Land and Environment Court of New South Wales CITATION : Lazich v Pittwater Council [2006] NSWLEC 277 APPLICANT Alec Lazich PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11292 of 2005 CORAM: Bly C KEY ISSUES: Development Application :- Demolition of house and construction of a 3 storey dwelling, landcaping, privacy, view loss and building bulk LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater Development Control Plan No. 21, DATES OF HEARING: 15/05/2006 EX TEMPORE JUDGMENT DATE : 05/15/2006 APPLICANT Mr C Gough, solicitor SOLICITORS LEGAL REPRESENTATIVES: Storey & Gough RESPONDENT Ms S Pritchard, barrister JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 15 May 2006 11292 of 2005 Alec Lazich v Pittwater Council JUDGMENT 1 This appeal relates to Development Application No. 465/04, which involves the demolition of an existing dwelling house and the construction of a 3-storey dwelling at 184 Barrenjoey Road, Newport. 2 The site comprises Lot 2, DP 656486 and is situated on the eastern side of Barrenjoey Road. It has an area of approximately 2061 sq m, with a street frontage of approximately 17 m. The site's topography is consistent with those sites immediately adjoining it where the slope of land is in excess 30 per cent. 3 According to the Statement of Basic Facts the property is located in the suburb Bungan Beach, which is predominantly a residential area having a range of lot sizes, with dwellings having heights between 1 and 3 storeys. Development on the immediately adjoining properties consists of single dwellings which step down their sites. More generally, on steeply sloping sites in the locality, houses step down the slope or are cut into the landform. When viewed from afar, coastal vegetation over and around dwellings is evident, however some houses are conspicuous as a result of a lack of screen planting and external finishes, which do not blend with the coastal landscape. 4 Under Pittwater Local Environmental Plan 1993 the site is predominantly zoned Residential 2(a) from the western boundary down to the foreshore building line where the site is zoned for county open space in zone 9(b). The proposal is entirely contained within the 2(a) zone and is permissible with development consent. 5 Also applicable to the site is Pittwater Development Control Plan No. 21, ("the DCP") which includes the site in the Newport locality. The desired character for the Newport locality statement includes references to the following: + A low-density residential area characterised by 1 and 2 storey residences in a natural landscaped setting. + Future development will maintain a distinct height limit below the tree canopy and reflect the predominant scale and setbacks of the existing development. + Development on hillside and in the vicinity of ridge tops will integrate with the natural landscape and topography. + The indigenous tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment. 6 The building envelope controls in Section D 10.9 of the DCP makes reference to a number of outcomes relevant to this matter: + Achieve the desired future character of the locality; + The bulk and scale of the built form is minimised; + Equitable preservation of views and vistas to and/or from public/private places; + A reasonable level of privacy, amenity and solar access is provided and maintained; + Vegetation is retained and enhanced to visually reduce the built form. 7 The particular controls relevantly applicable to this development require that buildings be sited within a certain envelope. That envelope is described as: planes are to be projected 45 degrees from a height of 3.5 m above natural ground level at the side boundaries to the maximum height (refer to relevant height under Pt D localities). 8 More particularly the height limitation is contained in Section D 10.5 and the control refers to a maximum building height of 8.5 m. The building height of the proposal was the subject of a careful consideration during the hearing and it was concluded that the proposal meets this requirement. 9 A similar careful examination was undertaken of the proposal in the light of the building envelope requirement and it was discovered that one element of the building did not comply, that element having or reflecting non-compliances ranging between zero and 2.4 m over a length of 9 m. My attention was drawn to the provisions in Section D 10.9 dealing with variations but there was no suggestion that the proposal falls within any of these provisions. 10 The application in various forms was notified on several occasions and objections were received from both of the immediately neighbouring properties to the north and south. Those objectors gave evidence at the hearing to elaborate on and explain their written submissions. 11 The first was Mr G Cooksley of 182 Barrenjoey Road, and he explained his concerns included the overwhelming bulk of the building as observed from his property as well as from the beach. He was particularly concerned that the dwelling as proposed was excessively and unnecessarily large. He was also concerned about loss of privacy as a result of overlooking from balconies and overshadowing. In relation to overshadowing he was also concerned that landscaping as presently proposed could add to this. He noted also that a lower building resulting from a re-design producing a smaller building would probably resolve all of his concerns. He was also concerned given the topography as to stormwater drainage and how stormwater might enter his property. 