Lambert v Sutherland Shire Council

Land and Environment Court (NSW)|2005-11-17

Introduction 1 This is an appeal against the refusal by Sutherland Shire Council (the council) of DA 04/1822 for the subdivision of an existing lot into two lots and erection of a new dwelling on the new vacant lot at 214 Caringbah Rd. Caringbah (the site).

2 The hearing was conducted as an On Site Hearing on 9 September 2005. The site 3 The site is Lot 5 in DP 8560. It is generally rectangular in shape with a frontage of 18.815 metres to Caringbah Rd (northern boundary), a frontage of 62.8 metres to Baliga Ave (western boundary) and a width of 22.885 metres along the southern boundary, giving a total site area of 1367.8 square metres.

4 The land falls from the eastern boundary to its western frontage at Baliga Ave. There is a 2 metre change in level at the northern end of the site and a 6 metre change in level at the southern end.

5 A 2 storey brick and weatherboard dwelling house and in ground pool are located on the site together with a number of mature trees.

6 The locality is largely made up of the detached dwellings with those dwellings on the opposite side and western side of Baliga Ave located below street level with carports and garages near the street frontage. There are few dwellings on the eastern side of Baliga Ave with a school occupying much of the street frontage. The proposal 7 The proposal provides for the Torrens Title subdivision of the site to provide two lots. Lot A has an area of 817.56 square metres and Lot B has an area of 550.2 for square metres. The existing dwelling is to be retained on Lot A and the existing the swimming pool is to be retained on Lot B together with a new dwelling. The proposed dwelling is to be located towards the eastern or rear boundary and a carport constructed around 5 metres from the street alignment.

8 During the On Site Hearing, the applicant was granted leave for an adjournment to amend the plans for the proposed dwelling while maintaining the same subdivision layout. Directions were given for the preparation of the amended plans and the readvertising and assessment by the council. The amended plans were the subject of further evidence on 10 November 2005.

9 The amended plans provided for the reduction in overall height by 1 metre, a reduction its overall length and the removal of the carport from near the street alignment. Car parking facilities are now provided under the proposed dwelling.

Relevant planning controls 10 The site is zoned 2(a1) Residential under Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The proposed use is permissible with consent within this zone. The site is also within a Foreshore Scenic Protection Area under LEP 2000.

11 Objectives for the 2(a1) Residential the zone are provided within the zoning table. Clause 19 provides requirements for development within a Foreshore Scenic Protection Area. Clause 30 provides specific requirements when assessing the impact of residential land uses within residential zones and. Clause 32 provides requirements for the retention of bush land. Clause 36 provides requirements for landscaped area. Clause 38 provides minimum lot sizes within residential zones.

12 Dwelling Houses in 2(a1). 2(a2) and 2(b) Residential Zones Development Control Plan (the Dwelling House DCP) applies in relation to front and side setbacks.

13 Residential Subdivision Development Control Plan (the Subdivision DCP) applies in relation to environmental impact and reiterates other controls in LEP 2000 and the Dwelling House DCP. 14 Residential Fencing Development Control Plan (the Fencing DCP) applies to the street fencing.

15 The site is also subject to Draft Sutherland Shire Local Environmental Plan 2004 (the draft plan) although the draft plan is to be readvertised following the consideration by the council of an earlier exhibition. The draft plan provides for the subdivision and the erection of a dwelling house as a permissible use, with consent.

The issues 16 The council filed a Statement of Issues containing 10 issues. A number of the issues were addressed by the applicant through amendments and were not pressed by the council. These were landscaped area (Issue 1), height (Issue 3), impact on trees (Issue 4), private open space (Issue 6) and Building Code of Australia requirements (Issue 8). The remaining issues can be conveniently grouped into the following main areas: 1) whether the State Environmental Planning Policy No 1 - Development Standards (SEPP 1) objection to the variation in the allotment depth development standard is well founded (Issue 2), 3) whether the proposed development adversely impacts on the character, streetscape and subdivision pattern of the locality having regard to the shape and size of Lot B, the proposed fencing and the location of the proposed dwelling (Issue 5), 4) whether the proposed development creates unacceptable amenity impacts and particularly impacts on views from the adjoining property (Issues 7, 9 and 10). The evidence 17 Mr Benjamin Black, a town planner employed by the council provided evidence for the council. Local residents Mr and Mrs Gardiner of 2 Baliga Ave and Mr Garside of 212 Caringbah Rd. provided their evidence on site and also made submissions opposing the amended plans.

18 Mr David Crane, a town planner provided evidence for the applicant. Allotment depth 19 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 20 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 21 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

22 Clause 38(3) of LEP 2000 requires a minimum allotment depth of 27 metres for a newly created allotment. Lot B provides for a depth of 22.885 metres.

