Land and Environment Court of New South Wales CITATION : Pratt v Kiama Municipal Council [2005] NSWLEC 562 APPLICANT Ian Donald Pratt PARTIES : RESPONDENT Kiama Municipal Council FILE NUMBER(S) : 11585 of 2004 CORAM: Murrell C Development Application :- s 97 appeal - dwelling house KEY ISSUES: Environmental Planning and Assessment Act 1979 Kiama Local Environmental Plan 1996 LEGISLATION CITED: Coastal Policy of 1997 State Environmental Planning Policy No. 71 DATES OF HEARING: 11/08/2005 and 12/08/2005 DATE OF JUDGMENT: 09/03/2005 APPLICANT Mr R McKinnon, solicitor Of: R M McKinnon & Co. LEGAL REPRESENTATIVES: RESPONDENT Mr P Moggach, solicitor SOLICITORS Kearns & Garside JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 5 September 2005 11585 of 2004 Ian Donald Pratt v Kiama Municipal Council JUDGMENT 1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Kiama Municipal Council's refusal of a development application for a dwelling house on the property known as No. 2a Pheasant Point Drive, Kiama. 2 By way of background it is noted that the subject lot is the result of a sub-division in 1993 whereby the Court approved of the sub-division of the property known as No. 2 Pheasant Point Drive, Kiama. At that time the Court considered the sub-division application a number of restrictions were placed on future development of the subject site. This was by way of a building footprint and a maximum height level for the subject dwelling and in that regard the judgment contains the relevant conditions of approval and the proposed development complies with same. I also take the point of the respondent Council that the planning regime is somewhat more sophisticated today in terms of an assessment or rather in terms of the planning framework/statutory regime under which I must consider the development application for the dwelling house. 3 I have had regard to all the relevant controls in terms of the planning regime for the dwelling house. The Kiama Local Environmental Plan 1996 contains a number of aims and objectives, of particular interest to this development application is: · to preserve the essence of the special quality of the Council's area; · to manage, develop and conserve the natural and built resources within the Council's area: · to ensure that new developments are well designed and complement the character of the surrounding land and the Council's area; and · to ensure that residential areas are based on neighbourhood and environmental design principles including a number of factors such as solar access, the built form complementing the landscape, minimum degradation of flora and fauna and natural habitats, a landscape design that is appropriate to the area and makes for a more attractive residential environment, a defined edge to the settlement, environmental considerations are also contained within that list. 4 The Coastal Policy of 1997 is also a relevant consideration as well a State Environmental Planning Policy No. 71 which has a number of relevant provisions that the Court must also consider in the assessment of the development application. 5 The Court had an extensive site inspection on the morning of the hearing which was held in Kiama and had the opportunity of viewing the subject site from a number of locations and also had the opportunity to hear evidence from resident objectors. 6 Mr Wood of No. 2, was concerned that the proposed development was one that would intrude in terms of the privacy of his property and that it was not an appropriate development for the subject site. Mr Early also gave evidence to the Court, he also resides in Pheasant Point Drive. He is concerned about the visual impact of the proposed development as is Mr Fisher of Pheasant Point Drive concerned about the visual impact of the proposed development and it was described as hanging off the cliff as such. 7 I shall describe the landscaping in which the subject site sits. The site is on, for all intents and purposes, the corner of the Pheasant Point Drive. The land has a very steep decline to a rock platform which runs at the foot of the site and forms one of the boundaries. A rock swimming pool that has been constructed on the ocean front rock platform. The area is one that has a variety of architectural styles in terms of the dwellings within the immediate vicinity dating from approximately the 1920's and 30's to current more modern architecture within the area. Kiama township itself is noted for its beauty as a coastal village/ township and the scenic qualities of the Kiama district. 8 As this is an extempore judgment, I will say at this point even though I will clearly go through and give full reasons, I have considered that the proposed development is one that is satisfactory and that approval should be granted to the subject development. 9 The Court also had the opportunity of hearing from a number of experts in the proceedings, Professor Toon, a consultant town planner/urban designer/architect gave evidence to the Court on behalf of the applicant. Mr Leonard a landscape horticulturist consultant gave evidence on behalf of the applicant also. 10 Mr Macintosh was the Court-appointed geo-technical engineer from Douglas Partners, Geo-Technical Environment and Hydraulic engineers. He gave evidence with respect to the geo-technical aspects of the development. 