Gibson, P and Anor v Sutherland Shire Council

CASES CITED: Pafburn v North Sydney Council [2005] NSWLEC 444; Super Studio v Waverley Council [2004] NSWLEC 91

APPLICANT: Mr B O'Dowd, town planner and agent for Mr P Gibson, litigant in person SOLICITORS: LEGAL REPRESENTATIVES: N/A RESPONDENT: Mr C R Mathieson, Principal Environmental Lawyer, Sutherland Shire Council SOLICITORS: N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11169 of 2006 - Paul and Julie Gibson v Sutherland Shire Council

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.

20 Clause 9 deals with the overall objectives of the RDCP: The overall objectives of the Plan are that: 1. … 2. All development integrated into the site and natural surroundings. 3. … 4. Sufficient endemic landscaping at a suitable scale to soften the appearance of the development and screen it when viewed from adjoining properties and the waterways. 5. The obstruction of water views is minimised and the impact on amenity of adjoining properties is minimised. 6. … 7. … 21 Clause 10 of the RDCP deals with design and siting of dwellings. Objectives: 2. that dwellings be designed with regard to the site conditions, to minimise the impact on the landform and the adjacent waterway; 3. that dwellings blend into the natural surroundings; 4. that dwelling designs have regard to preserving existing views; and 5. that dwelling designs have regard to the impact on the amenity of the adjoining development and surrounding properties. Controls:

1. the preservation of existing trees;
2. a minimum of cut and fill on the site;
3. the avoidance of elevated platforms, decks or stilts; and
4. the choice of materials and colours to blend with the natural surroundings. 22 Clause 10.5 relates to setbacks to side boundaries Objectives:
5. Separation between dwellings for privacy and to enable areas for landscaping;
6. Views to the water between dwellings, from public areas and other dwellings, where possible should be provided or retained. Controls:
7. A minimum setback of 1.5 m to dwellings and ancillary buildings. The setback is measured at right angles to the boundary;
8. Variations may be considered if there will be no adverse impact on the adjoining property and if the objectives are achieved, for example: i) An open carport on a nil boundary setback; ii) Detached garages on a nil boundary setback where the topography enables views to be maintained. Sutherland Shire Local Environmental Plan 2000, (SSLEP2000) 23 Under the provisions of the SSLEP2000, the land was zoned 2(e1) Residential and is within a Foreshore Scenic Protection Area and the proposal is permissible with consent. The proposal and its history 24 Development application No DA05/0354 was lodged with the respondent council on 5 December 2006 to erect a shade structure on the land; by Makmax, architectural membranes and innovative solutions. 25 The shade structure has an umbrella that measures 4.550m x 3.180m covering around 12.7m2, [Note: Exhibit G]. The overall height of the structure if erected to the manufacturer's specification would be around 3.79m and if lowered, as proposed, would be 3.47m high. The under-canopy edge clearance according to the manufacturer's specification would be 2.25m and if lowered by 320mm would be 1.90m allowing for the thickness of paving. The lowered support pole would be around 3.4m in height measured to the bend and would be bolted to a reinforced concrete pad footing according to the manufacturers detail. Notification 26 On 5 April 2005 the application was notified to nearby owners and occupants and the council received two objections from adjoining neighbours in Orient Avenue. 27 On 10 May 2005 the council wrote to the applicant requiring an amendment to the plan to locate the proposed structure 1.5 metres from the side boundary. 28 On 12 May 2005 the applicant requested the council to hold the application in abeyance whilst relocation options were considered. The council received no further advice from the applicant. 29 On 16 August 2005 the council's Independent Hearing and Advisory Panel (IHAP) endorsed the assessment staff recommendation: That Development Application No. 05/0354 for Ancillary Development to a Dwelling House (Shade Structure) at Lot 2 DP385010 (No 144) Ewos Parade, Cronulla be refused for the following reasons:
9. The application is considered unacceptable pursuant to the provisions of s. 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 in that the proposal fails to satisfy objective (d) of Clause 30 of the Sutherland Shire Local Environmental Plan 2000 in that the proposed development will adversely impact adjoining properties in terms of size, bulk and height of the shade structure.
10. The application is considered unacceptable pursuant to the provisions Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979, as it is considered that the proposed development is excessive in height, bulk and scale and would adversely impact upon the amenity of the locality.
11. The application is considered unacceptable pursuant to the provisions Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, as it is considered that the proposal is inconsistent with the provisions of Sutherland Shire Council's Development Control Plan for Dwelling Houses in 2(e) Residential Zones and Kurnell with respect to Section 10.5 - Setbacks to Side Boundaries.
12. The application is considered unacceptable pursuant to the provisions Section 79C(1)(d) of the Environmental Planning and Assessment Act 1979, as it is considered that having regard for public submissions, the development is unsuitable with respect to its impact on visual amenity. 30 On 5 September 2005 the council resolved: That consideration of Development Application No. 05/0354 for Ancillary Development to a Dwelling House (Shade Structure) at Lot 2 DP385010 (No. 144) Ewos Parade, Cronulla, be deferred to allow for mediation to take place between the Applicant and the Objectors. 31 On 27 October 2005 mediation was conducted and no agreement was reached. The council's decision 32 By notice dated 6 December 2005 the council refused the application for the following reasons:
13. The application is considered unacceptable pursuant to the provisions of s 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 in that the proposal fails to satisfy objective (d) of Clause 30 of the Sutherland Shire Local Environmental Plan 2000 in that the proposed development will adversely impact adjoining properties in terms of size, bulk and height of the shade structure.
14. The application is considered unacceptable pursuant to the provisions of Section 79C (1) (b) of the Environmental Planning and Assessment Act 1979, as it is considered that the proposed development is excessive in height, bulk and scale and would adversely impact upon the amenity of the locality.
15. The application is considered unacceptable pursuant to the provisions of Section 79C (1) (a) (iii) of the Environmental Planning and Assessment Act 1979, as it is considered that the proposal is inconsistent with the provisions of Sutherland Shire Council's Development Control Plan for Dwelling Houses in 2(e) Residential Zones and Kurnell with respect to Section 10.5 - Setbacks to Side Boundaries.
16. The application is considered unacceptable pursuant to the provisions of Section 79C (1) (d) of the Environmental Planning and Assessment Act 1979, as it is considered that having regard for public submissions, the development is unsuitable with respect to its impact on visual amenity. The hearing 33 The appeal was filed on 5 December 2006 and is within time. 34 At the hearing the court received evidence on behalf of the respondent council from Mr B Harris, Environmental Assessment Officer, Sutherland Shire Council. On behalf of the council residents gave evidence: · Mr and Mrs Ian Nichol, residents of No 12 Orient Avenue; and · Mr and Mrs Brian James, residents of No 10 Orient Avenue. 35 On behalf of the applicant, Mr and Mrs Paul Gibson gave evidence. 36 Ms D A Pinfold, Town Planner - Legal Services Branch of Sutherland Shire Council prepared the statement of basic facts dated January 2007. The issues 37 On 19 January 2007, the council filed a statement of issues. AMENITY IMPACTS ON NEIGHBOURS
17. The development will be visually dominant and result in unacceptable visual impacts on properties 10 and 12 Orient Avenue due to the height, size, bulk and scale of the proposed shade structure, together with its close proximity to the boundary. Further, the proposal does not satisfy relevant planning requirements. Particulars: i. Special Consideration (d) in clause 30 of Sutherland Shire Local Environmental Plan 2000. ii. The 1.5m setback requirement in Control 1 in clause 10.5 of the Development Control Plan for Dwelling Houses in 2(e) Residential Zones and Kurnell. RETROSPECTIVE APPROVAL
18. The support pole has already been installed and cannot receive retrospective development consent. OBJECTIONS
19. Matters raised by objectors including: · Visual impact due to the height and size of the structure and its close proximity to adjoining properties. · Glare impacts from reflected sunlight off the proposed structure. · Amenity impacts arising from light spill/glare into adjoining yards from the internal illumination of the proposed structure at night. · Loss of views.

