Seneviratne H A v Clarence Valley Council

CASES CITED: Tenacity v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 08 October 2007; 22 October 2007

APPLICANT: Mr R Creighton of Australian Town Planning Consultants 2 Pty Limited SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr M D Seymour, barrister, instructed by Mr S C Priestley, solicitor SOLICITORS: Pickering Priestley

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10545 of 2007 - Hetti Arachchige Seneviratne v Clarence Valley Council

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Clarence Valley Council (the council) to approve a development application to erect a new dwelling house at Lot 8, DP 1045087, being No 20 Riverside Drive, South Grafton, subject to conditions. In this appeal that is de novo, meaning afresh, Condition 1 that relates to the height of the ridge of the proposal is in contention. 2 I visited the land in company with the parties on the morning of the hearing and the gradient of the ramp also became an issue. 3 I have concluded that as the new architectural plans now reflect the levels agreed during hearing, consent may be granted. The land 4 The land is situated on the southeastern side of Riverside Drive. It is vacant, rectangular in plan and has a frontage to Riverside Drive of 18.9m and a depth of 48.5m and an area of some 916.65m2. It falls around 10m from the southeastern boundary to the northwestern boundary so gravity drainage is possible towards to the street. 5 From the land, views are available to the west up the Clarence River including Susan Island. The locality is characterised by dwellings and open space. Relevant planning controls Grafton Local Environmental Plan, (GLEP) 6 Under the provisions of the GLEP the land is zoned Residential 2(a) and the proposal is permissible with consent. 7 The objectives of the 2(a) zone under the instrument are: (a) To designate areas where residential development is the primary land use and where non-residential uses are permitted only when they are compatible and subordinate to the residential character; (b) To denote housing densities and types and desired location of allowable land uses whilst maintaining the existing character of those areas by development control plans; (c) To allow non-residential uses that can be demonstrated to be compatible with the residential zoning and having regard to public opinion; and (d) To provide opportunities for the provision of secure, appropriate and affordable housing in a variety of types and tenures for all income groups within the City of Grafton. 8 The council agreed that of these, only objective that has relevance to these proceedings is (b). Clarence Valley Development Control Plan, (CVDCP) 9 The CVDCP has one relevant provision: D3 Site Assessment Requirements The site assessment should be included as part of the development application. The site assessment should consider the existing characteristics, opportunities and constraints of the site and the surrounding area, which should form the basis for site layout and building design. The site assessment of should identify: (a) topography and slope; (b) drainage pattern; (c) existing vegetation; (d) aspect and prevailing winds; (e) location of services (sewerage & stormwater); (f) views (to and from the site); (g) existing buildings (structures) on the site and adjoining land; (h) heritage and archaeological features; (i) access (pedestrian and vehicular); (j) contaminated soils; and (k) easements. An assessment of the impact of the proposed development on the surrounding area should also be made. This should address the site-specific matters and the following: (a) privacy; (b) views; (c) solar access; (d) difference in levels between the site and adjacent properties, particularly at their boundaries; (e) the built form and character of adjacent development, particularly street frontage features eg. fencing; (f) access to local shops, schools, public transport, open space, recreation and community facilities; (g) adjoining bushland or environmentally sensitive land; (h) sources of nuisance, eg. traffic noise, industries; and (i) the location and height of neighbouring buildings, including the location of facing windows and doors. Building design and siting should seek to balance the benefits of views, solar access, prevailing breezes and vegetation. The building design should also seek to minimise adverse impacts on adjoining properties and adjacent. Of particular concern is the potential impact on coastal views from buildings that are adjoining or adjacent (separated by public road) to a proposed development, though in assessing these impacts Council will always be aware that no-one can own a view across private property. Accordingly, Council has adopted the principle of view sharing in respect to coastal views. The potential impact on river views must be given consideration in assessing the impact of the proposed development and where applicable information regarding impact on river views submitted with a Development Application. The proposal and its history 10 Development application No DA2006/0465 was lodged on 6 June 2006 and was approved by the council on 21 November 2006, subject to conditions. The proposal is for a two-storey dwelling house on the land. 11 The levels of the original new proposed building were for the ground floor at 15.4m, Australian Height Datum, (AHD), with the garage at 15.1m AHD and the top floor at 18m AHD. No height was specified on the plans for the ridgeline of the proposal; however, the council officers scaled off the plans, and determined the proposed upper ridge height as being 21.3m AHD. 12 Blairlanskey Surveyors at the request of the council, erected poles or staves to indicate a ridge height of 21.3m AHD of the proposed higher northern pitched roof. The applicant sought to retain the pitched roof form however, conceded that the ridge of the northern higher roof could be lowered in an amended application to 21.3m AHD, if it were at a lower pitch. The amended lowered ridge height of the southern roof at the same pitch would be 21.0m AHD. Notification 13 The neighbours were notified of the development application on 14 June 2006 and the council received only one objection dated 19 June 2006, from Ms Leigh Jones and Mr Stephen Lamb residents of No 22 Bent Street, South Grafton. The issues they raised were: · complete loss of view; · proximity to the fence line; · the quality of the dwelling not being in keeping with the surrounding residences; and · the devaluation of their property. 14 The council identified only one objection having any significant merit, that being view sharing. The objectors indicated that they would be content if the ridge of the northern roof were no higher than 20.8m AHD and the southern roof ridge were no higher than 20.5m AHD, both are a 500mm difference in level to the ridge heights proposed by the applicant in the amended application. The council's decision 15 By notice dated 4 December 2006 the council granted development consent to the development application subject to conditions including Condition 1: 1. The maximum roof ridge height of the northern section of the dwelling shall be 20.8m AHD. The southern section of the house shall be 1000mm lower than indicated on the submitted plan (ie. 20.3m AHD). Details of how this will be achieved shall be submitted on amended plans to be approved prior to issue of the Construction Certificate. (Reason: To achieve reasonable view sharing). 16 The council believed reasonable view sharing could be achieved if the applicant were to accept three suggested design alternatives being: a. reducing the pitch of the roof to 7.5 degrees or introducing curved roof to reduce the ridge height; b. mirror reversing the dwelling so that the first floor living areas are on the north side so that the higher ridge height would block out a view of the South Grafton Services Club rather than the river; and c. moving the dwelling 1m to 2m downhill to reduce the impact on views due to the proposal's height. The hearing 17 The appeal de novo was filed on 12 June 2007, and against the imposition of Condition 1 relating to the height of the proposal. 18 At the hearing the Court heard evidence on behalf of the respondent council from: · Ms Leigh Jones and Mr Stephen Lamb, of No 22 Bent Street, South Grafton; · Mr Greg Long, town planner of Clarence Valley Council.

