Nikolaidis & Anor v Pittwater Council

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Nikolaidis v Pittwater Council [2007] NSWLEC 678 CASES CITED: Nikolaidis v Pittwater Council (2009) 171 LGERA 104 Segal v Waverley Council (2005) 64 NSWLR 177 Zhang v Canterbury City Council (2001) 115 LGERA 373

APPLICANT Mr TS Hale SC, barrister Instructed by Mr P Macarounas LEGAL REPRESENTATIVES: McLachlan Chilton RESPONDENT Mr PW Larkin, barrister Instructed by Ms T Sheahan Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10473 of 2009 Leon Nikolaidis and Brigitte Nikolaidis v Pittwater Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Pittwater Council (the Council) of consent to a development application N0399/08 for alterations and additions to a dwelling at 4 Princes Street Newport, Lot 1 DP 1058241 (the site). 2 The site is located in a strip of houses on the western side of Princes Street and has waterfrontage to the Pittwater waterway. There is a park, Dearin Park, to the south of the strip of houses. The surrounding area is a mix of single dwelling houses and residential flat buildings. The site has a two storey dwelling house approved by Council in 2003 (the 2003 consent). 3 In 2006 the Council refused an application pursuant to s96 of the Act for modification of the 2003 consent by the inclusion of a parapet of 870mm around the top of the building, which has a flat roof. An appeal against that refusal was partially upheld, and approval was granted by Tuor C for the erection of the parapet limited to an area on the north east corner of the building to screen an air conditioning unit: Nikolaidis v Pittwater Council [2007] NSWLEC 678 (the 2007 approval). In these proceedings the applicant seeks approval for the "continuation of raised parapets to eastern elements of roof and part of northern roof". The Council refused the application on 6 November 2008 and the applicant appealed to the Court. 4 The Council sought an order that the appeal be dismissed on the ground that the appeal is an abuse of process, because the subject matter of the appeal, the continuation of the parapet, was the subject of the previous proceedings heard and determined in 2007. That application was refused by Preston CJ: Nikolaidis v Pittwater Council (2009) 171 LGERA 104. 5 The issues in these proceedings relate to the height and bulk of the building, which the Council contends is non-compliant with applicable planning controls relating to side and rear building lines and building envelope and is not consistent with the desired future character of the locality, and results in adverse amenity impacts on the neighbouring properties. The Council also contends that the dwelling as altered by the proposed development increases the potential for the roof to be used as a trafficable and entertaining area which would result in a loss of privacy to neighbouring properties. The Council contends that in the exercise of discretion approval should be refused given the basis on which the 2007 approval was determined, the development for which consent is sought is the same development that was the subject of the 2007 approval, and there has been no change in circumstances since the 2007 approval. A further issue relating to building colours and construction was accepted as being capable of resolution by the imposition of appropriate conditions of consent. 6 The Council identified in its Statement of Facts and Contentions works which it alleges have been carried out on the roof otherwise than in accordance with the previous consents. Those works include the construction of a fully formed staircase with a full height door on to the roof, instead of the stair ladder identified in the approved plans; a 2m high roofed structure over the door opening onto the roof; the forming of the lower parapet wall on the southern, western and part of the northern edge of the roof area with a centralised slit which has the potential to be used to construct a balustrade; and provision of electricity and plumbing to the rooftop. Those works are the subject of a Notice of Proposed Order given on 7 October 2009 pursuant to s121H of the Act. 7 A plan showing the extent of the approved parapet and the extent of the additional parapet proposed in this application is annexed to these reasons. Planning Controls 8 The site is zoned Residential 2(a) under the Pittwater Local Environmental Plan 1993 (the LEP) and the development is permissible with consent. The site is located in the Foreshore Scenic Protection Area. 9 The Pittwater 21 Development Control Plan (the DCP) applies to the site. Relevant provisions in the DCP are Section A4.10 - Newport Locality - Desired Character; Section D10.8 - Side and rear building line; D10.11 - Building Envelope; D10.4 - Building Colours, materials and construction; Section C1.23 - Eaves; and Section C1.5 - Visual privacy. 10 The Desired Character for the Newport Locality is described in the following terms: The Newport locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting, integrated with the landform and landscape. … Future development will maintain a height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise facade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. 11 The Visual Privacy controls in section C1.5 are as follows: Private open space, recreation areas including swimming pools and living rooms of proposed and any existing adjoining dwellings are to be protected from direct overlooking within 9m by building layout, landscaping, screening devices or greater spatial separation as shown in the diagram below (measured from a height of 1.7m above floor level). Elevated decks and pools, verandahs and balconies should incorporate privacy screens where necessary and should be located at the front or rear of the building. Direct views from an upper level dwelling shall be designed to prevent overlooking of more than 50% of the private open space of a lower level dwelling directly below. 12 Section C1.23 provides that dwellings are to incorporate eaves of a minimum of 450mm, and states the following outcomes: Outcomes Housing that reflects the coastal heritage and character of Pittwater. (S) Optimise roof forms. (S) Appropriate solar access and shading is achieved. (En)

