Land and Environment Court of New South Wales CITATION : John Douglas Head v Pittwater Council [2006] NSWLEC 429 APPLICANT: PARTIES : John Douglas Head RESPONDENT: Pittwater Council FILE NUMBER(S) : 10638 of 2005 CORAM: Watts C at 1 Development Application :- Garage setback KEY ISSUES: Side setback and building envelope Tree retention. Pittwater Local Environmental Plan 1993, (PLEP) Pittwater 21 Development Control Plan, (DCP21) LEGISLATION CITED: Draft Pittwater 21 Local Environmental Plan, (DDCP) Development Control Plan 15-Heritage Conservation Areas, (DCP15) Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 12/04/2006 DATE OF JUDGMENT: 07/19/2006 APPLICANT: Mr G E Underwood, barrister, instructed by Mr K Heasman, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Ken Heasman, Solicitor RESPONDENT: Ms G Furness, barrister, instructed by Ms J M Sutherland, solicitor SOLICITORS: Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 19 July 2006 10638 of 2005 - John Douglas Head v Pittwater Council Judgment Introduction 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Pittwater Council (the council) of a development application to demolish the existing structures and to erect a new 'pavilion style' two-storey dwelling house at Lot 85, DP 8394, being No 11 Marine Parade, Avalon. 2 On the morning of the hearing I heard from local residents on-site. The hearing was continued, in the afternoon, in the 'Environment Centre' at Lake Park Road, Narrabeen. 3 I have concluded that the application is generally satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979, and approval is granted. 4 After the hearing, I urged the parties to join the Registrar General to confirm the boundaries of other lots on the southern side of Marine Parade in the vicinity of the land. However, this suggestion has not been taken up. Thus, I have decided to determine the merits of the application on the basis that the land within the undisputed Torrens title boundaries. The land 5 The land is situated on the southern side of Marine Parade between Tasman and Harley Roads with frontage to the northern end of Avalon Beach. The land has an area of 993.15m2 and has an eastern boundary of 82.295m; a western boundary of 79.555m; a northern boundary to Marine Parade of 12.305m; and a southern boundary to Avalon Beach rocks of 12.24m. 6 The land slopes down from north to south with a grade of about 9.2% over the building platform. The land also slightly falls down from the east to the west. 7 Nearby structures comprise single-storey and two-storey, single occupancy dwellings with associated car parking. 8 Two vigorous and healthy Norfolk Island Pines of a height of about 20 metres and spread of about 8 metres are growing on the land near the eastern boundary and towards the Marine Parade frontage. The existing dwelling on the subject land is a single-storey weatherboard single-occupancy dwelling with sheet metal roofing and associated car parking. Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP) 9 Under the provisions of the PLEP the land is zoned Residential 2(a), (Residential "A") and the proposal is permissible with consent. Pittwater 21 Development Control Plan, (DCP21) 10 Part A4.1 of DCP21 identifies the context and desired character of the Avalon locality within which the land is located. The character is described as primarily low-density, with one and two-storey residences in a natural landscape setting. The desirable elements include the low-density character, the predominant scale and setback of existing development, development that addresses the street, integrates with the public domain, and is at human scale. 11 Under DCP21 the setback to any garage at the front of the land is required to be 6.5m. The side setbacks under DCP21 vary and one side of a dwelling is to be a minimum of 1m and on the other 2.5m. The maximum height of any development under DCP21 is to be no greater than 8.5m and any building is to be contained within a building envelope commencing 3.5m above the side boundary and sloping over the land at an angle of 45 degrees. Draft Pittwater 21 Local Environmental Plan, (DDCP) 12 Regard must be had for the DDCP. Development Control Plan 15-Heritage Conservation Areas, (DCP15) Regard must be had for the DCP15. State Environmental Planning Policy No 71, (SEPP71) 13 SEPP71 controls the environmental impact of development when viewed from waterways. The proposal and its history 14 Development application No N0027/05 was lodged with the respondent council on 5 January 2005, to erect a new dwelling on the land. The proposal comprises two pavilions joined by a single-storey section. In the single-storey link, that frames the central courtyard, is the kitchen and other service rooms. 15 On the ground floor is proposed a lounge room; dining room; bathroom, kitchen; games room; laundry; and recreation room. On the first floor are three bedrooms; two bathrooms; a study and three terraces. A basement store is located under the ground floor dining room. 16 A detached double garage with storage facilities is proposed abutting the northern (front) and eastern boundary. 17 The proposal would require the removal of the southernmost Norfolk Island Pine, T4. Notification 18 The application was notified to nearby owners and occupants between 3 February 2005 and 17 February 2005, and the council received ten (10) submissions. The application was also referred to the council's natural resources and engineering offices on 3 Feb 2005. 