Vibuild Pty Limited v Kiama Municipal Council

APPLICANT Mr I Hemmings, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr P Moggach, solicitor Kearns & Garside

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10132 of 2007 Vibuild Pty Limited v Kiama Municipal Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an appeal pursuant to s 97 of Environmental Planning and Assessment Act 1979 (the Act) against a refusal by Kiama Council (the Council) on 12 December 2006 of a development application for the erection of a second dwelling on Lot 27 DP 14188 being 27 Pacific Avenue, Werri Beach (the site). The area of the site is approximately 875 sq m and, although there is a minor twist to the perfect rectangularity of the site, it is generally regularly rectangular in shape and it has a frontage of a little over 15 m to the street.

2 Pacific Avenue lies between the site and the foreshore reserve, frontal dune and then beach of Werri Beach. All the dwellings along this portion of Pacific Avenue (which it is agreed is in area undergoing a transition) have (at least from the upper levels of the two storey dwellings in this precinct) extensive views to the headlands of the north and south of Werri Beach and of the ocean directly in front past the frontal dune.

3 An earlier application for dual occupancy development on the site was heard and refused by Hoffman C in Vibuild Propriety Limited v Kiama Municipal Council [2004] NSWLEC 396.

4 Hoffman C refused that development application which was broadly similar for built form but located significantly further forward for the front element than is presently the case. His concluding paragraph is in the following terms: "This proposal, by being forward so far and having the bulk it has, will create unacceptable impacts on the streetscape and its neighbours sufficient on those grounds alone for refusal."

5 Hoffman C then refused the appeal. A variety of other matters were canvassed before him but he did not deal with them - he impliedly setting them aside because the sole determinative matter, rather than any possible accumulative matters, militated against the application.

6 Considerable issue has been joined about the nature of the building line and the applicablility or otherwise of the foreshore building line controls contained in Kiama DCP 36. In para 20 of Hoffman C's decision, he appears to accept that the property fronts a public reserve or foreshore area - with certain consequences which flow from it.

7 I am not certain that that is the legally correct position. However, it would seem to me appropriate to consider the matter, in the first instance, without needing to express a determined opinion on that point.

8 Hoffman C, in my view, in para 21 of his judgment does not, in fact, define the building line in this section of Pacific Avenue but acknowledges the fact of the building line and he does so in the following terms: "The relevant precinct of this proposal has setbacks in the order of 12 to 14 metres except for a single storey shop in a business zone two doors from the subject proposal."

9 I am satisfied that, whether or not the building foreshore line is required to be adopted or not, Hoffman C correctly acknowledged and adopted as appropriate (in this precinct) recognition of the existing and obviously long standing building line of 12 to 14 m from the front boundary. He did so whether or not that is as a matter of long standing streetscape conformity or arising from some other provision in a policy or development control plan of the Council.

10 I consider it appropriate that I should assess the application on the most beneficial basis to the applicant and only if it succeeds on that basis should I then turn to consider any of the more prescriptive positions advocated by Mr Moggach, solicitor for the Council, against the positions put by Mr Hemmings, barrister for the applicant.

11 I propose to start by expressly rejecting a proposition that Mr Moggach put to me as militating against this application. The proposition is that the application amounts to some form of surreptitious backdoor attempt to circumvent the planning controls of the Council by firstly seeking approval for a dwelling house which has now been constructed and then seeking approval for a dual occupancy development encompassing that existing dwelling house. 12 It seems to me that such circumstances are expressly contemplated by Development Control Plan 7 (DCP 7) for dual occupancy development. 13 The only thing that causes the ire on behalf of the Council is the fact that the two steps have taken place in close proximity. Had the dwelling now erected on the site been erected, ten, fifteen or twenty months or years ago, it would have been unlikely that a similar proposition would have fallen from Mr Moggach's lips because conversion of existing residential stock into dual occupancy development is clearly acknowledged and permitted by DCP 7. 14 It is perfectly legitimate process, for a developer to go through, to take best strategic advantage of the structure of a Council's planning controls and instruments for its own advantage if it wishes to do so. I decline to draw any adverse inference against the applicant for that reason.

15 I propose to set aside, as I indicated, a number of matters relating to the non-compliance of the now constructed proposed front unit with various numerical controls in DCP 7 and simply test the development and its acceptability by having regard to the additional elements that are proposed to be added and whether they do or do not lead to an acceptable development.

16 There are a number of matters that are put in contest. 17 The first relates to the provision of adequate solar access to the private open space of unit 1. Mr Richardson and others participating in the proceedings have now been provided with more accurate solar impact diagrams that show the shadows cast by the Theobold residence to the north. Mr Richardson conceded that it was probable that fifty per cent of the private open space received a minimum of three hours of sunlight between 9 and 3 on 22 June measured at the appropriate height. 18 I have carefully considered the shadow diagrams and I am satisfied that there is no basis upon which I can conclude contrary to such a proposition.

