) to facilitate the provision of private open space for each dwelling, being private space that is useable and provides a reasonable level of privacy and access to sunlight.
19 Clause 33(3) and (4) of the SSLEP2006 relates to building height allowable in this zone.
(3) The consent authority must not consent to development for the purpose of a building unless it has considered the objectives of this clause.
(4) Height of building generally-default position:
A building must comply with each of the following:
(a) the building must not comprise more than 2 storeys,
(b) the building must not exceed the following:
(i) a height of 7.2 metres, as measured from ground level to any point on the uppermost ceiling in the building,
(ii) a height of 9 metres, as measured from ground level to the highest point of the roof of the building.
13 Clause 36(1) of SSLEP2006 establishes the landscaped area objectives.
The objectives of this clause are as follows:
(a) to ensure adequate opportunities for the retention or provision of vegetation that contributes to biodiversity,
(b) to ensure adequate opportunities for tree retention and tree planting so as to preserve and enhance the tree canopy of Sutherland Shire,
(c) to minimise urban run-off by maximising pervious areas on the sites of development,
(d) to ensure that the visual impact of development is minimised by appropriate landscaping and that the landscaping is maintained,
(e) to facilitate the provision of private open space for each dwelling, being private space that is useable and provides a reasonable level of privacy and access to sunlight.
14 Clause 36(3) of the SSLEP2006 establishes a sliding scale for the calculation of minimum landscaped area in the Environmental Housing (Scenic Quality) zone. Where the site is less than 850m2 the minimum landscaped area is "…AS x 0.45, where AS is the area of the site in square metres." Based on this calculation the minimum landscaped area on the subject site, which has a total area of 714.5m2, is 321.5m2.
15 The dictionary defines landscaped area as follows:
landscaped area, in relation to a site, means any area of the site that comprises bushland or is otherwise vegetated with gardens, lawns, shrubs or trees and does not include any area that is:
(a) paved or comprises a driveway, or
(b) occupied by a garbage storage area, swimming pool or any other building.
16 Clause 48 of SSLEP2006 establishes general urban design heads of consideration for residential buildings:
The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:
(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,
(b) the extent to which any proposed buildings are designed and will be constructed to:
(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and
(ii) contribute to the desired future character of the locality concerned,
(c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,
(d) the extent to which the natural environment will be retained or enhanced by the proposed development,
(e) the extent to which the proposed development will respond to the natural landform of the site of the development,
(f) the extent to which the proposed development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, and
(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.
17 Clause 49 of the SSLEP2006 establishes urban design heads of consideration for residential buildings.
The consent authority must not consent to development for the purpose of residential buildings unless it has considered the following matters that are of relevance to the development:
(a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,
(b) the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised,
(c) the extent to which the quality of the streetscape concerned will be improved by the development,
(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,
(e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised,
(f) the extent to which the residential building concerned integrates with a well-designed landscaped setting, and
(h) any opportunities for the provision of affordable housing.
Development Control Plan for Dwelling Houses in the 2(e) Residential Zones and Kurnell, (RDCP)
18 The RDCP was gazetted on 19 March 2001 and came into effect on 27 March 2001.
19 The purpose of the RDCP is contained in cl 2 as follows:
The foreshore areas of the Shire have both a local and regional significance. The foreshores are visible over a wide area, from both the waterway and from adjoining lands. This is a sensitive area and consequently, the right of individuals to develop these unique areas carries a responsibility to ensure that the visual and environmental quality of these areas is enhanced.
Therefore the plan aims to encourage the development of dwelling houses which are in harmony with the natural surrounding and which minimise the impact on the natural environment.