Land and Environment Court of New South Wales CITATION : Bowden v Sutherland Shire Council [2004] NSWLEC 496 APPLICANT Gary Bowden PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10719 of 2004 CORAM: Hoffman C Appeal :- refusal of an application for alterations and additions to a house height exceedence KEY ISSUES: streetscape desired future character of locality Sutherland Shire Local Environmental Plan 2000 LEGISLATION CITED: Sutherland Shire Draft Local Environmental Plan 2004 State Environmental Planning Policy No. 1 objection Environmental Planning and Assessment Act 1979 CASES CITED: Winton Property Group v's North Sydney, Lloyd J. [2001] NSWLEC 46 DATES OF HEARING: 01/09/2004 EX TEMPORE 09/01/2004 JUDGMENT DATE : APPLICANT Mr S Klinger, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr C Mathieson, solicitor Principal Environmental Lawyer Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 1 September 2004 10719 of 2004 Bowden G. –v- Sutherland SC JUDGMENT 1 This is a class 1 appeal No. 10719 of 2004 between Gary Bowden and Sutherland Shire Council in regard to the refusal of an application for alterations and additions to a house at No. 53 Craigholm Street, Sylvania. 2 The subject plans are in Exhibit A and the applicant sought to amend the plans via another tender however, the Court disallowed the amendment as it would have required an adjournment for re-notification under Council's Development Control Plan 9.0/02 Edition 1. The adjournment sought to allow for an exhibition was not permitted. In any case the observation was made that the amendment would do nothing to change the fact that part of the extensions was three storey and it's consequences, which was the central issue in the case. 3 The proposal added a third storey over about the northern 1/3 of the floor plan. It also extended the ground floor garage and 1st floor living room and stair foyer closer to the street. 4 There was however, a large front setback of 16 m or so when the allowable setback was 7.5 m so the extensions at the front were not an issue except for the third storey. 5 The issues were: 1. The dwelling is unacceptable in terms of its height, bulk and scale and will have adverse impacts on the streetscape and character of the area, particularly as the dwelling will present as three storeys to the eastern (street), north and west and having regard to the following: Sutherland Shire Local Environmental Plan 2000 (i) The dwelling contravenes objectives (a) and (b) of the 2(a1) Residential zone in clause 33 which require the scale and general character of the area to be preserved and the streetscape to be characterised by detached 1 and 2 storey residential buildings. (ii) The dwelling contravenes the height provisions in clause 34, particularly objectives (1)(a) (to achieve consistency in the scale of buildings in each zone), (c) (to relate the building form to the topography of the site) and (d) (to ensure all buildings in the residential zone maintain a maximum two storey appearance). The dwelling also contravenes the height limit of 7.2 m to any point on the uppermost ceiling in clause 34(2)(a)(i) as the proposed height is 8.1 m at its highest point. Whether the development standard is unreasonable and unnecessary in the circumstances. (iii) The dwelling contravenes matters (a) and (f) in clause 30 as it will have an adverse effect on the quality of the streetscape and built environment. Sutherland Shire Draft Local Environmental Plan 2004 (iv) The dwelling contravenes objective (c) of the Local Housing Zone in clause 26.4.2 which is to allow development that is of a character, scale and nature that preserves the streetscape and neighbourhood character of the locality. (v) The dwelling contravenes the objectives in clause 8.4(2), namely objectives (a) (to ensure the scale of future development is consistent with the desired scale and character of the street and local area, and compliments its natural landscape setting), (c) (to minimise the impacts of new development on adjoining or nearby properties from visual intrusion) and (d) (to ensure that the visual impact of the development is minimised when viewed from adjoining properties and the street). The dwelling also contravenes the height limit of 7.2 m to any point on the uppermost ceiling in clause 8.4(3)(b)(i) as the proposed height is 8.1 m at its highest point. 6 The on-site hearing and s34 conference was attended by for the Respondent: * Mr C. Matheison, solicitor and * Ms R Thompson, Town Planner For the Applicant: * Mr S. Klinger, solicitor * Mr & Mrs T. Zajakovski, the owners of the property and * Mr G. Bowden, the applicant of Design and Drafting Limited. 7 There were some difficulty, in understanding the plans because the existing structure to be kept and the new structure were not clearly identified on the plans. However, this was explained to the Court during the hearing sufficient for the extent of the works to be understood. 8 The key matters for the Court to address was the State Environmental Planning Policy No. 1 objection to the height exceedence of the standard of 7.2m maximum to the ceiling to the top most floor and the third storey. The proposal reached 8.1 m and exceeded 7.2 m for nearly the whole of the third storey. The applicable clause was as stated in the issues cl 34 of the Sutherland Shire Local Environmental Plan 2000. The accepted tests of a State Environmental Planning Policy No. 1 objection are contained in the test case Winton Property Group v's North Sydney, Lloyd J, 2001 NSW LEC 46. 9 The principle test relevant to this appeal is whether or not the proposal would achieve the objectives of the standard notwithstanding the exceedence, and whether in the circumstances the requirement to comply was reasonable. 10 Amongst other matters in the Applicant's objection the Application pressed the lack of impacts, the lack of any objections from neighbours and that a requirement to comply would be unfair, but the Winton case clearly indicates that such matters are not relevant to the Courts decision. 11 The objectives of the standards are in cl 34. (1) The objectives of the height limits are to: (a) To achieve consistency in the scale of buildings within each zone. (b) Minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy and views and overshadowing. (c) Relate the building form to the topography of the site. (d) Ensure all buildings in the residential zone other than the 2(c) Residential zone maintain a maximum two storey appearance. 12 The Respondent's evidence was that the third storey was not consistent with the character of the zone of the locality in which No. 53 existed. There were some older three storey houses but they could not be precedent for an exceedence under the current Sutherland Local Environmental Plan, and the locality was predominately one and two storey houses, and the occasional house that had three levels was only two storey at any one point and therefore complied with the objectives. 13 The Applicant put that due to the slope of the land many houses appeared two storeys to the street but were actually three storeys at the rear. This may be so, but that could be seen to comply with the objective of cl 34(1)(d) that houses should maintain the appearance of two storeys. 14 In the Draft Sutherland Local Environmental Plan 2004 that is currently with the Department of Infrastructure Planning and Natural Resources for report to the Minister those standards are maintained with a stronger requirement that houses be a maximum of two storeys only. 15 In the Applicant's favour there was a much greater than normal front setback, and the large three level house on it's northern side at No. 51 Craigholm Street. 16 The Court was taken on a tour of the street and saw that the third storey would in fact make the proposal half a storey above the roof of it's northern neighbour, and that the predominant character of the locality was one and two storey with a few old three storey and newer three level houses. 17 The applicant put that the existing house on No. 53 did not permit a lower height to be achieved, and extending above the existing floor plan meant the retention of the landscaped area of the site. This mitigated the additional height and bulk of the proposal and, as a result, that an exception should be granted. 18 Overall the Court has come to the conclusion that although there were some advantages in the Applicant's design they did not overcome the requirements to achieve the objectives of cl 34(1), (a), (c) and (d) and thus the State Environmental Planning Plan No.1 objection must fail and with it the development must be refused. 19 The Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibit A and 5. ____________________________ K G Hoffman Commissioner of the Court ljr 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. 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