23 The objectives of the minimum allotment dimension requirement are: (a) to require sufficient allotment widths and depth to enable some variations in the design for development, and (b) to ensure of sites have adequate widths and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties 24 Mr Crane provided an SEPP 1 objection to show why strict compliance with the development standard is unreasonable and unnecessary in this instance. He states that notwithstanding the departure from the allotment depth requirement, Lot B satisfies the LEP 2000 requirements for width and area. Additionally, the proposed dwelling on Lot B meets the council requirements for front, side and rear boundary setbacks, building height, floor space ratio, private open space, on-site parking, landscaped area and driveway access.

25 Also, the depth of proposed Lot B does not have any bearing on the visual relationship and presentation of the lot and new dwelling to the street, nor does it have any adverse implications for the amenity of surrounding properties.

26 Mr Black states that it is not unreasonable or unnecessary to insist on compliance with prescribed 27 metre minimum allotment depth development standard in this case. In his opinion, the proposed allotment depth results in an unacceptable streetscape appearance. He draws a distinction with the properties on the eastern side of Baliga Ave in terms of streetscape because of the different topography. Additionally, he states that the shape and size of proposed Lot B is uncharacteristic of other lots along the eastern side of Baliga Ave because the splay at the street frontage is necessary to satisfy the minimum area requirements.

27 On this issue I agree with Mr Crane. Mr Black's evidence on this issue is largely predicated on his view of the impact on the streetscape and while this is a valid basis to object to a development, Objective (b) appropriately relates generally to the ability to construct a dwelling considering " side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties". If the proposed development is considered against the matters in Objective (b) then the proposal is acceptable. It satisfies the requirements for front setback, building height, floor space ratio, on-site parking, landscaped area and driveway access. The Dwelling House DCP does not specify requirements for side or rear setbacks however the proposed setbacks are consistent with that anticipated in a residential area and considering the characteristics of the site. For the reasons set out later in the judgement, I find that the proposed development does not unacceptably impact on adjoining properties. 28 Consequently, I accept that strict compliance with the development standard would be inconsistent with the aims of SEPP 1 and would tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. It follows that strict compliance with the development standard is unreasonable and unnecessary in this instance and that the SEPP 1 objection is well founded.

Character, streetscape and subdivision pattern of the locality 29 The objectives of the 2(a1) zone seek to preserve the scale, amenity and general character of the area (Objective (a)) and maintain a streetscape characterised by detached one and two-storey residential buildings (Objective (b)). Clause 30 requires consideration to be given to the effect on the quality of the streetscape (cl 30(b)), the cumulative effect on the general character of the neighbourhood (cl 30(c)) and any adverse impacts on the natural and built environment (cl 30(f)).

30 Clause 11- Building Line to Streets of the Dwelling House DCP has objectives to minimise the visual impact of buildings on the street scene and to ensure buildings are compatible with and enhance the existing or planned street scene.

31 The Fencing DCP provides requirements for front fences. The primary objective is to ensure that the impact of fences on the streetscape is minimised and the existing natural landscaping is enhanced (cl 8.1.1). Visually solid fencing should be setback from the boundary (cl 8.1.4) however open-type timber or metal fences may be considered without any boundary setback subject to a design where visibility to the enclosed area is not substantially restricted (cl 8.1.5).

32 Mr Black states that the streetscape on the eastern side of Baliga Ave is the appropriate benchmark for measuring impacts on the existing and desired future character. In his assessment, there are number of elements in the proposal that are unacceptable. These are the setback relationship with adjoining properties, the uncharacteristic shape and size of proposed Lot B and the proposed boundary fencing along Baliga Ave. 33 Mr Crane comes to a different conclusion. He states that the proposed subdivision is compatible with the existing pattern in the locality by providing complying allotment sizes and widths that reflect those of surrounding properties. In his opinion, the depth of proposed Lot B does not have any bearing on the appearance in the streetscape. The proposed fencing, landscaping and pedestrian entry treatment will provide a more open presentation to the street frontage than currently exists and will improve the appearance of the site from the street while maintaining privacy to the existing swimming pool that is to be retained on Lot B.

34 With the benefit of the site view I agree with the evidence of Mr Crane on the issue of character, streetscape and subdivision pattern of the locality.

Each side of Baliga Ave has a different zoning and a different form of development resulting from the different topography. Notwithstanding this, the proposal sits comfortably with both adjoining dwellings in terms of street setback and building form even though the dwelling at 2 Baliga Ave is set back a considerable distance beyond the required 7.5 metre street setback. The proposed side setbacks are consistent with the existing dwelling at 2 Baliga Ave and significantly larger with the existing dwelling on the site. 35 Importantly, a significant streetscape concern of Mr Black was removed in the amended plans by deleting the carport near the street alignment and providing vehicle parking under the dwelling thereby providing an unconstrained setback (excluding the swimming pool) to Baliga Ave.

