Land and Environment Court of New South Wales CITATION : Khomoutov v Hornsby Shire Council [2006] NSWLEC 409 APPLICANTS Dmitri & Janelle Khomoutov PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10486 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- Alterations and additions to an existing building, foreshore character, foreshore building line, design element, loss of views, density, privacy, noise, landscaping, setbacks, Hornsby Shire Local Environmental Plan 1994 LEGISLATION CITED: Sydney Regional Local Environmental Plan No. 20 – Hawkesbury and Nepean River Brooklyn Development Control Plan DATES OF HEARING: 18/10/2006 EX TEMPORE JUDGMENT DATE : 10/18/2006 APPLICANT Mr R Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 18 October 2006 10486 of 2006 Dmitri & Janelle Khomoutov v Hornsby Shire Council JUDGMENT 1 This is a class one appeal No. 10486 of 2006 between Dmitri and Janelle Khomoutov and Hornsby Shire Council in regard to the refusal of consent for alterations and additions to an existing two storey dwelling at Nos. 6-8 Wharf Street, Brooklyn. The alterations involve the construction at ground floor level of a combined study/guest room, and a sauna both on the southern façade away from the Hawkesbury River. The house has absolute waterfront to the river in the bay between the Brooklyn mainland and Long Island. 2 The existing rumpus room is proposed to be converted into a double car garage with the garage door facing the street. There is to be a small extension on the street-ward side to the same extent as an existing balcony to gain sufficient length in the garage for the cars. There is also proposed to be excavation of an in-ground swimming pool adjacent to the eastern side of the dwelling house and a pergola. Adjacent the pool are new windows and doors at the ground floor, out to the pool terrace on that side. At the first storey there are two new windows overlooking the pool from the first floor dining room and living room. 3 Facing the water at first floor level the existing narrow balcony is to be reduced in length and widened to provide a more usable area without increasing the total floor area of the deck itself. A new roof is also proposed in a composite design that has a low pitched gable along the length of the house and overhanging eaves roofs at a different pitch to the main roof. 4 The site is described Lots 15 and 16, Section 1 in DP 2002 and is an irregular shaped lot incorporating two allotments for a total area of 524.7 sq m. It is located on the low eastern side of Wharf Street, Brooklyn, at the water front. Wharf Street is a short dead end street to the north of Brooklyn Road. The latter is the main road from the highway into the township. 5 The site is relatively flat except in its south-western corner where it rises with the hill slope. Up in that elevated area are the septic pump-out tanks. 6 The property fronts Sandbrook Inlet and has 25 m long timber jetty out into water from an old masonry retaining wall approximately along the high watermark. From survey it is indicated the wall is approximately 1 m below high watermark. However, that structure is not subject of the application or raised in issues. 7 The locality is one of mixed use having both private residential and active commercial maritime activities. On the eastern side of the property is an active marina, its car park directly adjoining the subject property together with a jetty projecting almost out from the eastern boundary of the subject property and two rental cottages on the water front. 8 To the south there is a two storey dwelling elevated on the hillside at No. 4 Wharf Street which also has a number of balconies at each level overlooking the rear yard of the subject site and also overlooking the existing house to the waterway. 9 The next property up the hill is No. 2 Wharf Street which is a single storey house and its views are mainly from its rear enclosed verandah which looks down over the marina facility to the water front, with some minor views obtained over the roof of No. 4 and the subject property towards Long Island. There is an unsealed turning bay at the end of Wharf Street which also serves as an access to another marina to the west of the subject property. 10 The site is zoned Residential AT (Low Density – Tourist Village) under the Hornsby Shire Local Environmental Plan 1994. The proposed uses are defined as dwelling house and swimming pool and are permissible pursuant to cl 7 with development consent. Clause 15 of the Local Environmental Plan requires that development in that zone should not exceed a floor space of 0.4:1. The proposed floor space ratio (FSR) of the development is approximately 0.39:1 although with the addition of the sauna it became 0.409:1. The proposal is also subject to revisions of the Sydney Regional Local Environmental Plan No. 20 – Hawkesbury and Nepean River . Of particular relevance is cl 6(3) Water Quality Policy and cl 6(7) Riverine Scenic Quality Policy. The exceedence of the FSR is de minimis non curat lex. 11 The proposal is also subject to the provisions of council's Brooklyn Development Control Plan. Of particular relevance are the design, privacy, views, solar access, setbacks, and landscape requirements. 