O'Luen Australia Pty Limited v Pittwater Council [2005] NSWLEC 32

Land and Environment Court of New South Wales

CITATION : O'Luen Australia Pty Limited v Pittwater Council [2005] NSWLEC 32

APPLICANT O'Luen Australia Pty Limited

PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 11070 of 2004

CORAM: Watts C

Development Application :- The visual impact of the height and bulk of the proposal KEY ISSUES:

Pittwater Local Environmental Plan 1993, (PLEP1993) Development control Plan/Locality Plan No LP 3 Palm Beach Ridgeline, (LP3) LEGISLATION CITED: DCP No 8 Heights of Buildings, (DCP8) Pittwater 21, (Draft LEP) Pittwater 21, (DCP)

DATES OF HEARING: 04/02/2005 EX TEMPORE JUDGMENT DATE : 02/04/2005

APPLICANT Mr D Legg, solicitor SOLICITORS Burridge & Legg

LEGAL REPRESENTATIVES: RESPONDENT Ms E Duenow, solicitor SOLICITORS: Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

4 February 2005

11070 of 2004 - O'Luen Australia Pty Limited v Pittwater Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the refusal, by Pittwater Council (the council), of a development application to erect a carport on the western half of an existing elevated car parking platform at Lots 67 and 68 in DP 1046153 being Nos 132B and 132C Pacific Road, Palm Beach. 2 I visited the land in company with the parties on the morning of the on-site hearing. Present were: - Ms E Duenow, solicitor of the council; - Ms L Haidari, assistant development officer of the council; - Mr S Barwick, Court-appointed expert, consultant town planner; - Mr D Legg, solicitor of the applicant; and - Mr R Burrows, applicant. 3 I have concluded that the application should succeed as the proposed carport roof would be likely to be of minimal visual impact in the landscape and the proposal as conditioned and as otherwise agreed would be satisfactory when considered under s 79C of the E nvironmental Planning and Assessment Act 1979. 4 In 1994 the Court considered an application for a carport and garage at the same address and this was dismissed. This application, which was different to the present proposal, was considered prior to the erection of a new dwelling on No 132C Pacific Road and thus was to be seen in a different context. I have distinguished the present application from this. The land 5 The land is situated on the western side of Pacific Road and has an area of some 2,862m2. Two largely rectangular sites comprise the land and there is a steep, 75% grade, cross-fall from the rear boundary down the escarpment on the west and to Barrenjoey Road. As a result of the topography, the land is visually prominent from points on Pittwater and from Barrenjoey and Iluka Roads near Sand Point on Pittwater. 6 Existing on the land is an elevated reinforced concrete car parking structure supported on nine reinforced concrete columns straddling the boundary between both allotments being Nos 132B and 132C Pacific Road, Palm Beach. Erected on land below this elevated structure is a dwelling at No 132C Pacific Road. This prominent house draws the eye of the viewer away from the elevated slab. An elevated driveway gives vehicular access to and from this platform and Pacific Road. 7 The land is affected by landslip; however, the geotechnical engineer considers the proposal to be minor and an "acceptable level of risk" in this regard. Relevant planning controls Pittwater Local Environmental Plan 1993, (PLEP1993) 8 Under the provisions of the PLEP1993 the land is zoned 2(A) (Residential "A"), and the proposal is permissible with consent. Other planning instruments that apply include: Development Control Plan/Locality Plan No LP 3 Palm Beach Ridgeline, (LP3) 9 LP3 applies by virtue of the saving provision contained in cl A1.5 of Pittwater 21 DCP. Under LP3 a 8.5m height limit applies, however, on sites with slopes greater than 20% within the building platform, a height of 10m may be considered by the council or the Court on appeal. The proposal being around 14.7m to the ridge would exceed this height limit even at 10m. Pittwater 21, (DCP) 10 Under cl D13.2 of the DCP, development "…shall minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve." The proposal and its history 11 Development application No N0007/04 was lodged with the respondent council on 12 January 2004 to erect a carport roof with columns (existing) on an existing elevated car parking structure on the land. 12 The proposal is described in plans contained in Exhibit 1, Tab 3 pp 54-5, of the Agenda of the Development Unit Meeting of 4 November 2004, and shows the proposed carport roof erected on the eastern side of the elevated car parking structure and straddling the common boundary. Although the plan dimensions are not given it appears that the roof would measure around 11m x 6m with the long sides in the north south direction. The roof would rise from a height of 2.1m at the ends to a height of 2.45m at the middle. The maximum ridge height is shown as 59.35m AHD (assumed). 