13 Section D10.8 of the DCP provides that the side and rear building line is 2.5m on one side and 1m on the other. The Outcomes are stated to be: Outcomes To achieve the desired future character of the Locality. (S) The bulk and scale of the built form is minimised. (En, S) Equitable preservation of views and vistas to and/or from public/private places. (S) To encourage view sharing through complimentary siting of buildings, responsive design and well-positioned landscaping. To ensure a reasonable level of privacy, amenity and solar access is provided within the development site and maintained to residential properties. (En, S) Substantial landscaping, a mature tree canopy and an attractive streetscape. (En, S) Flexibility in the siting of buildings and access. (En, S) Vegetation is retained and enhanced to visually reduce the built form. (En) To ensure a landscaped buffer between commercial and residential zones is established. (En, S)

14 The building envelope controls are set out at section D10.11, which states the following outcomes: Outcomes To achieve the desired future character of the Locality. (S) To enhance the existing streetscapes and promote a building scale and density that is below the height of the trees of the natural environment. To ensure new development responds to, reinforces and sensitively relates to spatial characteristics of the existing natural environment. The bulk and scale of the built form is minimised. (En, S) Equitable preservation of views and vistas to and/or from public/private places. (S) To ensure a reasonable level of privacy, amenity and solar access is provided within the development site and maintained to residential properties. (En, S) Vegetation is retained and enhanced to visually reduce the built form. (En) Evidence 15 The hearing commenced on site with a view and evidence was heard from three neighbours, residents of Nos 2 and 2A Princes Street Newport (to the south of the property) and No 6 Princes Street (to the north). The site view included a view of the subject property from 2A Princes Street, and from Dearin Park, and a view of the roof area of the subject property.

16 The evidence of the resident objectors was consistent with their letters of objection submitted to the Council, which formed part of the Council's bundle of documents in evidence. The concerns of the resident objectors relate to the height, bulk and scale of the building, and issues of privacy and overlooking. In particular the occupant of 2A Princes Street expressed concern that the construction of the parapet would enable the roof area of the subject property to be used as an entertainment area, and that this would enable overlooking of the swimming pool and outdoor entertainment areas of his property.

17 Expert town planning evidence was given by Mr Neil Ingham on behalf of the applicant and Ms Joanne Marshall on behalf of the Council. Mr Ingham and Ms Marshall prepared a joint report and gave oral evidence. Dr Richard Lamb had prepared a Visual Assessment (dated 5 November 2007) provided to the Council in support of the development application. This document forms part of the Council's bundle of documents in evidence. The applicant did not press the tender of a Visual Impact Statement of Evidence prepared by Dr Lamb dated March 2010. Pages 18 to 31, being Dr Lamb's curriculum vitae and six photographs, were admitted and became Exhibit A. 18 It was common ground between the planning experts that the proposed extension of the parapet is visible from the top of the driveway of the site at the street, at the driveway and pool area of 2A Princes Street, from Dearin Park, and to a lesser extent from Bayview Park on the other side of Pittwater. The experts disagreed as to the significance of that. Ms Marshall was of the opinion that the proposed extension of the parapet increased the visual bulk and scale of the building. Mr Ingham was of the opinion that only part of the building would be visible from these vantage points; the impact would be minor from anywhere that the extended parapet would be visible, and that this was better than seeing the present discordant elements of the building. 19 The experts agreed that the south east corner of the proposed extended parapet does not comply with the side building line control in the DCP; that the northern façade as proposed does not comply with the building envelope control; and that the southern extremity of the eastern façade as proposed does not comply with the building envelope control. 20 Mr Ingham's evidence was that the issue is the architectural integrity of the building, and that the result of the 2007 approval is that when viewed from the driveway entering the site or from the driveway of No 2A Princes Street the parapet has a disjointed appearance. Mr Ingham was of the view that there is already a breach of the building envelope control at the south east corner, and the additional breach would not impact on the adjoining owner at No 2A because they would look at the side of the parapet rather than the face of the parapet. Mr Ingham supported a reduced extension of the parapet along the northern façade as far as the chimney; in his opinion this was a logical place to terminate the parapet because the fireplace vent which is higher than the parapet provides a structure which allows the lower level of the parapet to occur at a location where there is an interruption to the parapet itself, and because existing vegetation on the northern side of the building screens the proposed parapet from No 6 Princes Street. In relation to the proposed extension on the eastern façade, Mr Ingham was of the opinion that the parapet should extend in a curved form to the southern façade of the building; this would provide an integrated and consistent parapet around the south eastern street side of the building. The plan annexed to these reasons, which was Appendix D to Mr Ingham's Statement of Evidence (Exhibit B), shows the extent of the additional parapet supported by Mr Ingham. 21 Ms Marshall's evidence was that the 2003 consent for the current dwelling with a number of variations to the setback controls was on the basis of the location of the original house and garage on the site. In her opinion the addition of the higher parapet walls would add to the bulk and scale of the building, increasing its height and visual dominance. Ms Marshall's evidence was that if the parapet is extended on the northern façade it should be to the point where the parapet wall changes direction and curves southward. Ms Marshall was prepared to accept a more modest extension of the parapet along the eastern façade than that proposed in the application, extending only as far as the point mid curve at which the extension would become visible from the street. This would mean that when viewed from the street the northern section of the parapet wall would be high, while the southern section would be low. Applicants' submissions

