Land and Environment Court of New South Wales CITATION : Burley Katon Halliday Pty Limited v Pittwater Council [2006] NSWLEC 639 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: PARTIES : Burley Katon Halliday Pty Limited RESPONDENT: Pittwater Council FILE NUMBER(S) : 10326 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Bulk and scale of development LEGISLATION CITED: Pittwater Local Environmental Plan 1993, (PLEP) Environmental Planning and Assessment Act 1979, ss 79C and 97 DATES OF HEARING: 25/08/2006 DATE OF JUDGMENT: 08/28/2006 APPLICANT: Mr I Hemmings, barrister, instructed by Mr A J Whealy, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Gadens Lawyers RESPONDENT: Mr A Pickles, barrister, instructed by Ms R Mirosevich, solicitor SOLICITORS: Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 28 August 2006 10326 of 2006 - Burley Katon Halliday Pty Limited v Pittwater Council Findings as to fact 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Pittwater Council (the council) to refuse a development application to erect a new split-level, three-storey dwelling with swimming pool and garage accessed from Whale Beach Road and associated landscaping works at Lot 4, DP 11909, being No 183 Whale Beach Road, Whale Beach. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the application requires further amendment before approval is granted. The land 4 The land is situated on the eastern side of Whale Beach Road. It has a splayed a splayed frontage of about 18m to Whale Beach Road and a 13.715m rear boundary to a reserve and the Pacific Ocean, the northern boundary is about 76.91m and the southern boundary is about 85.89m, giving an area of 1079.6m2. 5 The land is vacant except for some concrete retaining walls. There is a single mature tree located in the northwestern corner of the land. The land falls steeply down from Whale Beach Road with a change in level of about 22m, or a slope of about 30% over the length of the block and over the building platform. This last fact is significant since the council's planning controls are to be flexibly applied where the land over the building platform is of this slope or greater. 6 That portion of the land near the cliff top is natural bushland and its extent is shown by the red line angled at around 45o to the side boundaries, largely parallel to the front alignment as shown in Exhibit L and on the centreline of the land about 41m from the eastern boundary. Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 7 Under the provisions of the PLEP the land is zoned Residential 2(a) and is located in designated Area 1 where dual occupancy dwellings are prohibited, and the proposal is permissible with consent. It is also within exempt and complying Region 1(a). 8 Other planning controls include: · Draft Local Environmental Plan Pittwater 21, (DLEP21) and · Development Control Plan Pittwater 21, (DCP21); · Interim Geotechnical Risk Management Policy for Pittwater, (Risk Policy); · The Pittwater Estuary and Wave Action and Tidal Inundation Policy and Guidelines, (Tidal Guidelines); · Environmental Planning and Assessment Act, 1979, as amended; · State Environmental Planning Policy No 71 - Coastal Protection, (SEPP71). 9 Under the DCP21 the following clauses apply: · B6.l Access Driveways. · B8.5 Construction and demolition works in the public domain. · C1.4 Solar access. · C1.5 Visual privacy. · D12.2 Scenic protection. · D12.4 Height. · D12.6 Side and rear building line. · D12.8 Building envelope. The proposal and its history 10 Development application No N0697/05 was lodged with the respondent council on 2 November 2005 to erect a new dwelling house and swimming pool on the land. The proposal is described in plans prepared by Burley Katon Halliday Pty Limited, [Note: Exhibit A]. 11 The proposal is for a single dwelling over three levels, with a driveway linking with a garage at street level and a swimming pool on the eastern ocean side of the land. The land would be extensively re-landscaped and the native bushland on the ocean side is to be preserved. Notification 12 The original development application was advertised 14 days from 9 November 2005 to 23 November 2005 and notified to nearby owners and occupants and the council received four (4) submissions. 13 In respect of the Section 82A review that was advertised for 14 days from 26 April 2006 to 10 May 2006, the council received and two (2) submissions. The council's decision 14 By notice dated 2 March 2006, the council refused the original development application for the following reasons: 1 The proposed application is considered to be inconsistent with the provisions of Section B6.1 and B8.5 of Development Control Plan P21, in particular that the proposed turning area structure is not permitted by Council within Whale Beach Road Reserve. 