13 Mr Legg for the applicant explained that the need for the roof was to protect any cars parked on the elevated car parking structure from the elements, in particular hail. Notification 14 The application was notified to four nearby owners and occupants and the council received one objection from the Palm Beach Association. The association referred to the previous rejection of the carport "…for this location due to height restrictions, and that the roof would add bulk and scale to the building on the lot." [Note: Exhibit 1, Tab 5]. The Palm Beach Association had also objected to a previous proposal that had been considered by the Court in 1994. The council's decision 15 The council adopted the recommendation of the Development Unit and refused the development application on 25 February 2005. The hearing 16 The appeal was filed on 3 September 2004. 17 Mr S Barwick, consultant town planner was the Court-appointed expert. 18 Ms A Williams prepared the statement of basic facts. The issues 19 On 27 October 2004, the council filed a statement of issues: (1) Height and Bulk - The proposed development will extend to 14.7m in height above the natural ground level. The controls provide for an 8.5 metre maximum height limit. (DCP No LP 3-Palm Beach Ridgeline Locality Plan ("LP3') Clause 3.1.6, Pittwater 21 Development Control Plan ("P21DCP")- Clause D 12.4 Height). (2) Impact of the proposed development on the visual quality of the escarpment: The proposed development does not meet the following objectives of LP3: The proposed development is not in keeping with the desired future character of the Palm Beach Locality. (P21DCP-Clause D12.1-character as viewed from a public place): + To conserve and where possible enhance the desirable characteristics of the locality as identified in the Character Evaluation Report. + To ensure that future development within the locality has minimal effect upon the natural topography and environmental attributes of the land. + To ensure that the development shall harmonies with the natural setting and enhance the visual amenity of the area. + To ensure that residential amenity of the locality shall be maintained, and the locality is a desirable place to live. + To minimize the impact of development when viewed from public spaces. (LP3, Clause 1.5). (3) Viewed of the proposal from the public domain: The proposed development will not harmonise with the natural vegetation of the ridgeline (LP3 clause 2.3, summary. The proposed development will be a dominant site feature when viewed from the public domain including from Iluka Road, Barrenjoey Road and Snapperman Beach. Which is contrary to the outcomes sought for the Palm Beach Locality. (4) Foreshore Scenic Protection Area- the proposed development is inappropriate development with the Foreshore Scenic Protection Area and does not meet the outcomes contained in clauses D12.2 of P21 DCP. The control requires that development shall minimize any visual impacts on the natural environment when viewed from any waterway, road or public reserve. (P21DCP-Clause D12.2 Scenic Protection). 20 The visual impact of the height and bulk of the proposal was the salient issue. The evidence and findings Judgment of the Court in 1994 21 The proposal considered by the Court in 1994 [O'Luen Australia Pty Limited v Pittwater Council 20140 of 1994, Nott A] was different to that presently under consideration, in that it was for a combination carport and garage on the southern side of the elevated car parking structure and in a different context. In that case, the carport section covering two car parking spaces, was to be on the southwestern corner of the existing slab and the enclosed garage section with two car spaces would have been on the southeastern corner. The northern end of the slab was to be used as a turning area. Comparing the existing situation with that shown in the photographs in Dr Lamb's report, [Note: Exhibit 2] it appears likely that the backdrop of trees has been maintained over time and the foliage might have become a little denser. 22 In that case, Nott A commented that although it would be a relatively small structure it would be still quite prominent from viewpoints close and afar. He considered the roof would tend to accentuate the dominance of the existing elevated structure, "…which is already jutting out." 23 Nott A considered the prominence of the proposal resulted in part from "…the jutting out nature of the slab supported by columns which are about ten metres high. From many vantage points, particularly from the west and southwest, there is no shielding of the underside of the car parking slab or of the supporting columns." [Note: Page 4 of the judgment]. Since that time the house on No 132C Pacific Road has been erected and that building tends to draw the attention of the viewer away from the elevated car parking structure and the position of the proposed roof. 24 Although the present proposal would add slightly to bulk of structures on the hillside those structures should be considered in the light of all the presently existing structures nearby and against a backdrop of trees. When the 1994 proposal was considered the context was different and the carport roof and garage were in a different location. 