19 A site meeting, attended by the applicant, was held on 24 March 2005, and on 8 July 2005, the council requested height poles to be erected to show the height and bulk of the proposal. 20 The council received amended plans on 2 September 2005. The amendments included: · reduction in the building footprint and height; · house relocated 2.5 metres to the north away from the water front; · provision of skillion roof form on both pavilions; · an increased setback to the first floor of the southern pavilion; and · changes to fireplace and chimney. 21 These amended plans were notified to adjoining property owners between 5 September 2005 and 19 September 2005 and were referred to the council's natural resource and engineering officers on 8 September 2005. 22 However, on 17 October 2005, the applicant's solicitor indicated that the applicant would be relying in these proceedings, on the original plans lodged with the development application on 5 January 2005. Despite this communication, when the matter came to the Court the Issue 3 architectural plans in Exhibit A were relied upon by the applicant. 23 Further amended architectural plans, known as Issue 4, were submitted after the hearing. It is these plans for which consent is sought. These plans adjust the level of the garage floor upwards to avoid the roots of the remaining Norfolk Island Pine, and reposition the sea wall. The council's decision 24 The application was considered by the development unit on 28 July 2005 and was recommended for refusal at the council meeting to be held on 15 August 2005. 25 An in-house meeting, with the applicant present, was held on 3 August 2005 to discuss possible design alterations. The environment and planning committee deferred the application at the request of the applicant at its meeting of 15 August 2005. 26 The development unit considered an amended application on 22 September 2005 and this was recommended for refusal to the environment and planning committee of the council. At its meeting of 26 September 2005, the council as a whole refused the application for the reasons reflected in the issues. The hearing 27 The appeal was filed on 24 June 2005. 28 On behalf of the council evidence was given by: · Mr S Doyle, resident of No 19 Marine Parade, Avalon; · Mr C Esterman, resident of No 6 Marine Parade, Avalon; · Ms A Coventry, owner of No 8 Marine Parade, Avalon and principle of Stanley Ball Limited; · Mrs S Davis, resident of No 17 Marine Parade, Avalon; · Mrs M Breckenridge, owner of No 15 Marine Parade and resident/ part owner of No 13 Marine Parade. 29 The Court-appointed expert was Ms D M Laidlaw, consultant town planner. 30 Mr G Walsh, Development Officer, Pittwater Council, who also gave evidence, prepared the statement of basic facts. The issues 31 On 20 October 2005, the council filed an amended statement of issues. Owner's consent 1. Development consent cannot be granted without the consent of the owner of No 13 Marine Parade to the demolition of the existing garage, which is located on both Nos 11 and 13 Marine Parade. Front Building line 2 The garage is too close to the street and presents an excessive bulk and impacts adversely on the streetscape of Marine Parade including an inability to provide adequate landscaping. Particulars (a) The application fails to meet the outcomes and numerical provisions of section "D1.8 Front building line" of Pittwater 21 Development Control Plan. The control requires a 6.5m setback to garages. The proposed garage is set back 0.7m to the front boundary. Side setback and building envelope 3 Inadequate side boundary setbacks are provided and as a consequence views presently available from the public domain and private properties will be lost and the bulk of the development is exacerbated contrary to the desired future character of the Locality. Particulars (a) The application fails to meet the outcomes and numerical provisions of section "D1.9 Side and rear building line" of Pittwater 21 Development Control Plan. The control requires an eastern side setback of 1.0m and a western side setback of 2.5m. The proposal offers a nil to 1.0m eastern setback and a nil western setback. (b) The application fails to meet the outcomes and numerical provisions of section "D1.11 Building envelope" of Pittwater 21 Development Control Plan in terms of the eastern and western elevation. (c) The control requires the proposed development to fit within a prescribed envelope. The proposed development breaches the envelope control by up to 2.0m on the eastern and western elevation. (d) The application fails to meet the outcomes and numerical provisions of section "D1.1 Character as viewed from a public place" of Pittwater 21 Development Control Plan. (e) The application fails to meet the outcomes and numerical provisions of section "D1.4 Scenic protection" of Pittwater 21 Development Control Plan. (f) The control requires that development "shall minimise any visual impact on the natural environment when viewed from any .... road....". (g) The application fails to meet the outcomes and numerical provisions of section "C1.3 View Sharing" of Pittwater 21 Development Control Plan. Landscaping 4 The location of the proposed garage has the potential to threaten the viability of 2 existing Norfolk Island Pines. The application has not demonstrated how these trees can be retained. Particulars (a) The application fails to meet the outcomes and numerical provisions of section "C1.1 Landscaping" of Pittwater 21 Development Control Plan. SEPP 71 5 Whether having regard to clause 8 of State Environmental Planning Policy 71 - Coastal Protection ("SEPP 71") development consent should be granted. Particulars (a) The subject property is contained within the "coastal zone" and within a sensitive coastal location as defined in SEPP 71 as a result of gazettal of coastal zone maps on 18 November 2005; (b) Clause 8(a), (b), (c), (d), (e), (f) and (j) of SEPP 71. 