38 The visual impact of the proposed shade structure emerged as the salient issue. The evidence and findings 39 During the course of the hearing the applicant agreed to lower the proposed shade structure by shortening the support pole by around 320mm. The object of this was to ensure that the height of the edge of the canopy would be reduced to 1.9m when measured vertically above the finished ground level. This shortening of the support pole had the effect of lowering the shade structure so that it would better conform to the plans in Exhibit F prepared by site design landscape architects. 40 Mr O'Dowd, town planning and agent for the applicant amended the drawings in Exhibit F to confirm the height of the proposal. A condition in respect of height was also proposed and accepted by the parties. The nearby residents considered this change to the plans: 41 Mr Ian Nichol, resident of No 12 Orient Avenue referred to his objection [Note: Exhibit 1, p 57] and commented that his: …main concern is that the view to the south is compromised by the [proposed] gazebo. It would be powered and lit at night. It would be permanent. The applicants do have lighting and [at night] that is turned on quite a bit. [The proposal] will impact on our privacy. The applicant's property is on our boundary. [The applicants have made] modifications to their home. Unfortunately, we feel that those changes to their property do affect our lifestyle and we feel we are looked at all the time. The day we saw the umbrella go up we were shocked and we objected. Since then we have been to mediation and the trees have been discussed. Those trees have been put in. Our neighbours [at No 10 Orient Avenue] have more impact on them as their living room is right there. [The Commissioner] can look at the effect on southern view. Value of house lowered as a result of the erection of the shade structure. The pole has been in the ground for more than two years and was removed last Saturday. [We felt] there must be a ploy. We have a photograph of the umbrella when erected. 42 Mrs Celia Nichol, No 12 Orient Avenue commented: Shade structure is there. All the amenity [for the applicants is] on boundary in order to reduce impact on their view. [As a result] little regard [was paid] to the neighbours' amenity. The lighting remains on until 11.00pm. No reason would have lighting on in this as well. It will glow in the dark being of white material. There will be reflection [during the day] and a glow at night that will impact on us. Trees have not blocked out the view [of the shade structure] from our property and so has not changed our concerns. Photo taken from back yard not from kitchen or dwelling. In answer to Mr Mathieson Mrs Nichol pointed out that the trees have not blocked the view of the structure as they, the applicants, cant grow trees where the BBQ is. 43 Mr Brian Ross James, of No 10 Orient Avenue commented: Major reason [for our objection] is proximity and size. The way the [residential] blocks are set out, our major room is very close to here. That is the family room. We spend a lot of time outside. We have 4 children and 11 grandchildren who visit regularly. Could not believe the impact that is has. Our builder said it could not comply. Building inspector said that it was too big. We had to put up with the pole for two years. [This was] not aesthetically nice at all. The trees went in and that has made a beneficial difference. The top part of the pole goes right up and then drops onto the canopy. The appearance of the arm is commercial and the structure would be sitting up there. He showed photographs that give: some idea of the impact of the pole with regard to the trees. Image of the pole is the major concern. The way the houses are, we have to live close together. Impact on our [property is the greater] because things are put right on our border. He would have no problem with something like this, referring to the existing umbrella. However, the proposal spoils our outlook. 44 Mrs Rose James, No 10 endorsed those comments. 45 Mr Mathieson sought clarification and was told by Mr James that the planting of the trees was beneficial. The trees have helped and the trees did start covering the pole, but did not get to the top of the pole. Mr Mathieson submitted that if the trees were not there, as the members of IHAP have said the impact would be greater. 46 Mr Mathieson submitted that in relation to the planning principle in Super Studio v Waverley Council [2004] NSWLEC 91 re privacy and the weight to be given by the consent authority to screening by vegetation. He submitted that that case would have equal application here. He also referred to the second principle of Super Studio, 6. …where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens.

