Land and Environment Court of New South Wales CITATION : Grodzicky v Ryde City Council [2005] NSWLEC 293 APPLICANT Mark Grodzicky PARTIES : RESPONDENT Ryde City Council FILE NUMBER(S) : 10001 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Visual impacts from waterway - neighbour amenity - boatshed - outbuilding Ryde Planning Scheme 1979 State Environmental Planning Policy 56 - Sydney Harbour and Foreshores LEGISLATION CITED: Sydney Regional Environmental Plan 22 - Parramatta River Parramatta River and Sydney Harbour Development Control Plan Ryde Development Control Plan 17A - Dwelling Houses and Duplex Buildings DATES OF HEARING: 29/04/2005 DATE OF JUDGMENT: 06/03/2005 APPLICANT Mr S Klinger, solicitor RESPONDENT LEGAL REPRESENTATIVES: Mr P Clay, barrister SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 3 June 2005 10001 of 2005 Mark Grodzicky v Ryde City Council JUDGMENT 1 This appeal relates to development application No. 796/2003 which is for a partly single, partly two-level building containing a rumpus room and a boat storage area together with decks and an attached swimming pool at 60 Pellisier Road, Putney. There is a detached dwelling house on the site and the proposed building is detached from this house. A large Port Jackson fig tree ("the fig tree") on the site is to be retained. 2 The site has an area of 1,111 sq m including a 7.83 m wide element of 369 sq m that extends down to Morrison's Bay in the Parramatta River ("the waterway"). It is in the fairly steep area of this part of the site where the proposal is to be located. 3 The proposed building is to be set back 25 m from Morrison's Bay (the eastern boundary), 1.5 m from the northern side boundary and 2.3 m from the southern side boundary. Landscaping is to be provided in these setback areas. Statutory provisions 4 The site is situated in the Residential A zone under the Ryde Planning Scheme 1979 ("the planning scheme") in which zone the proposal is permitted with development consent. Other relevantly applicable planning controls comprise: - State Environmental Planning Policy 56 - Sydney Harbour and Foreshores ("SEPP 56"). - Sydney Regional Environmental Plan 22 - Parramatta River ("SREP 22"). - Parramatta River and Sydney Harbour Development Control Plan ("the Parramatta River DCP") - Ryde Development Control Plan 17A - Dwelling Houses and Duplex Buildings ("DCP 17A") 5 In effect cl 20 of SREP 22 requires that a consent authority must not consent to the carrying out of development unless it is satisfied that the proposed development is consistent with its relevantly applicable objectives. Also various matters are to be considered such as the appearance of the development from the waterway, impacts on flora and fauna habitats and impacts on views to and from the waterway. 6 Similarly cl 34 of the planning scheme in effect requires that the probable aesthetic appearance of the proposed building when viewed from the waterway be taken into consideration. Advertising and council's decision 7 The application was advertised on two occasions in different forms resulting in a total of nine submissions including three objections and five letters of support. Two of the objections came from the adjoining properties to the north and south. Matters of concern raised in the objections include: * Excessive height and bulk and inappropriate appearance when viewed from adjoining properties and from the waterway. * Loss of outlook and loss of landscaped area. - Incompatibility with adjoining buildings and overcrowded appearance when viewed from the waterway and foreshore. - Overshadowing and loss of privacy. * Noise impacts associated with the use of the structure and likely noise associated with proposed construction works including excavation of rock. 8 Additional detailed objector evidence was given on site by the two adjoining neighbours: * Mr J & Mrs S Balestriere of 64 Pellisier Road, Putney * Mr T & Mrs M Diep of 60A Pellisier Road, Putney 9 Earlier versions of the proposal were not supported by council and consultant personnel. A revised proposal was subsequently recommended for approval. However, council decided to refuse the application for reasons relating to the following: * The proposal would have adverse impacts on the scenic and visual qualities of the foreshore; * The proposal would have an excessive bulk and size and would be out of character with nearby dwelling houses; * The proposal would result in unacceptable overlooking, loss of privacy and noise impacts; * Non-compliances with DCP17A, SREP 22 and the Parramatta River DCP. The evidence 10 Expert evidence was provided for the assistance of the Court by: * Mr R Moore - heritage consultant * Mr S Gatenby - arborist * Mr I English - arborist * Mr S.Harding – Court-appointed town planner. The issues 11 The statement of issues details issues relating to the above-mentioned statutory provisions, amenity impacts on neighbours, trees, landscaping and heritage. 12 The existing house on the site is listed as an item of the environmental heritage under the LEP. Mr Moore considered the proposal in this context and concluded that whilst there would be some negative impact the heritage values of the house will not be adversely affected. I agree with Mr Moore for the reasons he gives in his report and letter dated April 2005. 13 The council proposes to list the fig tree in its Significant Tree Register for protection. Mr Gatenby and Mr English provided a joint report and agreed that the tree is a special feature on site and is worthy of protection. They have provided a number of agreed conditions for the retention and protection of the tree. These conditions are incorporated into the draft conditions of consent and I agree with their inclusion. 