11 Mr Debnam Council's officer provided evidence for the Council in terms of his town planning expertise and Mr Van Breda a landscape horticulturist consultant on behalf of the Council also provided evidence as did Mr Joseph, a building inspector provided evidence for the Council as well. 12 There was a statement of issues prepared which became Exhibit 12 in the proceedings, but in summary the main issue for the Court to have regard to is the impact of the proposed development in terms of its interface with the land sea in this instance, the cliff face and the sea ocean front. It is agreed and the Court certainly considers that this is a sensitive location and as such any development on the subject site should respect the scenic qualities of the area and not be a prominent development. The Council's expert was of the view that the proposed development would be one that would be offensive to passers-by and it would an unexpected form and people would be curious as to how a dwelling house was erected on the subject site. 13 Professor Toon, on the other hand, is of the opinion that the cone of vision is limited in terms of the viewing of the subject development and the Court had the benefit of, as I stated, an extensive site inspection along the rock shelf and platform and I agree that the angle or cone of vision in which the property or the proposed dwelling will be visible is relatively small and it is not one that would represent an overdevelopment of the site. It needs to be considered in its context in that the dwelling is proposed to be in the recessed part of the cliff face and not on the headland. Whilst the Pheasant Point Drive leads to a headland the subject property is not on the edge of the headland and indeed it is in the recessed in a gully. 14 The Court is not saying that the proposed dwelling house will not be visible and that is not the test for the Court either. It is whether in fact the visibility of the proposed dwelling would be offensive or so conspicuous and prominent that it would impact in terms of the natural landscape. I have also had regard to the fact that the Coastal Policy has controls with respect to undeveloped headlands and the subject headland, however, is one that has been the subject of urban development for many years, granted it is urban development that is most in keeping with the township nature of Kiama. The proposed dwelling house will not be one that is offensive in terms of the character of the township. It is a dwelling that will, as I stated, be visible as one other dwellings in the locality but it is not one that would be offensive to a passer-by. 15 The Court is most conscious of the need for the Coastal Interface Zone to be highly respected in terms of development and all development forms must not detract from the scenic qualities of the area. At the end of the day it is the relationship between the built form in an urban environment and the natural environment and the subject development proposal is one that will sit within the landscape. It will be landscaped in terms of a regeneration program. This does not mean the house should be hidden and clearly that is not the purpose of landscaping. The purpose of the landscaping in this particular instance is to ensure that there is a regeneration of natural endemic species that will be more capable of survival in what is a relatively hostile environment in terms of the coastal zone in terms of winds and sea spray. 16 The landscape architects developed a number of conditions in terms of the need for a re-vegetation plan, that had a maintenance program of some 5 years, and the applicant does not object to this. There was also discussion with respect to the storm water disposal from the subject site to ensure that the landscaping was not interfered with and to ensure that the ultimate storm water discharge to the rock shelf would not have adverse impacts. 17 The Court also had the benefit of a written statement from of Professor Toon and the impacts of sea level change in terms of the greenhouse effect. The Court is of the opinion that even having regard to and having regard to the precautionary principle in terms of sea level rise, this is not a matter that would warrant refusal of the development application and the dwelling house would sit within the cliff face, even taking the scenario of a worst-case sea level rise. It is important to note that Professor Toon's advice in terms of the dyke and the discharge into the ocean point has been considered in the geo-technical information that was provided to the Court and it is one that must be addressed in terms of the location of the support for the subject dwelling. 18 It was submitted on behalf of the Council that a pole house is unique in the location or in the vicinity of the area and the relationship of the built form being unique is also not the test as to whether an application should be refused. Similarly the unexpected or the intrigue with respect to a pole house is not a matter that would warrant refusal of the application. At the end of the day I must look at the proposed dwelling in its context and I am satisfied that it will fit in terms of the streetscape, Pheasant Point Drive, the village or township of Kiama and also in terms of the rock face and sea interface. 