12 Mr L Winnacott a consultant town planner appeared on behalf of Mrs M Caruana of 196 Barrenjoey Road. Mr Winnacott explained that whilst Mrs Caruana accepted that changes to the design made it much better there are still a number of concerns. Those concerns comprise impacts on available views from different parts of her home including the balcony and rear yard and the insufficiency of setbacks on the side of the subject property adjoining her property where the 1 m proposed could be insufficient to provide for drainage and landscaping. In addition this minimal setback means that the vehicular turning area would be readily apparent from viewing positions close to her front door and, if I understand the evidence correctly, that this would be excessively bulky and unattractive. In addition Mr Winnacott explained that she has other concerns including matters associated with the storage of garbage bins, stormwater drainage, dilapidation report and landscaping. 13 The Court was assisted by the expert evidence of Ms A McCabe, a consultant town planner who gave evidence on behalf of the parties having been appointed by the Court on their behalf. 14 Ms McCabe, was concerned following her first consideration of the initial proposal in relation to a number of matters and concluded that that proposal did not warrant approval. She has subsequently considered a significantly revised design and reached the conclusion that the application could be approved subject to appropriate conditions. 15 Upon discovering that Ms McCabe no longer had any fundamental objection to the proposal, the respondent council sought to have Mr S Gay the council town planner who has reported on the application on a number of occasions give evidence. The Court agreed to this on the basis of his contributing to a joint report with Ms McCabe and that report became Exhibit 1. 16 The Statement of Issues initially filed and served on the applicant contained six separate issues and a number of those issues have been resolved by the applicant agreeing to conditions of consent. Those matters comprise landscaping, privacy and coastal engineering aspects. The issue of overshadowing was not pressed as the proposal meets the shadow requirements in the DCP. 17 Two issues remain, the first is that the building is too bulky and is in breach of the building envelope control, the second is view loss particularly loss of views from No.186 Barrenjoey Road. On further consideration and taking into account the provision of height poles on the site and the advice from Mr Guy the view loss issue was not pressed. 18 Returning to the issue of the building envelope control and building bulk I note that in the joint report Ms McCabe concluded that the breach only results in marginal impacts and she is therefore satisfied with the non-compliance, especially given the proposed setback of the infringing wall. Mr Guy however, considers that the breach of this control is unacceptable as it results in an inconsistent application of policy. He noted that the breach could be rectified by the building being setback further or reduced in height. Ms McCabe also agreed that the breach could be rectified in the manner suggested but did not accept that this was necessary. 19 Ms McCabe was also invited to consider whether this was a sensitive site that required a disciplined response and she agreed that this was correct. She also agreed that the site was in a visible location and that the proposed building would comprise a dominant built form, but having taken these matters into account, she did not change her opinion that the departure from the control was not significant and that taking into account the setback there were no amenity impacts that resulted from the non-compliance. 20 In relation to Mr Guy's concerns regarding inconsistent application of council policy, she agreed that it was appropriate that such controls be consistently applied including that of the building envelope, but again, as she explained there are no significant impacts and the breach being relatively minor was acceptable. 21 In this context I was referred to the decisions for the Land and Environment Court in Stockland v Manly, and the Court of Appeal in Zhang v Canterbury City Council in terms of the manner in which I should apply the development control plan. Without addressing those judgments in any detail it is clear from them that a consent authority is required to give proper and careful consideration to the provisions of such controls. There is however no suggestion that a consent authority including the Court needs to strictly and inflexibly apply such controls. They are, as required by s 79C matters for consideration. Bearing this in mind I have decided that having been persuaded by Ms McCabe's evidence for the reasons she has given that the non-compliance is relatively insignificant and should not be a reason to refuse the application. 