14 Mr Clay submitted on behalf of the respondent that the principal issue in the case involves the nature of the proposal and its impact on the waterway in the context of the relevant planning controls. Whilst he acknowledged that the impacts of the proposal on the neighbours should be taken into consideration the suggested impacts were not determinative of the application. Amenity impacts 15 Mr Harding considered at length the possible amenity impacts that might result from the proposal upon the two neighbouring residences and concluded that the amended proposal overcomes any such privacy concerns. Taking into account the setbacks together with the nature of the building openings and fencing and the resulting distances of separation, aural and visual privacy aspects are within reason. 16 Here I agree with Mr Harding and accept that any noise likely to be generated from the proposal will not be other than what can normally be expected in a typical residential environment. Whilst I recognise the particularly sensitive family situation described to me by Mr Diep this cannot be determinative of this application. Conditions are to be placed on the consent, which restricts the hours when work on the proposal can take place. Should these hours not be complied with or if any noise is generated on the site that does not comply with the relevant applicable noise laws these matters can be dealt with in the appropriate manner. 17 I also agree with Mr Harding in relation to visual privacy. For the most part there will be little resulting overlooking and what overlooking will occur will be of the kind that is generally not uncommon in this locality where properties seek to benefit from the amenity and outlook provided by the waterway. Impacts on the waterway 18 SEPP 56 contains guiding principles in cl 7 that, in effect, require consideration of the scale and character of the proposal particularly when viewed from the waterway and its compatibility and sympathy with the character of the surrounding foreshores. 19 Clause 2(2)(e) of SREP 22 contains applicable visual environment objectives which in essence involve: the protection and enhancement of the landscape and scenic qualities of the Parramatta River; the adequate consideration of visual impacts of development; and the preservation of natural foreshores. 20 Section 3 of the Parramatta River DCP deals with the different landscape characters in and around Sydney Harbour and its tributaries and includes this locality in Landscape Character Type 14. This character is described as comprising mostly detached residential development on the upper slopes and boatsheds and wharves along the foreshore. New development must consider the protection of the visual elements such as native vegetation, vegetation around dwellings and the maintenance of the existing density and spacing of development. The performance criteria associated with Landscape Character Type 14 include consideration of cumulative and incremental effects of urban development, protection of the landscape qualities of the foreshore and the provision of landscaping between buildings. 21 Under the Parramatta River DCP, a boatshed is defined as a building or other structure used for the storage and routine maintenance of a boat. Despite being set back 25 m from the foreshore the proposal appears to fall within this definition. The objectives of relating to boatsheds require the minimisation of visual impact from the waterway and compatibility with the surrounding landscape and built form. The particular requirements for boatsheds include: a one-storey maximum height; maximum plan dimensions of 6 m by 3.7 m; and a maximum roof pitch of 35°. The proposal does meet these requirements. However, as I later conclude the proposed building meets the associated objectives which are to minimise visual impact from the waterway and to ensure compatibility with the surrounding landscape and built form. 22 The relevantly applicable objectives of SEPP 56 and the Parramatta River DCP must be considered in dealing with this application. However, leaving aside the definition I agree with Mr Harding and do not accept that this proposal comprises a boatshed. I formed this opinion relying on: the distance that the building is set back from the waterway; its positioning in relation to existing adjoining dwelling houses; and its incorporation into a building used for habitable purposes. I am sure that the authors of the boatshed definition would not have intended that it be applied so as to include any part of a dwelling house that is used for the storage and maintenance of a boat. For example if a boat were to be stored in a garage, which has no direct access to the water, does this mean that the garage is a boatshed? 