12 Attending the on-site hearing were for the respondent: o Mr T Pickup, solicitor o Mr P Vergison, environmental health and building inspector o Mr A Rodgers, objector/resident of No. 4 Wharf Street o Mr P Davico, objector/resident and owner of the marina at Nos. 59-67 Brooklyn Road and o Mrs J Cole, resident objector of No. 2 Wharf Street 13 Appearing for the applicant was: o Mr R Creighton, agent o Ms O Marshall-McClelland, architect and transport planner and o Mr & Mrs D and J Khomoutov, applicants 14 The parties had agreed that a joint expert should be appointed by the Court and an architect/town planner and urban designer Mr B Newbold appeared. 15 In hearing from the objectors the principal concerns revolved around view retention, privacy, noise disturbance and consistency in the application of the foreshore protection policies of the statutes and the development control plan. 16 In hearing from Mr Rodgers, his house is directly behind the subject proposal. From one of the ground floor two decks which are at different levels, he has views over the rear yard of the proposal and its proposed swimming pool towards the marina and then the water. From his other deck adjacent Wharf Street he has views towards the water and the Hawkesbury River bridges. The existing house already blocks views directly to the north but retains the other views. The proposal does not change this. 17 The primary concern was privacy, and noise from the activity in the swimming pool and perhaps longer term if screen vegetation proposed on the boundary goes to sufficient height for privacy, that some view loss might be incurred. His top floor deck has a clear view over the top of the subject proposal which would not be affected. 18 The original plans had in the extension at the rear of the subject property windows directly facing his decks and living room areas. The windows had been deleted in the proposal as it was before me on the day of the hearing and privacy concerns resolved. 19 In hearing from Mrs Cole, she was concerned about potential view loss by the new roof of the proposal because she had a minor view to the water and Long Island from her back deck over the top of No. 4 and Nos. 6 - 8. The water component would be lost with the new roof. Her major view however, is over her back yard and Mr Davico's marina towards the water to the north-east. 20 Mr Davico's concerns are mainly that his parking area was directly adjoining the proposed pool and the new windows of the development. He feared that activity at his car park might disturb the residents whereas at the moment there was only a blank façade in the existing house facing in that direction. 21 The applicant was undisturbed by the potential for this noise and had taken that into account in the design of the proposal. There were no windows from bedrooms directly facing that area except the window of bedroom No. 3 in the rear extension which was setback some 8 m from the side boundary and was unlikely to experience significant disturbance from activity in the car park. 22 The other rooms with the new windows facing in that direction were daytime living rooms which should not be unduly disturbed taking into account that the marina has existed for many years in that location, and any prudent purchaser of the subject property would have taken that into account. 23 Mr Newbold had produced a preliminary opinion and an initial report on the proposal which had recommended its refusal on a number of grounds. There were amended plans tendered with leave of the Court at the commencement of the on-site hearing and these resolved some of his concerns. During the hearing there were further changes recommended by the applicant which further reduced his concerns in regard to the matter and he drafted some additional conditions to those proposed by the respondent. The respondent's draft conditions being in Exhibit 9 and Mr Newbold's conditions which were adopted by the applicant were tendered in Exhibit D. 24 The Issues in the appeal were: Issue 1 Whether the proposed development satisfies the Riverine Scenic Quality Policy set out in cl 6(7) of Sydney Regional Environmental Plan – Hawkesbury & Nepean Rivers - SREP 20 requiring that the scenic quality of the riverine corridor must be protected: Particulars: a) The proposal will have a detrimental impact upon the established foreshore character of the area by incorporating the erection of new structure, including an extension to the garage, first floor deck, pergola and pool, within the 10 m, foreshore building line requirements of council's Brooklyn Development Control Plan. 25 In the end Mr Newbold with his amended conditions and the amended plans, as they were at the end of the hearing, indicated that in regard to this issue he was reasonably satisfied that the design quality of the building and its components would be acceptable under the statute. Issue 2 was deleted. Issue 3 on Design . The proposed development does not comply with the Design Element of the Brooklyn Development Control Plan . Particulars : a) The proposed development does not minimise impact upon the views from adjacent properties b) The proposed development will have a detrimental impact upon the established foreshore character of the area. 26 In regard to the minimisation of view impact, the new roof design as sought by Mr Newbold changed the configuration of the roof to a hipped design and lowered its ridge height by half a metre. He was satisfied that the view loss for all of the neighbours would be minimal and acceptable. 