19 On behalf of the applicant Mr Andrew Martin, consultant town planner, gave evidence. The contentions 20 On 1 August 2007 the council filed a statement of contentions: (a) Whether building design achieves a reasonable balance in respect of the benefits of views; (b) Whether the building design has minimised to the extent reasonably possible, adverse impacts on adjoining properties.

21 The salient issue was view loss. The evidence and findings View loss 22 Mr Martin carefully considered the objectors' concerns and was of the opinion that: …Condition 1 of the development consent No 2006/0465 be amended to require that the maximum roof height of the dwelling be limited to 21.00m AHD for a maximum width of 7.0m as measured from the western external wall being the roof area over part of Bed 2, bathroom, Bed 3, Bed 4 and part of the lounge. The southern section shall be no higher than 20.5m AHD. The plans are to be amended prior to the issue of a construction certificate. …an additional condition be added preventing the installation of solar hot water heaters or the like that potentially affect the view afforded to No 22 Bent Street, South Grafton.

23 However, during the hearing the parties agreed on the levels in Exhibit D and agreed that if amended architectural plans and driveway centreline drawings were prepared reasonable view sharing would result. The agreed height of the highest ridge was 20.5m AHD that would have provided adequate view sharing in conformity with the decision of Senior Commissioner Dr J Roseth in Tenacity v Warringah Council [2004] NSWLEC 140. 24 The Court agreed with the parties' position and adjourned the hearing to allow further drawings to be filed and served by 22 October 2007. These amended plans were received by the Court on 22 October 2007 and showed substantial compliance with the levels agreed in Exhibit D. 25 The architectural plans in Exhibit E were prepared by Lyle Marshall and Associates Pty Limited, dated October 2007 Drawing No 1995-07, Sheets 00, Issue A; 01, Issue A; 02, Issue A; 03, Issue A; 04, Issue A; 05, Issue A; 06, Issue A; 08, Issue A; and Plan and Longitudinal Section of Proposed Concrete Driveway Sheet 1 dated October 2007 together with a survey by Bothamley and O'Donohue Pty Limited, dated 12 October 2007 DWG10604. 26 The amended architectural plans in Exhibit E showed the level of the garage floor and the ground floor at 14.2m AHD, the first floor at 16.8m AHD. These plans also show the new northern ridge height would be 20.50m AHD (by stated levels) and the new southern ridge height would be around 20.25m AHD (scaled off the drawings in Exhibit E). The applicant has also supplied in Exhibit E a centreline for the driveway that meets the requirements of AS2890.1. 27 I am satisfied that these amended roof ridge levels would meet the concerns of the neighbours for adequate view sharing. As the plans are now in substantial compliance with the agreed levels in Exhibit D, I endorse the terms arrived at the parties as reflected in the amended plans. This decision is one that the Court could have made in the proper exercise of its functions under the Land and Environment Court Act 1979. 28 For the above reasons, the appeal is upheld. Conditions The conditions are those in Exhibit 1 as amended during and after the hearing. Orders 29 My orders are:

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

2. Development application No DA 2006/0465 lodged with the council on 6 June 2006 and approved by the council on 21 November 2006, to erect a two-storey dwelling house at Lot 8, DP 1045087, being No 20 Riverside Drive, South Grafton, is confirmed subject to Conditions 1 to 19 in Annexure A.

3. The exhibits except for Exhibits A, B, D, E, 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/

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.