2 The proposed application is considered to be inconsistent with the controls and outcomes of Section C1.5 visual privacy of Development Control Plan P21. 3 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.1 character as viewed from a public place of Development Control Plan P21. 4 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.2 scenic protection of Development Control Plan P21. 5 The proposed application is considered to be inconsistent with outcomes of Section D12.4 height of Development Control Plan P21 and therefore the variations clause should not be applied on merit. 6 The proposed application is considered to be inconsistent with the controls outcomes of Section D12.5 front building line of Development Control Plan P21. 7 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.6 side and rear building line of Development Control Plan P21. 8 The proposed application is considered to be inconsistent with the controls and outcomes of Section D12.8 building envelope of Development Control Plan P21. 15 The s 82A Review was considered at the Development Unit Meeting on 25 May 2006 and reported to the Environmental & Planning Committee on 5 June 2006. The council refused the application under s 82A on 6 June 2006. The hearing 16 The appeal was filed on 21 April 2006. 17 On site the Court heard evidence on behalf of the respondent council from: · Mr L Mawalagedera, owner of No 181 Whale Beach Road; and · Ms A Fesq, owner of No 179 Whale Beach Road. 18 The Court-appointed town-planning expert was Ms A McCabe. 19 Ms K Munn, Development Officer, Pittwater Council, prepared the statement of basic facts. The issues 20 On 8 August 2006 the council filed a statement of issues: Built Form 1 The height, bulk and scale of the proposed development is excessive. Particulars (a) Pittwater 21 DCP Clauses A4.10, D 12.4. The controls require a maximum height of 8.5 metres with a variation of up to 10 metres. The application proposes a maximum height of 9.8 metres from natural ground level of the southern elevation. (b) Pittwater 21 DCP Clauses D12.5 and D12.6. The proposal is not consistent with the outcomes of the front building line and side and rear building line controls as a result of non-compliance with the height and building envelope and the resulting overshadowing. (c) Pittwater 21 DCP Clauses A4.10 and D12.8. The southern elevation substantially breaches the building envelope. A major portion of the garage is in breach, a part of the rear portion of Level 2 is in breach, and part of the rear portion of Level 1 and the northeastern corner of the garage along the northern elevation is in breach. (d) The excessive built form extends approximately 18.8 metres beyond the rear alignment of No. 181 Whale Beach Road, does not respect the consistent built form along the waterway and is generally excessive in bulk and scale in comparison to the existing built form of No. 181 Whale Beach Road. (e) State Environmental Planning Policy No 71 - Coastal Protection Clauses 2(k), 8(d) and 8(f). The proposal compromises the natural scenic quality of the surrounding area. Solar Access 2 The proposal does not maintain a reasonable level of solar access to No. 181 Whale Beach Road. Particulars (a) Pittwater 21 DCP Clauses C 1.4 and D 12.8. The proposed development exceeds the building envelope and height requirements along the southern boundary resulting in unacceptable solar access. Visual Privacy 3 The proposed development as a result of the level and depth of the proposed terraces will affect the visual privacy of the proposed development, No 181 Whale Beach Road and No 185 Whale Beach Road. Particulars (a) Pittwater 21 DCP Clause C1.5. The proposed terrace at level 2 is higher then and located 4 metres from the boundary of 181 Whale Beach Road and enables overlooking of the lawn area of that property. This part of the issue can be dealt with by condition. (b) The proposed terrace at level 1 is located approximately 3.3 metres from No 185 Whale Beach Road allowing overlooking to and from the lower deck and mid-level deck. 21 The following emerged as the salient issues: · De facto rear building line and extension into bushland; · Overshadowing of the living room window of No 181 Whale Beach Road; · Overbearing effect on Nos 181, 179 and 185 Whale Beach Road; · Privacy. The evidence and findings De facto rear building line and extension into bushland 22 The eastern rear wall of the proposal respects the foreshore building line, (FSBL) as shown in Exhibit G. The FSBL is parallel to, setback at around 4m from the eastern boundary and largely follows the line of the cliff, as shown in the plans in Exhibit A. The eastern rear wall or façade of the enclosed portion of the proposal would be setback around 