47 Mr Mathieson submitted, "If landscaping were not there, it [the proposal] would be unreasonable." If the landscaping were not there, he submitted on the grounds of visual impact, serious concerns would be held for the shade structure even if it were lowered. He described the design as a "…hit and miss exercise". He submitted that the hedge is formal in appearance and as it is not planted in the ground its health and vigour in the long term is not guaranteed. If structure would not otherwise satisfactory it should not be approved, he submitted. The landscaping might be used to improve an otherwise reasonable design and should not be relied upon. He submitted that these are the concerns of the neighbours and the council. He was concerned that attempting to address the concerns of the residents and the council by condition was fraught with difficulty. 48 His final submission was whether there is an alternative location. [Note: Pafburn v North Sydney Council [2005] NSWLEC 444]. 49 Mr O'Dowd submitted that the remaining issue is the height, size, bulk and scale of the proposed shade structure. He submitted that the applicant had satisfactorily met that issue and was prepared to lower the structure to reduce its impact. The landscaping provided a landscaped backdrop for the outdoor activities of the Gibson family. He further submitted that due to the limited site area alternative locations for a shade structure are not possible and the proposal "…is reasonable". 50 I have carefully analysed the evidence and submissions and have concluded that if the shade structure were erected as shown on the landscaping plans in Exhibit F and lowered by 320mm to give a height to the underside of the fabric edge of 1.9m it would be acceptable. I am satisfied that it would not be so visually intrusive as to warrant refusal. 51 The planting of a hedge of Syzigium has undoubtedly improved the view from both Nos 10 and 12 Orient Avenue. The hedge would, if allowed to reach a height of 4m above the terrace level, largely screen from view from nearby properties, the proposed support pole and the shade structure. 52 Super Studio requires the planning assessment of a proposal assuming that landscaping is not relied upon. I am satisfied that even in the absence of the Syzigium hedge screen the lowered shade structure, would now be of a scale so as to not warrant refusal. All agreed that the hedge improved the proposal and I accept that. 53 For the above reasons, the appeal is upheld. Conditions 54 The conditions are those in Exhibit 2 as amended during the hearing. I have added two conditions that relate to required design changes. 2(a). Height of shade structure The height of the proposed shade structure shall be reduced so that the perimeter edge of the umbrella shall be no higher than 1.9 metres above the finished ground level and the maximum height of the structure shall not exceed a level of 20.72m AHD. 2(b). Landscaping Landscaping in the form of a Syzigium hedge shall be provided between the proposed structure and the adjoining property boundary as shown on the landscaping plan. Such landscaping shall be maintained at a maximum height of 4m above ground level for the life of the proposed shade structure. Orders 55 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No DA05/0354 lodged with the respondent council on 5 December 2006 to erect shade structure at Lot 2, DP 385010, being No 144 Ewos Parade, Cronulla, is approved subject to Conditions 1 to 10 in Annexure A.

3. The exhibits except for Exhibits A, C, F, G, H, 1 and 2 are returned.

S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

17/04/2007 - The end number of 10 added to Order 2 - Paragraph(s) 55

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