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. 10 The applicant's evidence was heard from: - Mr D Ford, arborist, - Mr A Ludvik, consultant town planner, - Mr Hafouri, architect and - Mr Mahanna. 11 The parties had agreed to the appointment of Mr S Layman, architect and town planner, by the Court and he gave evidence also. 12 At the end of the day on site the parties viewed the site from across the river at Bald Face Point in Kogarah Shire to compare Exhibit E photomontages of the peninsula and its houses with the previous design in Exhibit A superimposed. A perspective of the proposal at that time is in Exhibit F. It should be noted that the issues, as identified above, related to the Exhibit A plans and Exhibit B the landscape plans. 13 The applicant asked me to express matters that should be the subject for further evidence, and in summary I advised them that Mr Layman's evidence had considerable weight. The parties agreed to an adjournment to give further consideration to that evidence, and over the next few months amended plans and negotiations were prepared. On resumption of the hearing Exhibit M was tendered being a joint report by Messrs Ludvik, Riordan and Layman saying that all matters of remaining concern in the joint experts' report of 12 May 2006 had been appropriately dealt with by the amended plans in Exhibit L. 14 These included amended architectural and landscape plans, however in reading the minutes of the 12 May meeting I found that in regard to the stone wall proposed at the pool level under the house Messrs Layman and Riordan preferred the natural cliff face behind the proposed wall should be exposed and the wall deleted. Mr Ludvik thought the cliff had previously been hewn out and would only provide a minor undercroft, and the appearance of the house would be better served by the stone wall. The three felt that I should determine that matter. 15 That position has been resolved subsequently by the parties to remove the stone wall, and that is shown on the architectural plans but not the landscape plan. A suitable condition should be added to avoid ambiguity. The other matters of concern in the 12 May joint report were: (a) The partial extension across the waterside elevation of the planter boxes to the balconies at the middle level and upper ground level of the Exhibit A five level house were discussed. The planters ran down either side of the house on the balconies and that was beneficial for privacy from neighbours, and softening of the side elevations with greenery. The waterside elevation or east side returns, it was thought, added visual prominence and an asymmetrical appearance to those levels when seen from the water. It would be better if minimised. The rest of the eastern façade of the house is quite symmetrical. In Exhibit L the upper ground level that is now the lowest floor of the house has no planter boxes, and the middle level has deleted the returns of planters on the east elevation. (b) The eastern edge of the swim pool had been poorly detailed and may be quite noticeable from the water. 20 Kangaroo Point Road, the southern neighbour of the subject property, has a raised swimming pool already built adjacent to the proposed swimming pool. Number 20's pool is very prominent and deleterious to the foreshore, and certainly should not be repeated. The Exhibit L plans of the proposal extended an existing stone retaining wall at the south-east corner of the proposed pool and the landscape plan provided vegetation in front of the east side of the pool and at the foot of the retaining wall to reduce its visibility from the water. (c) On the elevations at the street level a balustrade to the pedestrian entry bridge from the street to the front porch, and on the east elevations all balustrades are drawn as see-through but are not nominated as glass. In previous plans it could be construed that they were shown as masonry. Because the material was not specified Mr Layman sought the glass balustrades to reduce the prominence of the east and west elevations and to enable a better view from the inside of the house. The applicant agreed to the glazed section of the balustrades and it only remains to impose a condition to clarify that material since it is not shown on the plans. 16 Overall the experts of both parties are generally satisfied with the proposal as it now stands except for the above. Updated conditions in Exhibit 10 are not contested by the applicant. They include conditions for integrated development required by the Department of Infrastructure Planning and Natural Resources. 17 I have formed the opinion that with the addition of conditions regarding the identification of trees A and B, and the nomination of glass balustrades, and the deletion of the stone wall at the pool level, and the recessing of the pool access corridor back into the natural rock face, and the retention of the natural rock with suitable vegetation such as ferns and creepers in the undercroft, the appearance of the house will avoid any likelihood of the pool level appearing to be a fifth storey of the house, and will enhance its appearance from the water, including from those houses and the lookout on Bald Face Point opposite the site across the Georges River. 18 Therefore, the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to the demolition of the existing house and shed at No. 18 Kangaroo Point Road, Sylvania, and the erection of a new house and pool as shown on plans Nos. 101 Issue 22, 102 Issue 19, 103 Issue 17 by ALTIANT consultants, all dated 12 May 2006 and landscape plans L01/2-R9304, L02/2-R9304 both Revision D both dated 15 May 2006 all as amended by and built in accordance with conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits 6, 7, 8, 9, 10, 11, 12, 15, E, L, and M. ___________________ K G Hoffman Commissioner of the Court rjs 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.