19 It was agreed between the experts Mr Debnam and Professor Toon that the development would not be conspicuous when viewed from the opposite side of the waterway; the Blowhole; and surrounding area. And it would also provide a fit in terms of the streetscape. The views from the harbour were also not considered to be an issue by the experts, however Mr Debnam did say this is provided that the vegetation can be retained. 20 I am satisfied with the advice of the landscape horticulturists that the re-vegetation program and the requirement that it be managed for some five years will provide for a satisfactory context for the proposed dwelling. It is also noted that the Casuarina by the road reservation is also to be retained and a number of trees/vegetation are to be retained. 21 It was submitted on behalf of the Council that there was not enough certainty in the application before the Court. As is the case with many applications during the course of the proceedings there was greater certainty in terms of the geo-technical understanding and the structural needs and in fact the applicant provided a condition of consent for a maximum number of poles, that is 24 poles and their dimensions. 22 I am satisfied on the information and reports that have been tendered to the Court that the proposed development application does not lack certainty and this is not a reason that would warrant its refusal either. 23 The issue of privacy of Mr Wood, the experts agreed that the separation distances in terms of both the horizontal and vertical separation is not an issue in their opinion and I agree with their assessment. Mr Woods' house is considerably elevated from the proposed dwelling and the privacy concerns would be more one of looking down from Mr Woods' property to the subject dwelling. However the separation distances are ones that would mitigate this impact and I am not concerned about the looking up from the proposed development to Mr Woods' dwelling in terms of the angle and the separation distances and I am satisfied in an urban and even in a context of a township that the overlooking is not a matter that would warrant refusal of the application. 24 As I said at the end of the day the issue for the Court came down to the impact of the proposed development when viewed from the rock shelf and the swimming pool, the public domain and an assessment of applications in a sensitive coastal location must be assessed carefully in terms of the impact on the public domain to ensure that the visual and scenic qualities of an area are retained. I am satisfied the proposed development will be a dwelling that will be visible but it will not be conspicuous or represent an overdevelopment of the site. Clearly a pole house type development is more appropriate in a very steep location and the subject dwelling is not one that could be regarded as a large dwelling and it will sit comfortably in the context of the site. I agree it may not be a usual dwelling and pole house development is often confined to very steep hillsides and it is the more appropriate form of development rather than stepping down a hill that would provide for a greater building mass that has high visibility. 25 The Council was concerned in terms of the proposal being contrary to the State Policy. The State Policy sets out a number of objectives which must be taken into consideration. Clause 8 for the record contains the matters for consideration. The aims are set out in the policy and public access along coastal foreshores, opportunities to provide new public access along foreshores and, in particular the Council cited: D) The suitability of development given its type, location and design and its relationship to the surrounding area, E) Any detrimental impact the development may have on the amenity of the coastal foreshore including overshadowing, significant view losses, F) The scenic qualities of the New South Wales coast and means to protect and improve these qualities and J) The likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards and the New South Wales Coastal Policy of 1997 sets out a number of objectives for the coastal area. In particular the principle of undeveloped headlands will be preserved. I am satisfied the proposed development in existing urban area does not offend this principle. 26 Appropriate buildings for a coastal context are contained within the Coastal Design Guidelines for New South Wales and the objectives for built form are to relate to different coastal settings. However, there are some objectives which are common to all new developments and they are to ensure amenity is maintained on public land and on site; be appropriate to its location within the settlement and the settlement type; be appropriate to its natural setting. 27 In terms of prominent coastal sites the Urban Design Guidelines include "to ensure development of these sites is no bigger in scale, depth, floor space ratio, height, footprint than existing buildings on the site … This is particularly important for visually prominent sites such as headlands, cliff edges and prominent coastal ridges; 3) Create a public interface to the site and ensure development does not degrade the public nature of the site or the public open spaces adjoining or surrounding the site." 28 In terms of the Urban Design Guidelines, in terms of the State Policy, SEPP 71 objectives and in terms of the Coastal Policy itself I am satisfied that the proposed development is not inconsistent or anti-pathetic to its provisions and that the proposed development is one that is satisfactory and approval should be granted. 