27 In regard to the foreshore character of the area, he suggested that as in Issue 1 the amendments to the design would produce a satisfactory blending of the alterations and additions into the existing foreshore character of the area. 28 He also suggested amendments to the landscape plan to further soften the architectural form and introduce further native vegetation to the foreshore area including the removal of a very large Cactus tree within the subject property. Issue 4 : The proposed development does not comply with the privacy views and solar access element of the Brooklyn Development Control Plan . Particulars a) The proposed development will impact on the privacy of the adjoining properties. b) The proposed development will impact on the views enjoyed by the adjacent properties at 2 and 4 Wharf Street. 29 Issue 4(b) – I have dealt with already. 30 Issue 4(a) – the only privacy issue of major importance which was the south facing windows in the proposed extensions had been changed to avoid that privacy impact. The other impact of persons at the pool might cause disturbance to Mr Rodgers on his decks. I consider the separation distance being approximately 10 m from the nearest part of his deck that such separation was a normal expectation in a residential locality and the noise of activity in the pool due to family and friends should not be an unreasonable impact. 31 Mr Rodgers was concerned that yoga classes were conducted on the subject property and the pool might be used for hydro-therapy or some other purpose in conjunction with the yoga classes. However, he was assured by the applicant that such was not the case, it was strictly for family use only. Also it was put that the classes might be expanded, and it was also given in assurances to Mr Rodgers but that such was not the intention of the changes. It is for family reasons, the applicants having three children and their expectations were to live in the area for many years. Issue 5 : Whether any landscaping regime to protect the privacy of users of the proposed pool will have the potential upon views enjoyed by the adjacent propers at 2 and 4 Wharf Street. 32 This issue arose out of the applicant in the first place not having a landscape plan. Such has been tendered on the day of the hearing and subject to the amendments suggested by Mr Newbold, he announced himself satisfied with that, as did the respondent who said the major concern was to have a specific document which controlled the height of future vegetation and its location to preserve the views of the neighbours. The subject plan with amendments would be satisfactory. Issue 6 : The proposed development does not comply with the setbacks and foreshore control elements of the Brooklyn Development Plan by incorporating the erection of new structure, including an extension to the garage, first floor deck, pergola and pool, within the 10 m foreshore building line. 33 The existing house is approximately half within the foreshore building line of the Development Control Plan (DCP). It makes no infringement upon the statutory foreshore building line under the local environmental plan. Only a very small proportion of the small garage extension would be within the Development Control Plan Foreshore Building Line. Most of the pool and pergola would be within the DCP Foreshore Building Line. The altered front deck overlooking the water is also within the foreshore building line. The rear extension and sauna of the proposal are well behind the DCP foreshore building line. 34 It seemed to me that the development as proposed Is very much within the envelope of the existing house as seen from the water. Being an existing structure, it is unreasonable on the basis of the nature of alterations and extensions to require all works to be behind the foreshore building line. Consideration under cl 16.3.2 of SREP 20 would indicate that this is an appropriate conclusion. The principal matters arising out of that consideration is the need because of the flood prone nature of this locality, to flood proof the building and consider raising floor levels within both the existing house and the subject extensions. 35 The respondent had sought that the proposed garage as a change of use within the existing house, and having a small extension should be RL 2.3 AHD when the existing level is RL 1.9 AHD. 36 Mr Newbold did not venture into the engineering aspects of these matters, but he had concluded under the scenic provisions of SREP 20 and the development control plan that it would be more appropriate to leave the garage at its existing level. Raising its floor level would necessitate raising the driveway from Wharf Street which would create another visible structure along the foreshore which would not necessarily add to its attractiveness. 