19 Secondly, the drying area that is proposed in satisfaction of clause 8.7 of DCP 7 is proposed to be on the southern side and in the side setback. It is difficult to see how it will receive any access to sunlight let alone reasonable access to sunlight. 20 However the proposition in DCP 7 is put as a need rather than a requirement and it uses the word "sunlight" and "breezes" in the conjunctive rather than in the disjunctive. 21 I am satisfied that there would be limited utility to the drying space because of its proposed location (as now amended from its original location adjacent to the bedroom of the rear dwelling - which would have been entirely unacceptable). Whilst this concern is a negative, I am not satisfied that I could or should refuse the application on this basis and it would make a modest but minor contribution to other matters for consideration of refusal.

22 The next matter that is put in contest is the non-compliance with the landscaping requirement along the driveway - this requiring a 1 metre wide landscaping strip. 23 The landscaping strip is, at its narrowest, 620 mm wide. The driveway and its attendant landscaping strip do not vary between the existing approved development and the proposed development. 24 I accept, however, that there will be a degree of additional vehicular and pedestrian traffic to the rear unit and that there will likely to be substantial pedestrian traffic to the front unit because of the number of bedrooms provided for it. There will be some additional impact on the Theobold residence and that impact will, perhaps, be marginally greater than would be one for a dual occupancy development which was otherwise entirely compliant with the numerical requirements for unit 1. Again, however, this would make a minor contribution to refusal rather than warranting refusal on its own.

25 That conclusion encompasses not merely the issue of landscaping but the issue raised by Mrs Theobold of additional pedestrian and vehicle traffic.

26 Setting aside the questions of numerical compliance, the matter on general principle that I consider is the most serious for the applicant relates to the provision of the private open space within the front setback of the building. 27 The application is to be assessed on the assumption that the fence shown in the approved plans for the development which has actually been constructed on site is present, that is a 1200 millimetre high picket fence with an embayment in the middle and a series of concrete block or brick piers (rather than the fence which has been constructed contrary to the development approval). 28 However, I am also obliged to assume that behind that fence will be firstly a layer of landscaping to a depth of 1 m or so and a height of approximately 2 m, then, commencing at a point 7.6 m to the rear of the front boundary, a privacy fence which would be 1500 mm high of horizontal slatted timber rails (the rails of this would be 50 mm in width with 50 mm gaps between them) and a variety of climbing plants, planted to climb up those fence slats. This fence would commence at the corner of the dwelling and proceed in an easterly direction along the driveway to the 7.6 m mark and then turn south and run continuously to the southern boundary. There would be gate access to the balcony/patio area on the driveway so that it could be accessed directly from the driveway.

29 During the course of the site view, I carefully looked (on my departure from the site - as I was invited to by the representatives of the parties) at the nature of the structures and the streetscape in the immediate vicinity and down to and including the southern intersection. 30 On the southern side of the southern intersection, there is a new dwelling (of what one might delicately describe as unusual and eclectic design in its context) erected on the southern side of that corner which dwelling appears to have as its only available private open space being in the front setback. I have no plans for that dwelling and I have no indication as to whether or not that is accompanied by proposed fencing similar to that which is proposed in this application.

31 It was Mrs Theobold's evidence, in response to questions that were put to her, that there was quite a deal of pedestrian and vehicle traffic to the fish and chip shop immediately to the north of her property and that that particularly happened in the summer. As a consequence, she was concerned about additional parking. However, it also follows from her evidence that, at least in the summer time, it is reasonable to expect that there will be a deal of pedestrian traffic in the vicinity of the site.

32 All of the remaining development that I observed in this precinct has no equivalent remotely resembling that which is proposed by the applicant in the front setback area.

33 The Council acknowledges that this site almost fitted a classic template for a dual occupancy development. The constraints that exist for dual occupancy development on the site are created by two factors. 34 The first is the building line set in the streetscape, as discussed by Hoffman C, of 12 to 14 m and the second is the constraints that flow from the applicant having chosen to build the structure for which the applicant has been given consent and is now erected on the site. 35 A different development could possibly have made different and compliant provision for private open space that was not in the front setback. Private open space in the front setback is going to be entirely alien and out of character in the streetscape. 36 The nature of the front fencing and landscaping will be unexceptional but that which will be viewed behind it will be a 1.5 m high fence which will have, in its appearance, a deal of solidity. This fence will need to be (as it is proposed to be) sufficiently high to provide privacy to this space. This will effectively eliminate many of the benefits of the easterly and south-easterly aspect that might otherwise be enjoyed by persons casually standing in the front yard of the site. 37 This proposed arrangement is entirely out of character with the area and its streetscape and is sufficiently alien to warrant refusal of the appeal on that basis on first principles. 38 As I have reached that conclusion I do not need to consider whether any of the other matters of numerical compliance or otherwise have any merit or not. 39 The appeal therefore is dismissed; the development application for the dual occupancy development is determined by refusal for development consent and the exhibits are returned.

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