29 The Coastal Policy has a number of overall aims of the policy that relate to "protecting and managing the natural environment of the coast, improving public access to the coast and ensuring there are opportunities for public access; and to ensure the visual amenity of the coast is protected." The policy also identifies or defines what the coastal strip is and the proposed development, while it falls within what is known as the Coastal Zone, I am satisfied that the development is appropriate. 30 The subject site as I stated is zoned Residential under the Kiama Local Environmental Plan 1996 and that particular plan also has a number of objectives, which I cited earlier and I am satisfied that the proposed development, once again, is not inconsistent with the aims and objectives of that local environmental plan. 31 The Council contested that the subdivision should not be approved and I agree with the Council that I must assess the current development application for the dwelling house under a more sophisticated planning regime and in my assessment I have gone through the more substantial and finessed planning regime and I am satisfied the proposal should be approved. 32 The Council maintained that a pole house is unique in the area. The Council however said that a dwelling house could be erected on the subject site but at the same time the Council was not clear on the actual objection to the proposed dwelling house itself in terms of the built form. 33 I am satisfied with the benefit of all the experts to the proceedings and with the need for geo-technical requirements also to be satisfied, for the landscape requirements to be satisfied that the proposal does not represent uncertainty and approval should be granted. 34 With respect to the conditions, I do note that the Council when it referred the conditions to the Court following the closure of the proceedings in Kiama that there were two conditions, with some disagreement between the parties. The first one was with respect to the materials and this was not fully ventilated during the proceedings so I will, at the end of my judgment, ask the parties to comment on this factor. There was comment during the proceedings and the questions were asked about the pitch of the roof, the Court was advised, the proposed pitch reflects the cottages in Hindmarsh Park (not in the visual catchment). However, comments were also made that the pitch of the roof could be lowered, - it commences at 270 and rises to 350. There was advice given to the Court on the day of the hearing that in fact the pitch of the roof could be reduced and the Court is of the opinion that it would fit within the streetscape more appropriately if it was reduced to say, 27 or 300. 35 The issue of materials was something that was also discussed at the proceedings. I was of the understanding that there would be a schedule of materials, colours and finishes, that in fact did not occur but there was a condition that the Council placed in the 'without prejudice' conditions where they had exception to corrugated iron. For the record the Court asked the experts what would be appropriate materials for a coastal location and also having regard to the fact that the proposed pole house is designed as a light weight structure in a coastal area, which is in keeping with a coastal area and that in fact a zincalume roof may be more appropriate in the circumstances of this particular dwelling. The Court was advised that there was a desire to reflect the materials of the adjoining dwelling at No. 2, however in my assessment the subject dwelling will stand in its own right and be a different built form. This is a matter that needs to be further considered. 36 The other condition that was in dispute was the structural plans. I accept the condition handed up by the applicant in terms of the structural plans are to be prepared by a qualified structural engineer to the reasonable satisfaction of Council. The structural plans for the sub-floor structure are to be generally in accordance with the Coffy and Associates plan. That is: and must not use more than 4 rows of poles in an east-west direction and, not more than 6 rows in the north-south direction, (a total of 24 poles); must use square galvanised poles of no greater than 125 by 125 mm; and that the extent that structural bracing is required the bracing must be of no greater dimensions than 16 mm rods. 37 The Council's basic objection was that there was not enough certainty in terms of the structural engineer's requirements, however I am satisfied with the above condition that there is certainty and the proposed development will not be visually intrusive. 38 The Court will issue formal orders in chambers on receipt of an amended plan in terms of the roof with a lowering of the roof pitch to between twenty seven and thirty degrees and also on the submission of a schedule of materials, colours and finishes. 39 Therefore the formal orders of the Court will be: 1) The appeal in respect of the property known as 2A Pheasant Point Drive Kiama is upheld; 2) The development application submitted to Kiama Council as amended, is approved subject to the conditions contained in Annexure 'A'. 3) The exhibits except for 1,13,16, A, D, and H are returned. ___________________ J S Murrell Commissioner of the Court Ljr/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.