21st Century Building and Construction Pty Ltd v Sutherland Shire Council [2006] NSWLEC 410

Land and Environment Court of New South Wales

CITATION : 21st Century Building and Construction Pty Ltd v Sutherland Shire Council [2006] NSWLEC 410

APPLICANT 21st Century Building and Construction Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 11523 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Consent :- Character and visual impact, tree retention, height limit, floor space ratio, privacy, carparking and access, inadequacies with plans, foreshore scenic protection

State Environmental Planning Policy No. 1 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 Landscape Development and Control Plan

DATES OF HEARING: 24/03/2006, 01/05/2006 and 27/06/2006

EX TEMPORE JUDGMENT DATE : 06/27/2006

APPLICANT Mr G Newport, barrister SOLICITORS LEGAL REPRESENTATIVES: xenoslawyers

RESPONDENT Mr C Mathieson, Principal Environmental Lawyer OF: Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

27 June 2006

11523 of 2004 21st Century Building and Construction Pty Ltd v Sutherland Shire Council

JUDGMENT

1 This is a Class one appeal No. 11523 of 2004 between 21st Century Building and Construction Pty Ltd and Sutherland Shire Council in regard to the refusal of a very large five level house at 18 Kangaroo Point Road, Sylvania. The area is a peninsula in the Georges River with a mix of very large, newer homes and older, but in most cases, still large homes. The street runs along the ridge of the peninsula and in most places the allotments on either side of the street run down to the water. 2 The subject site has an immediate drop from the public footpath of about 2 m, then it slopes steeply down about another 10 m height to a relatively level area. East of that level area is another steep slope of about 16 m height down to AHD 1.75 where there is another level area at the foreshore. The total fall in the allotment is about 28 m. 3 There is a 30 m foreshore setback building line and the proposed swimming pool on the central level area of the allotment is about 32 m from the foreshore. Access pathways and landscaping are proposed within the foreshore building setback area. The house begins about 45 m from the foreshore at the steep slope up to the road. 4 In the original application refused by council there was one storey of the house at the pool level with a large colonnaded pergola over and around the swimming pool, and there were a total of five levels in the house. The council controls seek two storey houses with possibly three as a maximum in the area to try to maintain a balance of vegetation to built form and to protect the scenic attraction of the foreshore and the waterway. The final design before me in Exhibit L still had four levels but had considerably more stepping of each level behind the one below and less visual bulk than the original. 5 At the pool level the rooms and large pergola had been eliminated. Also a stonewall proposed to rise up from the pool level to meet the upper ground floor at the next level had also been deleted to expose the existing natural rock cliff. 6 Trees of about 3 m growth are to be planted in front of the cliff to continue the vegetation in the foreshore setback building area as seen from the water, and thereby reduce the apparent bulk of the house. 7 The amended plans showed this upper ground floor level with a deep balcony recessing under the level above to produce a shadow line that reduces its visibility, perhaps giving the casual observer on the water the impression that the house is only three storey. The top floor of the house has had the roof lowered and stepped well back towards the road and made less obtrusive as seen from the water. These changes brought the house into compliance with the height limit and made redundant the State Environmental Planning Policy No. 1 objection filed during the proceedings. The reduction of the floor space in the house has reduced its bulk and the house now complies with the 0.4:1 floor space ratio. Also two large trees up near the street that were clearly seen from the water on the ridgeline of the peninsula are now to be preserved. 8 The further amended statement of issues dated 20 February 2006 stated as follows: Character and visual impact 1 The development is excessive in height, scale and bulk, it is inconsistent with the character of the area (particularly when viewed from the water) and it does not satisfy the following: Sutherland Shire Local Environmental Plan 2000 ("SSLEP 2000") (i) The height limit objectives and development standards of 7.2 m to the uppermost ceiling and 9 m to the highest point of the roof in cl 34. Note : ground lines shown on the plans at that stage were inaccurate. (ii) The floor space ratio objectives and development standard of 0.4:1 in cl 35. Whether the development standard is unreasonable and unnecessary. (iii) The objective in subcl 19(1). (iv) Special consideration (c) (cumulative impact on the character of the neighbourhood), (d) (in respect of size, bulk and height), (f) (in respect of the built environment) and (h) (in respect of visual amenity) in cl 30. (v) Objectives (a), (b) and (c) of the 2(e2) Residential Zone in cl 33. Dwelling houses in the 2(e) Residential Zones and Kurnell Development Control Plan ("Dwelling Houses DCP") (vi) Design and Siting of Dwellings - objectives 1 and 2 and control 2 in subcl 10.1. (vii) Floorspace - objectives 1, 2 and 3 in subcl 10.2. (viii) Height - objectives 1, 2, 3, 4 and controls 1, 2, 4 and 6 in subcl 10.3 Sutherland Shire Draft Local Environmental Plan 2004 ("Draft SSLEP 2004") (ix) Objectives (a) and (b) of the Environmental Housing (Environmentally Sensitive Land) zone in subcl 26.1. (x) Objectives (a), (b),(c) (e) and (g) in subcl 8.1(2). (xi) Objectives (e) and (f) in subcl 8.2(2). (xii) Objectives (a) and (d) in subcl 8.4(2) and subcl 8.4(3). (xiii) Objectives (a) and (b) in subcl 8.5(2) and subcl 8.5(3). Tree Retention 2. The proposal is unsatisfactory and it will have unacceptable impacts on the significant tree, (Blackbutt) located adjacent to the western boundary, one of (which is nominated as being retained) and due to the removal of the tree located between the tree referred to above and the building. These trees have high scenic value, make a significant contribution to the streetscape and character of the area and form an important part of the ridgeline vegetation. The proposal also fails to satisfy the following: (i) Special considerations (e) and (f) in cl 30 of the Sutherland Shire LEP 2000, (ii) 2(e2) Zone Objectives (1)(c) in cl 33 of Sutherland Shire Local Environmental Plan 2000, (iii) Objectives (1) and (3) in cl 9 of the Dwelling Houses DCP, (iv) Landscaping objectives 2, 4, and 5 and control (a) in subcl 10.2 of the Dwelling Houses DCP, (v) The objectives in cl 3 of the Landscape Development and Control Plan. (vi) The objectives in subcl 7.1 of the Landscape Development Control Plan, (vii) The objectives and controls in subcl 7.2 of the Landscape Development Control Plan. Note the applicant is invited to provide further details to clarify this matter. Privacy , 3. Deleted. Car parking and Access 4. Were deleted. Errors and Inadequacies with the Plans 5. The application does not warrant development consent as insufficient information has been provided to enable a full and proper assessment of the application to be undertaken. In particular: (i) deleted (ii) The landscape plan and architectural plans are inconsistent, particularly as regards the Street Level 1 terrace planting which appears on the floorplan but not the landscape plan nor elevations. (iii)- (ix) were deleted. (x) Ground Level 5 indicates a structure on the north of the deck (columns and beams). This structure as represented on Ground Level 5 is inconsistent with the representation of the structure on the eastern and the northern elevations in that the arrangement of the elements does not clearly indicate what is to be constructed. Objections 6. The issue on objections was deleted. 9 At the on-site hearing in March 2006 the respondent's evidence was heard from: o Mr M Riordan, town planner for the council, o Mr P Shiels, aborist.