37 The engineering aspect consideration was provision of flood free access to the house and avoiding damage from inundation. It appeared that the 1:100 design flood level to this locality is RL 2 AHD and the council has a policy of requiring a free-board for habitable floor levels of RL 2.5 AHD as applicable to this proposal, and for non-habitable rooms such as garage to RL 2.3 AHD. 38 Bearing in mind the provisions of SREP 20 in cl 16.3.2 the garage being within the existing envelope of the existing house, and bearing in mind Mr Newbold's conclusions, I see no reason to the raise floor level of the garage. Wharf Street rises quickly above flood level adjacent the site, and most cars can negotiate 400 mm depth of water that may occur on the 1 in 100 year design flood. In any case the upper part of the site adjoining Wharf Street is flood free for emergency access. The council engineer had advised that the Sandbrook Bay is a flood storage area not a floodway and thus there is no danger of fast flowing waters. 39 Mr Davico advised that local house flooding often occurs due to sheet flow storm runoff from uphill during big rainfall. I was told the council engineers had not considered this point. 40 It will be necessary to alter the house with flood proof materials and raise services inside the house to be up at or above RL 2.5 AHD so that minimisation of flood damage in the future would apply. The applicant accepts this. 41 In dealing with the garage I note also that Mr Newbold's original report had required the relocation of the driveway in order to preserve a large Ficus in the street reserve area and this had been carried out on the amended plans. 42 The proposed swimming pool which is within the foreshore building line will be below the existing ground level. It was noted therefore during times of flood it will be inundated and as the flood waters rise it could float and come out of the ground. The council conditions should require a hydrostatic relief valve to avoid that situation. The pool being below ground level would have no impact on the scenic values of the area. 43 The pergola would be visible from the waterfront as a light weight structure on the eastern side of the house. The subject property has a very large liquid ambar tree on the east side. The additional structure would hardly be noticed from the waterway between all of the boats and the jetties and other foreshore buildings of the various marinas in this locality. 44 The existing front deck that is proposed to be reduced and reconfigured is now satisfactory in Mr Newbold's opinion, and I agree with that opinion as it is largely within the envelope of the existing building and there will be little change in visual impact from the waterway. The roof being redesigned as Mr Newbold proposed would produce a much simpler building in character compared to the complex roof in the application. The Newbold design would much more closely resemble the simple roof and building forms of the other buildings along the foreshore. Therefore I believe the intrusion of the alterations and additions within the 10 m foreshore building line of the development control plan are not such that should prevent any approval of the development. Issue 7 – was deleted 45 Issue 8 - was the matters raised by the objectors which I believe I have dealt with in regard to those matters that might have given rise to changes to the application or its refusal. 46 The conditions put forward by the respondent were only objected to by the applicant in regard to Condition 37 which required the raising of the garage floor level. All of the other conditions were accepted as well as the new conditions put forward by Mr Newbold and adopted by the applicant in Exhibit D. However, many of those changes would require amended drawings to both the architectural plans and the landscape plan and I believe that an appropriate way of doing that is by a deferred commencement consent. That requires those documents to be prepared and submitted to the council under the appropriate provisions of the Environmental Planning and Assessment Act 1979, such that a Construction Certificate cannot issue until the council has confirmed in writing that the revised documents meet the requirements of the conditions. Overall I believe the modified proposal is worthy of consent. 47 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Deferred development consent is granted to alterations and additions to Nos. 4-6 Wharf Street, Brooklyn, as shown in the plans in Exhibit A of this hearing, all as modified by the deferred commencement conditions and any further amendments required by the conditions and built in accordance with those conditions in Annexure 'A' hereto. 3. The exhibits are returned to the parties, except Exhibits 1, 2, 9, A, B, C and D. ___________________ K G Hoffman Commissioner of the Court 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.