50.5m at the centreline of the land from the eastern boundary, and would not be in breach of this FSBL. 23 In his submissions, Mr Pickles stressed the importance of the 'de facto building line' and drew the Court's attention to the evidence of Ms McCabe, the Court-appointed town-planning expert in this respect. He submitted that the eastern façade of the enclosed part of the proposal should respect the 'red line' shown at right angles to the side boundaries of the land in Exhibit E. Thus, in order to comply with this red line the proposal would be setback around 5m further from the eastern boundary than proposed. The setback of this red line along the centreline of the land would be around 55.5m from the eastern boundary. This line was the preferred de facto building line and the eastern face of the proposal as suggested by Ms McCabe. There is a dispute between the parties as to the location of this de facto building line. 24 The applicant seeks approval for the plans in Exhibit A which positions the eastern façade of the proposal around 5m to the east of the red line suggested by Ms McCabe. This would position the applicant's de facto building line around 50.5m from the eastern boundary measured along the centreline of the land. The applicant also seeks to erect outdoor terraces and a swimming pool extending to the east a further 9m beyond that eastern face of the proposed eastern façade into bushland. In order to resolve this issue, I must decide how should it be determined and how much weight should be given to the 'de facto building line' under DCP21? 25 Under DCP21 a 'de facto building line' means: …the line of the façade of structures created by the location of structure on nearby properties. There may be separate de facto building lines for dwellings and decks, verandas, etc. See established building line. 26 'Established building line' under DCP21 means: …a line that is established by map (eg foreshore building line) or the de facto building line. 27 Thus under DCP21 the 'established building line' for the rear of buildings would be either the FSBL or the de facto building line. The council before the hearing has determined the FSBL by showing it on a map; however, the de facto building line if it applies must be determined in each individual case. 28 Under DCP21 and cl D12.6 the side and rear building line planning outcomes are to, [Note: Exhibit 1 p 141]: · achieve the desired future character of the locality; · 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); · a reasonable level of privacy, amenity and solar access is provided 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); and · Vegetation is retained and enhanced to visually reduce the built form, (En). 29 The controls for the minimum side and rear building line shall be: Land Side and rear building line (m) 2.5m to at least one side; 1.0m for the other side; 6.5m (rear) Land zoned Residential adjoining land other than a road, or adjoining land other than the Pacific Ocean or the Pittwater waterway (to which a foreshore building line applies) Dual occupancy: 2.5m to at least one side; 1.0m for other side*; 6.5m (rear) Multi-unit housing: See below Land zoned Business… Land zoned Business… Walls longer than 10m shall be setback at least 3m from the side boundary. Where the depth of the property is less than 20m, Council may accept a reduced building setback from the rear boundary. 30 Thus, as the FSBL applies to the land, the 6.5m rear setback has no operation. However, it would seem that all parties in this case, have proceeded under the assumption that in addition to the FSBL, a 'de facto building line' also applies to the land. 31 The relevant part of the desired character statement in DCP21 that relates to development of land within the Palm Beach Locality states in part: Buildings will be designed to address the street and/or waterway, integrate with the public domain, and be at a 'human scale'. Contemporary buildings will utilise façade modulation and/or incorporate shade elements, such as pergolas, verandas and the like. Building colours and materials will harmonise with the natural environment and not dominate it. The indigenous tree canopy vegetation will be retained and enhanced to assist development blending into the natural environment to provide …undergrowth for smaller animals, and to enhance wildlife corridors. The natural landscape, including rock outcrops, remnant bushland and natural watercourses will be preserved. 32 During Mr Pickles' submissions, I asked to be taken to references in the evidence and in DCP21 to the 'de facto building line'. Only extracts of DCP21 were tendered in evidence and I understand that the only references to this term are found in those extracts and in the definitions of the instrument. 