22 Mr Hale, for the applicants, submitted that the circumstances have changed since the 2007 approval, in particular through the extension to No 2A Princes Street; that the 2007 approval was an application for modification of a consent under s96 of the Act; and that the terms of Commissioner Tuor's decision suggest that there was no determination otherwise than in accordance with an agreement reached between the parties. Mr Hale submitted that the evidence was that from any vantage point the bulk and scale of the building would appear no different, and that the concern about architectural integrity means that the building in its present form would look odd and attract attention. The impact would be minimal: the occupants of No 2A Princes Street would have to look up to see any difference; and from Dearin Park the main aspect of the view is across Pittwater. The 2003 consent includes the following condition: B10. … (2) The roof of the proposed dwelling is not to be accessible apart from routing maintenance requirements. 23 Mr Hale submitted that the inclusion of this condition means that any use of the roof area as an entertaining area would be prohibited, and that if that occurred, the Council would be entitled to take action to ensure compliance with the development consent; and any use for such a purpose would require a further development consent.

Council's submissions 24 Mr Larkin for the Council submitted that consent should not be granted to something that would aid use of the roof as an outdoor entertaining area. On the issue of bulk and scale, the impact should be assessed by reference to the planning controls. The objectives of the building envelope and side setback controls are to achieve outcomes that protect the local area. The controls are already exceeded, and the impact will fall on others; it is not sufficient that there may be some architectural benefit to the applicants in terms of assessing impact on the locality. Mr Larkin submitted that the works identified in the Statement of Facts and Contentions (described in paragraph 6 above) support an inference that the roof area is intended to be used as an outdoor entertaining area. In a written submission made after the hearing, Mr Larkin noted that the Council accepts that I should not have any regard to any unlawful works or potential unlawful use for the purposes of determining this appeal. Consideration 25 The present proceedings relate to the proposed extension of the parapet along the northern and eastern facades of the dwelling. While the neighbouring residents expressed concerns that the roof area could be used as an entertaining area and that this would have visual privacy consequences, particularly for No 2A Princes Street, these concerns are not relevant to the application currently before the Court. I agree with Mr Hale's submission that use of the roof as an entertainment area would be prohibited, and any use for such a purpose would require a further development consent. 26 As noted above, the 2007 approval permitted the parapet only to the extent required to screen the airconditioning unit, and otherwise required the parapet proposed for the rest of the building to be deleted. The 2007 approval included amendment of a planter box on the northern elevation to soften the impact of the development from No 6 Princes Avenue. The Council submits that the outcome in the 2007 approval and Tuor C's reasoning is a relevant matter; Mr Hale submits that the 2007 approval is distinguishable because of the changes in circumstances and the nature of Tuor C's determination. I do not accept Mr Hale's submission that the 2007 approval was essentially the reflection of an agreement reached between the parties. The terms of paragraph 6 of Tuor C's judgment delivered on 28 September 2007 are consistent with the description in paragraph 4 of Preston CJ's decision in Nikolaidis v Pittwater Council (2009) 171 LGERA 104, namely that the earlier proceedings were conducted as an on site hearing on 10 August 2007 at the conclusion of which Tuor C gave preliminary findings. Tuor C's judgment of 28 September 2007 included findings in paragraph 6 that the extension of the parapet as sought by the applicants "would increase the height and bulk of the dwelling", and that while the proposal complied with the height controls in the DCP it "does not comply with the setback and appears a bulky building in the context of the site". Those findings, however, are not determinative of the present proceedings. As Preston CJ noted in Nikolaidis v Pittwater Council (2009) 171 LGERA 104, these proceedings arise under s97(1) of the Act, and the matters to be considered are those identified in s79C(1) of the Act. The nature of the proceedings requires that I consider this application on its merits on the basis of the evidence before me: Segal v Waverley Council (2005) 64 NSWLR 177. 27 The starting point in considering the Council's contention relating to bulk and scale is the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373. The DCP must be considered as a "fundamental element" or a "focal point" of the decision-making process, while not being determinative. In Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [27], the Court of Appeal confirmed that while it might be open to take the view that, for reasons related to a particular site, it is not appropriate to compel compliance with requirements of a DCP, I am not entitled to take the view that the standards set by the DCP are inappropriate for reasons of general policy. 28 There is formwork present along the line of the proposed extension of the parapet, which assists in understanding the visual impact of the proposed extension of the parapet. Based on the site view, I accept the evidence that the proposed extension along the eastern façade to the south eastern corner is visible from Dearin Park, the driveway and front entertaining area of No 2A, and from the street at the entrance to the site. 29 The applicants rely, in part, on changes in circumstances since the 2007 approval, in particular the extension at the front of No 2A Princes Street. I accept that this extension has reduced the extent of visibility of the parapet; however, the proposed extension is still visible from the driveway and the outdoor pool area of No 2A.