32 The following emerged as the salient issues: · Garage setback; · Side setback and building envelope; · SEPP71, and · Tree retention. The evidence and findings Torrens Title 33 Mr Underwood, for the applicant, submitted at the on-site hearing that the applicant has obtained indefeasible Torrens title to the land the subject of this appeal. The subject land is apparently displaced around 700mm to the east from its historical fenced boundaries. The consequence of this displacement is that other parcels of land to the east in Marine Parade will also be displaced to the east by a similar distance and a 700mm-strip of a council owned right-of-way, at the end of the row further to the east, will be consumed. 34 Several local residents whose land is situated to the east of the subject land, were concerned that if their parcels of land were displaced 700mm from the historical fenced boundaries, adverse environmental impacts might result 35 As Mrs Breckendrige who has interests in Nos 13 and 15 Marine Parade, indicated, at the site inspection, part of her ensuite within No 13 Marine Parade, might fall into Mr Head's land, and she would lose a useable part of the garage that formerly straddled the common historical fenced boundary. It was obvious to those on the site inspection that two of the Norfolk Island Pines near the common historical fenced boundary would now fall within the subject land. 36 As Mrs Davis, of No 17 Marine Parade, stated on the site inspection, if her western fence line were relocated 700mm closer to her house, the side yard would be made almost inaccessible, and if a new fence were eventually erected on the projected 'title' boundary, sewer and stormwater pipes presently found within the side yard of her property might need to be moved. 37 Mr Doyle of No 19 Marine Parade also was concerned about the progressive movement by around 700mm of properties in Marine Parade and the physical consequences that might flow as a result. 38 Nearby residents told the Court, that the Land and Property Information Services had never informed them of any proposal to progressively displace the lots on the southern side of Marine Parade. 39 Although the question of the title of the subject land was not in issue in this appeal, after the hearing had concluded, I called upon the parties to join the Registrar General and to clarify the title boundaries for those lots along the southern side of Marine Parade and to inform nearby neighbours and perhaps take into account their interests. Despite the Court having power under s 38(2) Land and Environment Court Act 1979 to inform itself on any matter, in such manner as it thinks appropriate, and under s 39A to join parties in s 97 hearings, as there is no dispute between the parties as to the correct title of the land, I have decided to deal with the particular application before me, on its merits. The question of the title boundaries of nearby properties does not have any direct relevance to the application before me. 40 I would have preferred a representative of the Registrar General to give evidence and for that representative to prepare a block plan for all lots on the southern side of Marine Parade from No 1 to around No 23 Marine Parade and including the council-owned right of way. However, this I have not achieved. Also, I would have hoped that the block plan would have been publicly advertised and for local residents to be afforded the opportunity to make submissions in regard to title boundaries. 41 It will now be a matter for the local residents to approach the Registrar General to confirm the boundaries of their properties, as was done by the applicant and which resulted in the 700mm displacement of the applicant's boundaries. By this process, all of the lots will have their boundaries confirmed rather than the present unsatisfactory state where some have been, but others have not. Garage setback 42 Under cl D1.8 - front building line of DCP21, the garage is required to be setback 6.5m from the front boundary. The underlying purpose of this setback is to provide a landscaped front yard that would screen the front of the dwelling. The garage would be set back a minimum of 400mm to the front boundary, [Note: Exhibit J further amended plans]. 43 The height of the garage above ground level at the reduced setback would range from 1.9m on the western side of the garage to 1.2m on the east. [Note: Exhibit J, Issue 4 architectural plans now showing the top of the garage roof parapet at 13.9m AHD]. A screen of vegetation is proposed in the variable setback of 400mm to 1290mm of the garage from Marine Parade. I am satisfied that this vegetative screen would ameliorate the bulk of the low garage wall when viewed from the street and that the one Norfolk Island Pine retained in the front garden between the southern elevation of the garage and the northern elevation of the dwelling would soften the visual impact of the dwelling from viewpoints in the street. 