33 Ms McCabe in her final report filed 14 August 2006 in Exhibit 5, stated that she was of the opinion: 6.23 As previously stated there exists a de facto building alignment for buildings along Whale Beach Road. (Courts emphasis added) 6.24… 6.25… 6.26…that there needs to be a greater regard to the alignment of No 181 Whale Beach Road. 6.27 It is acknowledged that there is a significant change in alignment of lots at the point of 183 Whale Beach Road. 6.28 The lot pattern alters from aligning perpendicular to Whale Beach Road to lot boundaries angled at approximately 45o to Whale Beach Road – with a portion of unused road reserve between the road alignment and actual property boundary. This is a constraint to the development site. 6.29 I previously stated that a more appropriate starting point for the alignment of building – above ground – is an alignment perhaps half way between the eastern point of No 185 and the alignment of 181 Whale Beach Road. The scale of any building past the alignment should strictly comply with both building envelope and setback controls. 6.30 I am still of the view that the scale and extent of the building when viewed from No 181 forward of the alignment, notwithstanding the difficulty of the sites slope, is excessive. 6.31. The scale to 185 Whale Beach Road is generally acceptable. 34 At my request, Ms McCabe depicted in green on the plan in Exhibit E, the 'de facto building line' she had in mind when she wrote para 6.23 above. This line follows the eastern face of No 181 Whale Beach Road and is an arc over the subject land and then proceeds to the north along the southeastern face of the verandas on No 185 Whale Beach Road. The proposed eastern wall or façade of the enclosed portion of the proposal would project towards the east around 8.5m past this line along the proposal's southern façade, around 5.0m towards the east past this line along the proposal's east/west centreline and coincide with the de facto building line at the northeastern corner. Thus the eastern enclosed part of the proposal would be in breach of this green de facto building line by varying amounts. 35 Ms McCabe took into consideration the practicality of designing a building to fit this green de facto building line. She sited a practical final rear building line around 5.5m to the east of the extension of the alignment of the eastern façade of No 181 Whale Beach Road (shown as a red line on Exhibit E) and slightly to the west of and parallel to the original rear building line that she had identified in her preliminary report, at around 6m from the extension of the line of the eastern façade of No 181 Whale Beach Road (shown as a blue line on Exhibit E). The enclosed portion of the proposal would extend around 5.0m to the east of that red de facto building line. 36 Also in oral evidence Ms McCabe agreed with Mr Hemmings that [Note: based on notes taken at the hearing]: · because of site constraints, the starting point for an assessment of the application and its impacts, is that there is no requirement for strict compliance with the planning controls; · beyond that, the numbers assist her in her assessment and then the context of existing buildings comes to the fore. In determining the setbacks from both boundaries and at the front and rear, there is a need to seek consistency in the alignment of buildings in the vicinity; · the FSBL is complied with numerically by a distance of at least 20m to 30m [assumed from the cliff top]; · in the context of nearby buildings there is a need to maintain the rear setbacks and the de facto building line should be maintained; · FSBL is set and in other scenarios [the applicant] could expect to build to it; · in determining the de facto building line there is a need to consider the position of the [eastern facades of the] dwellings on the basis of impacts on immediate neighbours; · the proposal would be set forward, around 10m further to the east, of No 181 Whale Beach Road; · the proposal would be around 10m to 11m behind or to the west of No 185 Whale Beach Road; · No 179 Whale Beach Road is about 10m behind No 181 Whale Beach Road; · consideration of the relationship between Nos 185 to 187 Whale Beach Road, further to the north, is not helpful because of the change in the subdivision pattern. 37 Ms McCabe agreed with Mr Hemmings that the contextual eastern building line relationship of nearby buildings is consistent as the orientation is parallel, however at No 185 Whale Beach Road she pointed to the fact that the subdivision [pattern] changes. 38 When Ms McCabe was asked by Mr Hemmings to exclude No 185 Whale Beach Road between Nos 185 to 179 the eastern façades of nearby buildings are consistent with steps of 10m the answer was "No, 185 is very different". 