25 I distinguish that case from the present, as since that time No 132C Pacific Road has been erected and partly shields from view, from viewpoints to the west, and southwest, the columns of the structure in Barrenjoey and Iluka Roads. Previously there was no screening of the columns of the elevated structure and the eye was naturally drawn to the elevated car parking structure. With the house erected on No 132C Pacific Road the elevated car parking structure is not so visually dominant. The proposed roof from many viewpoints would be set against a backdrop of trees and if coloured as proposed, I am satisfied that it would be visually recessive in the landscape. 26 I am satisfied from viewpoints to the west and southwest, the proportion of the visual field taken up by the presently proposed roof, would be very small. The applicant is prepared to colour the roof in a recessive colour-tone, further visually diminishing its impact. On the site inspection, the green coloured columns that have already been erected, were seen to visually recede into the landscape. One could expect the roof to do the same, as the underside of the slightly curved roof would be coloured to tone in with the backdrop of trees. The underside of the roof would also be in shade further reducing its visual impact. From most relevant viewpoints, the difference would be that in lieu of a dappled texture of leaves there would be a monotone of the dark green underside of the roof. But this would be over a very small proportion of the visual field. Also from most vantage points at low elevation the roofs of cars that are permitted to park on the existing structure, would partially obscure the roof from view. I am satisfied that the proposal would not dominate the landscape in its present context. 27 During the hearing, the applicant also agreed to paint the balustrade, the leading edge beam and columns of the existing elevated structure in deep 'Brunswick' green colour (the colour of the columns) prior to the commencement of the works. This would soften the visual impact of the existing structure and render it less intrusive than at present. The visual impact of the proposed new roof together with the existing structure thus, might be less than at present with the elevated car parking structure alone. 28 Nott A concluded that a roof on the eastern side of the slab would be preferable to one on the west as "…it would less readily viewed". I am satisfied that appropriately coloured in the present context, the proposal would have little visual impact and although slightly more prominent than a roof on the east, as suggested by the former Assessor, should not be refused consent by reason of that impact. The single roof running parallel with the hillside is appropriate. Visual impact of the height and bulk of the proposal 29 Mr Barwick was of the opinion that the proposal would: "…detrimentally add to the visual prominence of the existing development and erode the landscaped character of the vegetated escarpment that dominates and is the dominant natural feature viewed from Barrenjoey Road. 30 When viewed from Barrenjoey and Iluka Roads, I concluded, as did Mr Barwick, the Court-appointed expert, that the proposal's greater impact would be from points along Iluka Road. From Barrenjoey Road parts of the southwestern corner of the proposed carport roof would be seen against the sky. However, from that viewpoint the proposal would be well outside the normal cone of vision of a person standing in the street. In order to see the carport roof, high above the road, it would be necessary to crane one's neck. 31 As proposed, from more distant viewpoints in Iluka Road and the beach, I am satisfied; the proposal would be seen against a backdrop of trees and of minimal visual impact and should not be refused consent. Despite Mr Barwick's conclusion, I consider the proposal to comply with the intent of the DCP "…to minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve." [Note: DCP-Clause D12.2 - Scenic Protection]. I am also satisfied that it would not contravene the intent of cl D12.1 – and so impact on the character as viewed from a public place, as to require refusal of the application. [Note: DCP - Clause D12.1-character as viewed from a public place]. The proposed roof would not take away a significant part of the landscaped backdrop, does not rise above the ridge of trees from most relevant viewpoints and would thus would minimise any visual impact on the natural environment. 32 Despite the earlier refusal of a carport/garage structure on the same elevated car parking structure, for the above reasons, the appeal is upheld. Conditions 33 The conditions are those in Exhibit 4 as amended during the hearing. I have also deleted Condition 40, which referred to an appeal to the Court. This condition is unnecessary. Orders 34 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No N0007/04 lodged with the respondent council on 12 January 2004 to erect a carport on an existing elevated car parking platform at Lots 67 and 68 in DP 1046153 being Nos 132B and 132C Pacific Road, Palm Beach is approved subject to the Conditions 1 to 39 in Annexure A. 3. The Court notes the agreement of the parties that the applicant will paint the balustrade, the leading edge, beam and columns of the existing elevated structure in deep 'Brunswick' green colour prior to the commencement of the works. 4. The exhibits are retained.