44 The extent of disturbance of the land to provide for car parking would be around 6m depth over its width of the land frontage of 12m or around 72m2. A similar land area of the front yard would be disturbed were the garage to form part of the house, as was the case for the development of No 17 Marine Parade this is as a result of the driveway being lengthened. Thus, I am satisfied that there would be little benefit in changing the position of the garage in order to increase landscaped area. Also, behind and to the south of the proposed garage, the applicant intends to maintain one of the existing Norfolk Island Pines and to landscape the space between the free standing garage and the front of the dwelling. The benefit to the applicant of this arrangement would be that the proposed dwelling's north-facing front wall might be utilised for habitable space rather than a garage. This meets the council's passive solar design objectives. In the circumstances of this case, I am satisfied that there would be no significant disadvantage to the public by positioning the garage as proposed and there would be a significant private benefit. From viewpoints in the street the landscaping between the garage and the dwelling would be visible and at least one pine tree would be retained and would visually soften the development. 45 Ms Laidlaw, the joint expert, carefully assessed this issue and concluded that the applicant had provided sufficient justification for the position and height of the garage in the Issue 3 architectural plans, subject to a condition regarding the screen landscaping on the frontage of the land in front of the garage. The applicant accepted this condition. The Issue 4 architectural plans in Exhibit J change the position and the elevation of the garage marginally, with the purpose of better protecting the existing Norfolk Island Pine T6. 46 I would not refuse the application for reason of the reduced setback of the garage. Side setback and building envelope 47 Under cl D1.9 - side and rear building line of DCP21, one side setback, in this case on the eastern side, would be required to be 1.0m and the western side setback would be required to be 2.5m. The proposal provides a nil to 1.0m eastern setback and a nil western setback on the ground floor and on the upper level the setback for the southern pavilion would be 2.1m and the northern pavilion on the western side would be 1.8m. On the eastern side the setbacks for both pavilions is of the order of 1m to the Torrens titled common boundary with No 13 Marine Parade. The evidence suggests that the southern pavilion on the western side would be the pinch point of the view corridor from Marine Parade. 48 No 9 Marine Parade was approved and constructed with an eastern setback, to the historic fenced boundary with No 11 Marine Parade, of 1.5m and to the Torrens titled common boundary of effectively 2.2m. The proposed western setback of the southern pavilion on the subject land would be 2.1m to the title boundary. Ms Laidlaw suggests that this should be increased by 100mm to 2.2m to match the setback of No 9 Marine Parade. 49 However, the proposed distance between the existing eastern wall of No 9 Marine Parade and the western wall of the southern pavilion of the proposed new dwelling would be around 4.3m comprising setbacks of 2.2m and 2.1m from the title boundary. This would be a greater separation between the two dwellings than would be achieved with the original setback No 9 Marine Parade of 1.5m plus the allowable setback on No 11 Marine Parade of 2.5m or a total of 4.0m. So, by this calculation the view slot on the western side of the southern pavilion of the proposal would more generous than achieved by a complying setback off the historic fenced boundary between Nos 9 and 11 Marine Parade. Thus, I am satisfied the proposed setback of 2.1m from the Torrens titled boundary would provide a more than reasonable separation and view slot between these two buildings. However, there is the possibility that No 9 Marine Parade might be extended on the eastern side. But much depends on the controls in place at the time. 50 The proposed setback of the northern pavilion of 1.8m from the western title boundary would yield a setback from the historic fenced boundary of 2.5m. 51 Thus I am satisfied that the view slot between the proposed new dwelling on No 11 Marine Parade and the existing building on No 9 Marine Parade would be more than adequate maintain a view of the water beyond from viewpoints in Marine Parade and dwellings opposite. I would not require the proposed southern pavilion to be setback on the western side by a further 100mm as suggested by Ms Laidlaw. I would not refuse the application for any deficiency of setback on the western side. 52 On the eastern side of the land the view slot is obscured by the Norfolk Island Pine T6 and on that side would apparently comply with the requirements of DCP21 with a minimum setback of 1m. I am satisfied that any deficiency in setback on that side, would not lead to a refusal of the application. 