Land and Environment Court of New South Wales CITATION : Belic v Pittwater Council [2006] NSWLEC 145 APPLICANT Stefan Belic PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10701 of 2005 CORAM: Tuor C KEY ISSUES: Appeal :- Alterations and Additions to an existing dwelling, Development in front of Foreshore Building Line, Visual impact from water way. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 DATES OF HEARING: 22/03/2006 EX TEMPORE JUDGMENT DATE : 03/22/2006 APPLICANT Mr R. Creighton, Agent LEGAL REPRESENTATIVES: RESPONDENT Dr S. Pritchard, barrister instructed by: Ms J. Sutherland, solicitor of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 22 March 2006 10701 of 2005 Belic Stefan v Pittwater Council JUDGMENT 1 This is an Appeal against the refusal by Pittwater Council (the council) of a Development Application for alterations and additions to an existing building at 11 Richard Road, Scotland Island (the site). 2 The site, its context, the history of the application and the planning controls are described in the Statement of Basic Facts. 3 Briefly the site has an area of 698.9 sq m and slopes steeply towards the south and the water. It is located generally opposite and is visible from Church Point. 4 The site is developed with two buildings both capable of being used as dwelling houses. A restriction on title limits that only one building may be used as a dwelling. The current arrangement is that the building by the water (the lower building) is used as a dwelling and the larger building closer to the street is used for storage and as an office. 5 The application for alterations and additions relates to the lower building. This is a single storey structure about 1 m from the mean high water mark (MHWM). The proposal adds to the rear, sides and height of the existing building. 6 The figures presented by council, which were not disputed, are that the increase in ridge height is 55.87%, the increase in width is 20.9% and the increase in depth is 24.11%. Effectively this creates what would appear as a 2-storey house, with the second storey contained in an attic roof. The use of the attic space is not specified. 7 The Court visited the site and heard expert evidence from Mr H M Sanders, the Court-appointed Town Planner. 8 The site is zoned 2(a) – Residential (A) under Pittwater Local Environmental Plan 1993 (LEP). Dwelling houses are permissible with consent in this zone. 9 Pittwater 21 Development Control Plan (the DCP) is also relevant. Under s D8.7 and the Building Foreshore Height Map, a 15 m Foreshore Building Line (FBL) applies to the site. The FBL prohibits development other than boating facilities, in ground swimming pools, fencing, works to enable pedestrian access and seawalls, between the foreshore building line and the foreshore. 10 The relevant Outcomes for the control are: · Achieve the desired future character of the Locality; · To reduce the visual impact of the development when viewed from the waterway; · An uncluttered setback, which enhances the foreshore character of Pittwater. 11 In Mr Sanders' opinion the proposal did not meet the desired future character for the Lower Western Foreshores and Scotland Island Locality, which seeks to ensure that new development reflects the "predominant … setbacks of existing development." He stated that: "In this respect the proposal is set adjacent to MHWM whereas the existing dwellings in the vicinity of the site are set back at a distance that is generally consisted with the 15 m Foreshore Building Line requirement of the DCP. Moreover the proposed development is in a location on the site where the visual impact when viewed from the waterway is potentially at its greatest…The existing building line is a relatively small scale structure in a visually prominent location adjacent to MHWM. The enlargement of the structure as a consequence of the presently proposed additions will exacerbate the visual impact to what I consider to be inappropriate and unacceptable degree. Whilst I note that there are some other structures in Richard Road (and in other locations around the island) that are of a greater size than that as proposed in the case of the subject application and which are relatively close to the water they are not appropriate to be considered as precedents that would justify an inappropriately large structure close to the water on the subject site." 12 Mr Creighton, for the Applicant, did not seek leave to cross examine Mr Sanders. He submitted that the proposal complies with the relevant numerical controls and should be read in the wider catchment, which includes larger houses close to the foreshore. He stated that the dwelling when viewed from the water and Church Point would be read in this wider context and its visual impact would be acceptable. 13 The delineation of context and the resultant visual impact was the key difference between the parties. 14 I accept Mr Sanders evidence that in the immediate context of the site dwellings are generally setback behind the FBL, with some small scale buildings on the foreshore. This significantly reduces the visual impact of the dwellings as they are further from the water and can be screened or softened by landscaping. Buildings on the water cannot be effectively screened and their impact is more apparent. 15 The proposed alterations and additions will change what reads as a small single storey building, that is similar in scale to the other water side buildings in the immediate vicinity, into what would appear as a two-storey building. It would be clearly more visible and in the immediate context its impact is unacceptable. 16 The visual impact of the dwelling would be less when viewed further from the site as it is read more within the wider context. However, this does not lessen its impact within its immediate context given the predominant setback of existing development. I find this impact to be unacceptable. 17 Further, the other building on the site, which is behind the FBL, could be used as a dwelling or alternatively the lower building could be altered without the increase in height. Without the proposed attic space, the single storey building could be added to and provide suitable accommodation as a house. 18 For the above reasons the Orders of the Court are: 1. The appeal is dismissed. 2. The development application for alterations and additions at 11 Richard Road, Scotland Island is refused. 3. The exhibits, except Exhibits 2, 3 and 4, may be returned. ___________________ Annelise Tuor 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.