22 I also do not accept that this decision should form any kind of precedent for any inconsistent application of the controls. Each application needs to be determined on its own merits and, on its merits, and taking into account the compliance with the various other controls, the proposal does not have a non-compliances with the building envelope control that points to an unacceptable form of development. 23 Indeed in the circumstances I have concluded that the outcomes dealing with future character, bulk and scale, that would more closely relate to the building envelope control are met by the proposal. 24 As for the desired character there was some argument about whether this building is 2 or 3-storeys and whether if it were 3-storeys it would not meet the desired character requirement. In my view the building is predominantly 2 storeys. However, from possibly one view it might appear as 3-storeys but for the most part it is of 2 levels and I see no fundamental inconsistency with the desired character requirement particularly taking into account that it meets the more specific controls of height and almost entirely meets the building envelope control. 25 The other matters of concern that need to be addressed by the Court are the matters raised by the residents although I note that these are not matters pressed by the council. 26 The first is the issue of view loss that might be suffered by Mrs Caruana at No.186. In this regard I was provided with the opportunity of understanding the extent to which her views might be affected by the proposal, and was greatly assisted by the provision of height poles. Undoubtedly Mrs Caruana has wonderful views of the ocean and Mona Vale headland and Bungan Beach. Both Ms McCabe and Mr Guy considered the extent of view loss and believed that it was not of any great significance and I agree with them. Whilst there will be some affectation it will mostly cause obstruction to views of neighbouring buildings and the vast majority of views to the headland will be unaffected. Other beach and ocean views are not affected at all. The extent of impact without even addressing the tests in Tenacity are negligible or at worst minor. 27 I also understand that Mrs Caruana was concerned about the appearance of the building and particularly its bulk as might be seen from her rear yard. She may or may not be right as to what her own personal impression is but I have not been persuaded that the building in that view would be so bulky or would be so unattractive as to require modification or rejection. Concern was also expressed on her behalf, that the setback on the northern side of 1 m was insufficient to accommodate landscaping and stormwater drainage. Clearly there will be some difficulty but I do not accept that the provision of both drainage and landscaping is impossible. A revised landscaped plan is to be prepared and this can and will take into account stormwater drainage. 28 She was also concerned that vegetation might overhang the fence and that it should be not too large. This will be rectified in the revised landscaped plan which, taking into account difficult growing conditions, the narrowness of this space and the purpose of not having large vegetation overhanging the fence and also taking into account the drainage requirements should mean that such concerns are mitigated. 29 Other matters of concern involving dilapidation reports, excavation, drainage, and a revised landscaping plan are to be provided for in the draft conditions. 30 As for Mr Cooksley's concerns much of what he says is correct in that a smaller, lower building would probably resolve many of his concerns. But I do not accept that this is necessary. I firstly note that whilst his property will be overshadowed the extent of overshadowing is within the requirements of the DCP. I also note that his concerns about landscaping should be attended to in a revised landscaping plan as will his concern in relation to stormwater drainage be dealt within a revised stormwater plan. 31 Whilst he expresses concerns about the bulk of the building I have already dealt with the non-compliance with the building envelope control and taking my conclusion there into account together with the compliance with the building height with the maximum height control and the manner in which the building is to step up the hillside, I do not accept that it would have the kind of bulk that would be inappropriate in this locality. 32 There were suggestions that the local architectural community were concerned about buildings appearing on the skyline in this locality and they may well be right. But given that this is a matter that the council has considered in its locality plan which provides for a desired character and produced controls in relation to building envelope and building height and also bearing in mind that the proposal does not exceed the height limit and represents a substantial compliance with the building envelope it would be unreasonable to expect to a lowering of the building to bring it below the ridge line. 33 I therefore decided that: 1. The appeal is upheld. 2. Development application No. 465/04 for the demolition of an existing building and the erection of a new dwelling house at 184 Barrenjoey Road, Newport, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibit A is retained. ___________________ T A Bly Commissioner of the Court Gb//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.