39 Mr Hemmings then asked Ms McCabe whether the positioning of the proposal is consistent within the context? She stated that she would "…not go that far". "I can't say it is consistent but it is consistent with the alignments of Nos 181 and 179 Whale Beach Road". 40 Ms McCabe did not agree with Mr Hemmings next question when he suggested that the proposal at No 183 Whale Beach Road is compliant in a contextual relationship. 41 Ms McCabe stated that there is no numerical control that applies under DCP21 to show where the eastern face of the proposal should be positioned and there is a need to take into consideration the eastern extension of the nearby houses and there is a need to change that line at the subject land as the block changes in direction. There is a need to take into consideration "…one to the other and how they fit with the dwellings on either side". 42 The applicant indicated on the plan in Exhibit E that if the dwelling on No 181 Whale Beach Road were transposed on the subject land the eastern face would coincide with the eastern face of the enclosed portion of the proposal. However, when one considers that within the footprint of the dwelling at No 181 Whale Beach Road there is a generous terrace on the eastern first floor leading off the living room and the proposal is fully enclosed up to that line a direct comparison is somewhat misleading. The proposal's terraces, decks and swimming pool would extend past the proposal's eastern façade a further 9m. 43 The placement of a de facto building line is not an exact science. The Court was presented with four possible positions for this line. Ms McCabe in her preliminary report suggest half way between two parallel and roughly north/south lines representing a continuation of the eastern façade of No 181 Whale Beach Road and the southern corner of the verandas on No 185 Whale Beach Road. A second position of this line was the red line proposed by Ms McCabe that was parallel to and removed by around 500mm to the west of the original blue line. A third position was that described by the arcing green line that Ms McCabe drew on the plan in Exhibit E during submissions and was the genesis of the red and blue lines. The fourth was that provided by the applicant suggested through a transposition of the plan of No 181 Whale Beach Road, that the proposal's eastern façade marks the de facto building line. 44 I am content, in the absence of specific information contained in DCP21 as to the means of locating the de facto building line for this land and having regard for the emphasis placed in DCP21 on the FSBL for properties facing the Pacific Ocean, to accept the applicant's suggestion that it is at the eastern façade of the proposal. This is more generous to the applicant than the equally valid locations of the de facto building lines proposed by Ms McCabe. However, following the logic of the applicant's own comparison, I would require some of the terraces to be included to the west of the de facto building line as they are at No 181 Whale Beach Road and at No 185 Whale Beach Road. This would require a redesign of the eastern part of the proposal to include at the bedroom level on the Ground Level plan at 38.75m AHD, a terrace where there is proposed a living room. On the Level 1 plan at 41.8m AHD part of the living room would be converted to an outdoor terrace of dimensions at least as large as the proposed terrace of 3300mm x 5870mm. The proposed terrace at 41.78m AHD at that level would be deleted from the plans. 45 Towards the end of submissions the applicant indicated that she was prepared to delete the proposed swimming pool at 37.23m AHD on the Ground Level plan to reduce the eastward extension of the proposal into the agreed bushland. The line of this deletion is shown in blue in Exhibit L. The Court discussed the possibility of repositioning the swimming pool on the bedroom terrace at 38.73m AHD, however, this was not taken up by the applicant, probably for the reason that if the pool were located there it would not receive much sunlight as it would be positioned under the terrace at 41.71m AHD above. 46 With these amendments to the plans, I am satisfied that there would be greater consistency of the de facto building line between Nos 179, 181, 183 and 185 Whale Beach Road than presently proposed. The redesign of the enclosed areas to accommodate the outdoor areas would require further consideration by the applicant and would be significant enough that they could not be conditioned. 