30 The building envelope control at part D10.11 of the DCP requires the development to be sited within a building envelope projected 45 degrees from a height of 3.5m on the side boundaries; it was common ground that the south eastern corner of the building does not comply currently, and the extended parapet at that part of the building would not comply. The visibility of the extension along the eastern façade to the south east corner both from the public domain, and from the pool and entertaining area of No 2A, adds to the bulk and scale of the front of the house. This is not consistent with the outcomes expressed at part D10.11 of the DCP, or the statement in the DCP of Desired Character for the Newport Locality, which aim to minimise bulk and scale. 31 The south east corner of the house is 1.105m from the southern boundary. The northern elevation at the point where the roof curves inward to the south is 1.64m from the northern boundary. The side building line control in part D10.8 requires that the setback be 2.5m on at least one side. The existing building does not comply, and the extension of the parapet along the northern façade even to the extent accepted by Ms Marshall would also not comply. This is not consistent with the intended outcomes of the building line controls, which include the minimisation of bulk and scale of the built form. 32 The applicants seek to justify departure from the controls by reference to the architectural integrity of the house. In his Statement of Evidence Mr Ingham described the effect of the current "stepping down" of the parapet as "diminishing the clean lines of the development in an unfortunate manner". Dr Lamb's 2007 Visual Assessment noted that the parapet has "a clumsy, unfinished and unattractive appearance relative to the building", and is "largely unrelated to the underlying form of the structure albeit it has a specific function in disguising the A/C units". The Statement of Environmental Effects provided in support of the development application addressed the issues of Bulk and Scale, and commented: The primary purpose of the proposed parapet extension to the eastern and northern extent of the building is to achieve visual unity and continuity of the building form. This will significantly improve the aesthetic merits of the existing dwelling as it is viewed from the landscaped area to the east of the building (the front building line and primary address of the property). The proposed parapet extension will have no impact upon the visual quality of the site as it is viewed from the western boundary due to the fact that it is limited to a small area along northern and eastern extent of the building. It will be obstructed in short-range oblique views by the main building form. 33 An extension of the parapet along the northern façade, whether to the extent supported by Mr Ingham or to the more limited extent accepted by Ms Marshall, would not be visible from the public domain, and is screened from No 6 Princes Street by plantings, and would not achieve the stated architectural integrity aim. There is a consent for an extensive redevelopment of No 6 Princes Street, which on the plans that are in evidence will result in a building slightly higher than the proposed parapet. The parapet in its present location serves the function of screening the airconditioning unit on the roof of the site from both the existing building at No 6 Princes Street or its replacement, and from the public domain. An extension of the parapet along the eastern façade to the limited extent suggested by Ms Marshall would not be visible from street or the driveway of the site, and accordingly would make a minimal contribution to the stated desired architectural integrity of the building. Any enhanced architectural integrity derived from the extension along the eastern façade as supported by Mr Ingham is outweighed by the increase to the bulk and scale of a building which already does not achieve compliance with the relevant controls intended to minimise bulk and scale. I am not persuaded that the circumstances of this case are such that it is not appropriate to require compliance with the requirements of the DCP, and the extension of the parapet should not be approved. Orders 34 The orders of the Court are: 1. The appeal is dismissed. 2. Development Application N0399/08 for alterations and additions to a dwelling at 4 Princes Street Newport being lot 1 DP 1058241 is refused. 3. The exhibits are returned with the exception of exhibits 1 and 6. Linda Pearson Commissioner of the Court

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