53 Under cl C1.3 - view sharing of DCP21 and Tenacity Consulting v Warringah [2004] NSWLEC 140 primary views should not be blocked unreasonably. As submitted by Ms Furness, the first step is to consider the quality of the view. As in the present case, water views are more highly valued than land views. The second step is to determine from what part of the property, are obtained the views. She pointed to the fact that from the living rooms of Nos 6 and 8 Marine Parade water views are presently available over the land. 54 In assessing the extent of impact from Nos 6, 8 and 15 Marine Parade, Ms Furness submitted that No 8 Marine Parade would lose the entire view except for the narrow slot down the western boundary of the subject land. She referred the Court to the evidence of Mr Walsh the development officer, Pittwater Council, who on the site inspection, pointed out that the bulk of the northern pavilion would cause the entire view from No 8 Marine Parade to be reduced. 55 However, I am satisfied that the bulk of the northern pavilion would be reasonable given the setback from the western boundary, taking into account the separation distance between Nos 9 and 11 Marine Parade. On this basis, I am satisfied that the proposal would meet the view sharing requirements of DCP21. Also, the height of the northern pavilion is compliant. Thus, I am satisfied that the proposal would reasonably share views over the western boundary line. 56 During the course of the hearing the applicant indicated that it would be willing to setback the northern pavilion from the western boundary if T4 were removed. For the reasons given above, I consider this to be unnecessary as I am satisfied that the gap between the garage on No 9 Marine Parade and the proposed northern pavilion is what would be expected under the planning controls. 57 I would not refuse the application for reason of inadequate view sharing under cl C1.3 of DCP21. SEPP71 58 Mr Walsh on behalf of the council prepared a SEPP71 report that addressed public access, flora, fauna and marine ecology, cultural heritage, marine engineering and coastal processes. This report did not give rise to any discrete new issue. The extension of the public path proposed by the applicant would be a matter for consideration under this topic. The applicant is prepared to construct the retaining wall on the seaward side of the proposal in the same line as the existing wall in front of No 7 Marine Parade or thereabouts. It is also the applicant's intention to construct any wall so that it would be an extension of the existing wall. The position of the wall has been indicated on the revised plan Issue 4 in Exhibit J and the details and materials have been also indicated. 59 The subject land is within the 'coastal zone' and within a sensitive coastal location as defined in SEPP 71 gazetted coastal zone maps of 18 November 2005. Under SEPP71 and cll 8(a), (b), (c), (d), (e), (f) and (j), the Court is required to have regard to the visual impact of development on the view from the waterway. In this case the view of the proposal from the south and Avalon Beach. 60 The proposal is setback behind the foreshore building line, and despite the objection of Mr Doyle, I would not require the building to be setback in line with No 9 Marine Parade. I am satisfied that the proposal would preserve views towards the water from nearby buildings. The evidence of Ms Laidlaw, confirms the above. 61 I am satisfied, that the presentation of the southern façade of the proposal from viewpoints to the south is appropriate. I would not refuse the application for this reason. Tree retention 62 HELP Landcare Services, in a report dated 22 November 2005, root mapped the Norfolk Island Pines T4 and T6. The latter is more proximate to the proposed garage than the former. In order to maintain tree T6, the applicant's arborist recommended that those sections of the garage within 3m of the trunk of the tree should be supported on pier and beam footings and that there should be no cut (excavation) within 4m of the trunk of the tree. The applicant is prepared to submit to a condition in this regard. 63 Ms Laidlaw noted that these recommendations were consistent with the approach of the council's arborist Bio Design. In the plans in Exhibit J, the whole of the garage was moved northwards, towards the street by 300mm and raised by 200mm in order to reduce excavation and protect the tree T6. 64 The floor of the garage is now proposed at 11.20m AHD and the excavations for the slab and footings would be to around 10.8m AHD depending on the engineering specifications, [Note: Exhibit J plans]. The ground level at the base of tree T6 is shown on the survey plan as 11.04m AHD, so some excavation is likely near the tree. Ms Laidlaw sought confirmation from the applicant's or the council's arborist that this work would not adversely impact on the health and vigour of T6 before the level of the garage was elevated to 11.2m AHD. 65 The applicant seeks to remove tree T4. Mrs Breckenridge might have expected to retain that tree as it would formerly on her side of the fence. I am satisfied that tree T4 must be removed in order to construct the dwelling and I would not refuse the application for this reason. 66 For the above reasons, the appeal is upheld. Orders 67 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No N0027/05 lodged with the respondent council on 5 January 2005 to demolish the existing structures and to erect a new 'pavilion style' two-storey dwelling house at Lot 85, DP 8394, being No 11 Marine Parade, Avalon is approved subject to Conditions A1 to E109 in Annexure A. 3. The exhibits except for Exhibits A, B, C, J, 1, 2, 11and 12 are returned. S J Watts Commissioner of the Court sw The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are 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/ 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.