47 The benefit of these further amendments of the plans would be that the bulk of the proposal would be lessened and the amenity impacts on neighbours would be reduced and less of the bushland would be disturbed and might be in time regenerated. Also, it would obviate the need to seek later approval for a swimming pool if that element were accommodated in the design at this time. 48 As a result the application in its present form must fail. However, should the applicant wish, I am willing to defer my decision until such time as the applicant has indicated whether she wishes to pursue a design that complies with these findings or whether she wishes me to proceed to final determination. Overshadowing of the living room window of No 181 Whale Beach Road 49 As mentioned at the hearing, I accept the evidence that the living room window on the northern elevation at the first floor of No 181 Whale Beach Road would receive two hours sunlight decreasing with time from 9.00am to 11.00am in midwinter as shown in the shadow diagrams in Exhibit C. At around 12.00midday in midwinter it would be in full shade. 50 The requirement of DCP21 is that: The windows to the …principal living area of adjoining dwellings are to receive a minimum of 3 hours of sunlight between 9.00am and 3.00pm on June 21 (that is at least 50% of the glazed area of those windows). 51 There was no dispute between the parties that the window to the living room of No 181 Whale Beach Road was a 'living area' window as defined. Mr Hemmings submitted that having regard for the open planning of No 181 Whale Beach Road and the fact that the living rooms of that dwelling receive light from the floor above, that sufficient light would be received in the living area and three would be a reasonable outcome. Mr Pickles submitted that the light obtained from the level above would be daylight and not sunlight and the proposal would not fully comply. 52 Under DCP21 variations to the solar access requirements are allowed where, [Note: Exhibit 1 p 133] · the orientation or shape of the lot precludes northerly orientation (20o west to 30o east of north; · there is adverse slope or topography; · there is existing vegetation obstruction development or fences that overshadow; or · other controls have priority, eg heritage and landscaping considerations. 53 Because of the steepness of the slope of the subject land, despite a breach of the building envelope control along the southern elevation, I consider dispensation is appropriate here. 54 Mr Hemmings agreed that should the Court require it, the applicant would be willing to pay for the cost of installing a skylight above the living room of No 181 Whale Beach Road to increase the amount of sunlight entering that room. 55 Mr Mawalagedera, owner of No 181 Whale Beach Road, did not immediately respond to that offer. However, if approval were otherwise contemplated, I would impose a condition allowing that offer to be carried into effect, if required. Overbearing effect on Nos 181, 179 and 185 Whale Beach Road 56 The terraces past the line of the eastern façade of the proposal would be built up on retaining walls and as significant architectural elements of the design would appear to be part of the building proper and add to the bulk of the building. I am satisfied that together with the proposal's enclosed area these terraces would create an overbearing effect on especially No 181 Whale Beach Road and to some extent on No 179 Whale Beach Road. However, the occupants of No 185 Whale Beach Road would not be so affected as they would be looking down onto the extensive terrace on level 1 and the terraces and swimming pool on the ground floor of the proposal. 57 Mr Mawalagedera and Mrs Fesq expressed concern for the overbearing effect of the proposal. Ms McCabe did not specifically refer to this aspect, however sought to setback the proposal further to the west, and this would reduce its visual impact. 58 If the proposal were further amended as described above, to fit a de facto building line at the eastern façade of the proposal and only extend forward of it at the ground level for the terrace with perhaps a swimming pool, the overbearing impacts would be lessened. Privacy 59 Ms McCabe considered that, "…[g]iven the nature of the sites and the open nature of terraces there is anticipated to be some degree of mutual overlooking". 60 Mr Mawalagedera was concerned for the loss of privacy likely to occur due to overlooking from the proposed terrace at Level 2, the living room on Level 1 and the living room and terraces and swimming pool on the Ground Level of the proposal. 61 The applicant had reduced the size of the terrace at Level 2 from 34m2 to 19m2 in line with Ms McCabe's preliminary views in Exhibit 4. The applicant, if required, was also willing to make further amendments to the design of this terrace. One such amendment would be to setback the southern handrail so that people standing on that terrace would have a restricted view down into the lawn area of No 181 Whale Beach Road. Another suggestion was that a privacy screen might be installed along the southern side of that terrace to the same effect. Given the reduction in size of this terrace and its central location a screen would suffice and could be conditioned. 