36 The proposed fencing along the Baliga Ave frontage is 1.5 metres high with 70 mm x 20 mm vertical timber battens spaced at 100 mm centres. I accept that this fencing addresses the Fencing DCP for fencing on the boundary in that visibility to the enclosed area is not substantially restricted.

37 I also find that the proposed splay at the Baliga Ave frontage of Lot B has little if any impact on the streetscape, even though it is not a feature of the surrounding subdivision pattern. Its existence is not likely to the readily noticed by persons other than those who have a specific knowledge of the site.

38 Overall, the subdivision and proposed dwelling is not out of place with the varied streetscape and character found in Baliga Ave. Considering those matters outlined in pars 29 to 31, there are no matters relating to character, streetscape and subdivision pattern of the locality that would warrant the refusal of the development application. Unacceptable amenity impacts 39 Mr and Mrs Gardiner raised concerns over the overshadowing of the entry area and front steps to their dwelling. Their concerns were addressed on-site with the benefit of shadow diagrams provided by the applicant. I did not understand Mr Black or Mr Crane to find that the impact of shadowing on this area of such concern as to warrant the amendment or refusal of the development application. I would occur with this conclusion.

40 The potential loss of views from Mr Garside's property was assessed on site. The amended plans provide for a lowering of the proposed dwelling and the establishment of a 6 metre wide view corridor adjoining Mr Garside's dwelling. Three sections were provided showing the potential view lines from Mr Garside's rear yard adjoining the proposed dwelling.

41 Clause 30(a) of LEP 2000 requires consideration to be given to the impact of views on adjoining development. In Tenacity Consulting v Waringah [2004] NSWLEC 140 a number of principles were established for assessing impacts on views. These are: + the assessment of views to be affected. + to consider from what part of the property the views are obtained + to assess the extent of the impact. + to assess the reasonableness of the proposal that is causing the impact. 42 In this case, the affected views are from rear yard of Mr Garside's property at 212 Caringbah Rd over the site to Yowie Bay and the opposite foreshore. The current view is largely filtered by existing vegetation however it is still an attractive view. I did not understand the evidence of Mr Black or Mr Crane to suggest that the views from Mr Garside's dwelling were unacceptably impacted upon by the proposal.

43 The amended proposal provides for improved views over the original proposal by lowering the majority of the roof form by approximately 1 metre and increasing the separation of the proposed dwelling to the existing dwelling from approximately 2 metres to 6 metres.

44 Beside the views maintained through the increased 6 metre separation, Mr Crane estimates that from most of the higher side of the rear yard of Mr Garside's property it would be possible to see the opposite foreshore and part of Yowie Bay although this was not confirmed by Mr Black.

45 During the hearing the possibility of further reducing the height of the dwelling from Mr Garside's property was canvassed with the applicant who agreed that a further reduction of 300 millimetres could be obtained by simply dropping the height of the whole dwelling by increasing the limited cut currently proposed. 46 I accept that the proposal will result in the loss of some of the views currently available from Mr Garside's rear yard however the proposal provides a reasonable balance between the development of the site and the impact on Mr Garside's property. In coming to this conclusion I propose to impose a condition requiring that the overall height of the building be reduced by 500 millimetres. While this is greater than the 300 millimetres accepted by the applicant, the additional reduction provides greater certainty that views will be available to Yowie Bay from the higher and more northerly parts of Mr Garside's property.

47 In relation to the council planning requirements and the Tenacity Consulting consideration of reasonableness, I note that the dwelling satisfies or exceeds the maximum 7.2 metre height. With the further reduction of 500 millimetres, at Section C-C, located towards the rear of Mr Garside's property, the roof height is 500 millimetres below the 7.2 metre height requirement and at Sections A-A and B-B the roof height is in excess of 2 metres below the 7.2 metre height requirement. 48 In considering the matters raised in Tenacity Consulting, the impact on view loss is moderate however the view loss occurs from the rear yard area (as compared to the dwelling) and when combined with the satisfaction of the councils height control requirement and the provision of the 6 metre separation between the buildings I find that the impact on views from Mr Garside's property is acceptable in the circumstances. Orders 49 The Orders of the Court are: 1) The appeal is upheld. 2) DA 04/1822 for the subdivision of an existing lot into two lots and erection of a new dwelling on the new vacant lot at 214 Caringbah Rd. Caringbah is approved subject to the conditions in Annexure A. 3) The Exhibits are returned with the exception of Exhibits J and L.

      G T Brown
      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.

CITATION : Lambert v Sutherland Shire Council [2005] NSWLEC 644

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; CASES CITED: Tenacity Consulting v Waringah [2004] NSWLEC 140

At a glance

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Decision date

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Judgment (36 paragraphs)

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Cases Cited (3)