23 Instead I agree that the proposed building comprises an outbuilding under s 2.8 of DCP 17A. The performance criteria objectives for outbuildings require that such buildings should be secondary to the existing dwelling and have minimal impact on surrounding development. When viewed from a public place the building should be compatible with the character of the existing dwelling and should enhance the visual amenity of the area. The applicable design standards set: a maximum floor area of 50 sq m; a maximum of one storey; and a maximum height of 4 m from the ridge of the roof to ground level below. The height limit can be exceeded in instances where topography dictates this, subject to the absence of adverse impacts on the amenity of existing residential development. In addition the design, construction and materials are to be compatible with the existing dwelling on the land. 24 The proposed building exceeds the single storey height limit when viewed from the east and from the waterway, but because of the extent to which the building is excavated into the hill slope it otherwise presents as a single storey building. Building height is the distance measured vertically from any point on ceiling of the topmost floor of the building to the natural ground level immediately below that point. Applying this definition to Section AA on the plans, a very small portion of the proposed building at its eastern end exceeds the 4 m maximum. 25 The definition of gross floor area in DCP 17A includes external enclosing walls and on this basis the proposed building has an area of 60 sq m, 10 m in excess of the applicable standard. 26 These various controls together have the effect of requiring that careful consideration needs to be given to the visual impact of the scale and character of the proposed building on the foreshore and the waterway. It is also relevant to consider the proposal in the context of the scale and character of surrounding development. 27 Mr Harding observed that the existing development along the foreshore predominantly comprises residential dwellings of significant size and built relatively close to adjoining boundaries. Property widths vary, resulting in a variety of dwelling widths and building forms. He thus notes that development along this part of the foreshore is eclectic, displaying no particular size, style or form. The number of scattered boatshed structures adds to this mix. He notes the existence of the fig tree on the site and the mangroves in the waterway adjoining the site and considers the proposal to be acceptable both with, and without this vegetation. 28 Mr Harding was of the opinion that the proposed building being positioned essentially on the building alignment created by existing adjoining dwellings would be appropriately sited. Whilst the proposed building will present as two storeys in height, the adjoining dwellings present as being at least three storeys in height and as a consequence the proposed built form will not be inconsistent with existing development. He also noted that the materials of construction are appropriate being consistent with the existing dwelling. Moreover these materials would be a distinct improvement over some of the less sympathetic developments nearby. 29 In dealing with Landscape Character Type, 14 Mr Harding rejects any suggestion that this would prevent the construction of an infill development on this land. He deals with the site of the proposed building as a section of vacant land between two existing dwelling houses. He recognises the relative narrowness of the site but it is not so narrow as to cause the proposed development to be inconsistent with other development in the area. The proposed setbacks and landscaping contribute to the character of the development and ensure that the outcome is consistent with the density and spacing of existing development. He acknowledges that the scale of the development is less than that of surrounding development but would nevertheless not be out of context. Conclusions 30 In company with the representatives and the experts the Court inspected the site from the waterway. Ignoring existing vegetation the proposed building will be apparent when viewed from a reasonably wide arc. In this context I accept the evidence of Mr Harding that the proposal will sit comfortably between two larger buildings. Taking into account the proposed side setbacks and considering these in comparison with other typical distances of separation between other buildings in this locality I accept that the built form rhythm will not be adversely affected by this proposed building. I do not accept any suggestion that the present gap between the adjoining houses as formed by the subject site needs to be retained to maintain existing character. 31 The retention of the existing fig tree and the provision of additional landscaping in the side setback areas will add to the compatibility of the proposed building in its setting. The existing mangroves in the waterway adjacent to the site will not be affected by this proposal and will reduce opportunities to observe the proposed building. 32 In all of the circumstances I am satisfied that the application satisfies the various requirements of cl 7 of SEPP 56, cll 2 and 20 of SREP 22 and cl 34 of the planning scheme especially in terms of scale and character, impacts on landscape and probable aesthetic appearance the proposed building will also meet the performance criteria of DCP 17A for outbuildings and in these circumstances I am not concerned at the non-compliances with the building height and floor area standards 33 It is therefore the decision of the Court that the appeal should be upheld and conditional development consent granted. Orders 34 The orders of the Court are therefore: 1. The appeal is upheld 2. Development application No. 796/2003 for a two-level building containing a rumpus room and a boat storage area together with decks and an attached swimming pool at 60 Pellisier Road, Putney, is determined by the granting of development consent subject to the conditions in Annexure "A" hereto. 3. Exhibit A is retained 4. No order as to costs ________________ T A Bly 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.