62 The applicant proposed 'aluminium framed fixed glazing with external retractable aluminium louvres' to the southern windows of the living room on Level 1 where people within that room might overlook the rear lawn area of No 181 Whale Beach Road. The applicant proposed 'aluminium framed fixed glazing with external fixed aluminium louvres' to the southern windows of the dining room on Level 1 to ensure there would be no overlooking from that part of the proposal. The applicant proposed 'aluminium framed sliding glass doors with external retractable aluminium Venetian blinds' to Bedroom 4 on the Ground Level. No louvres or blinds were proposed to the stairs abutting the living room on the Ground Level. 63 The applicant was willing to submit to a condition: The plans shall be amended such that for south facing windows of Bedroom 4 and the stairs abutting the proposed living room on the Ground Floor Level, and the dining room and stair on Level 1 are to be screened by fixed vertical angled louvres set at 45 degrees in plan and spaced such that no view is afforded to the lawn area of the No 181 Whale Beach Road or as otherwise agreed in writing between Mr Mawalagedera and the applicant . 64 This was acceptable to Mr Mawalagedera and would completely eliminate overlooking of the lawn area of No 181 Whale Beach Road. I have added the words in bold to allow some flexibility in arriving at the overlap of the vertical louvres and the extent of overlooking of the lawn area. 65 Mrs Fesq expressed satisfaction with this screening and sought to reduce the visual impact of the proposal as it extended past the line of the eastern elevation of No 181 Whale Beach Road, by endorsing the colour scheme proposed by the applicant that the building and screens be mid greys and the building be screened by landscaping. Adjournment 66 For the above reasons, the appeal is adjourned to permit the applicant to further amend the proposal, so that: (a) at Level 1 the de facto building line is fixed at the eastern façade of the proposal around 50.5m from the eastern boundary measured along the centreline of the land; (b) at Ground Floor Level the de facto building line is fixed at the eastern façade of the proposal around 50.5m from the eastern boundary measured along the centreline of the land and extends 4800mm to the east of that line at or below level 38.73m AHD; (c) development is not to occur past the line of the terrace around 45.7m from the eastern boundary measured along the centreline of the land described in (b) above; (d) at Level 1 a terrace of similar dimensions to that proposed of 3300mm x 5870mm is to be located behind to the west of the de facto building line at that level described in (a) above; (e) at Ground Floor Level a terrace with perhaps a swimming pool is to be located behind to the west of the de facto building line at that level described in (b) above. (f) Level 1 and the Ground Floor Level is be redesigned as described in subparas (d) and (e) above and plans and elevations submitted to the council and the Court by close of business on Friday 29 September 2006 or before as agreed. I consider that as the impacts of the proposal as amended would be less than those of the proposal before the Court, no further formal advertising is required however a copy of the further amended plans is to be provided to Mr Mawalagedera and Mrs Fesq for their comment. (g) The matter is to be set down for callover on 3 October 2006 or before as agreed, for a hearing before the Commissioner to be arranged. Conditions 67 The conditions will be those in Exhibit 7 as amended. Condition B36 concerning screening of the southern windows will be added if required. Orders 68 Following amendments of the plans satisfactory to me, my orders will be: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No N0697/05 lodged with the respondent council on 2 November 2005 to erect a new dwelling house and swimming pool, at Lot 4, DP 11909, being No 183 Whale Beach Road, Whale Beach, is approved subject to Conditions A1 to E14 and advices to G7 in Annexure A. 3. The exhibits except for Exhibits A, B, C, D, E, F, G, H, J, K, L, 7, 8 and further amended drawings are returned. S J Watts Commissioner of the Court sw The consequence of these findings as to fact is that provided the applicant addresses the matters in para 66 above the Court will issue development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be 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/ 09/10/2006 - Page break after cover sheet - Paragraph(s) N/A 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.