Land and Environment Court of New South Wales CITATION : Archiworks Architects P/L v Sutherland SC [2005] NSWLEC 446 APPLICANT Archiworks Architects Pty Limited PARTIES : RESONDENT Sutherland Shire Council FILE NUMBER(S) : 10443 of 2005 CORAM: Murrell C Development Application :- dwelling house - concrete bridge and roof top parking - impact on views - streetscape - lift - privacy - character of the area reasonabliness. KEY ISSUES: Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Local Environmental Plan 2000 Sutherland Development Control Plan Parsonage v Ku-ring-gai C 2004 NSWLEC 347; CASES CITED: Tenacity Consulting v Warringah NSWLEC 140 DATES OF HEARING: 2/08/2005 DATE OF JUDGMENT: 08/03/2005 APPLICANT Mr Minh Hoang, agent LEGAL REPRESENTATIVES: RESPONDENT Mr C. Mathieson, solicitor of Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 3 August 2005 10443 of 2005 Archiworks Architects Pty Limited v Sutherland Shire Council JUDGMENT 1 This is a verbal judgment for a matter that I heard on-site yesterday, 2 August 2005. At the end of the proceedings the parties were given the choice of coming to hear the full judgment today or alternatively for the Court to give a brief judgment on-site with reasons and a full judgment to then be recorded in Court. 2 The parties both wished for the Court to give a brief judgment on-site and then a full judgment in court. The judgment that I gave on-site yesterday was that the appeal should be dismissed and the determinative reason for dismissing the appeal is that the access from Gascoyne Place, Illawong is inappropriate and unreasonable in the circumstances of the case. 3 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Sutherland Shire Council's refusal of a development application for a dwelling house at the property known as No. 9 Gascoyne Place, Illawong and also known as No. 188B Fowler Road, Illawong. 4 The subject site is one that has two frontages or two boundaries and access from two streets. The site is zoned Residential 2A(1) under the Sutherland Local Environmental Plan 2000 and as such in the 2A(1) zone the objectives are: (a) where the scale, amenity and general character of the area is preserved and where the streetscape is characterised by detached one and two-storey residential buildings and (c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy townhouses and villa developments and (d) where non-residential uses provide necessary services to the local neighbourhood without impacting on the residential amenity. 5 The proposal before the Court is for the erection of a dwelling house, which can be described as modern architecture and a flat concrete roof providing open parking for two vehicles for the subject property with a lift over run. The dwelling has under croft areas and basements, voids and a number of living areas. The plans were described by the architect as complex but comprehensible. The council on the other hand considered that the plans were ones that contained a number of inaccuracies many of these were subsequently rectified in amended plans forwarded to the Court the afternoon before the proceedings. 6 The accuracy or deficiencies in the plans are not a reason for refusal but I will comment that I consider that the plans are ones that are confusing and that there should have been greater clarity in the plans presented to the council with more details provided to allow an assessment. However, if I had been minded to grant approval to the development application I would have allowed an adjournment to allow for an amended plan to be submitted. However, the application was refused for the fundamental reason that the access by way of a concrete bridge or suspended concrete ramp to the roof top of the dwelling from Gascoyne was inappropriate in the streetscape to Gascoyne and in fact it had visual impacts, which were not considered to be reasonable. 7 The planning regime under which I also considered this development application includes council's Development Control Plan for dwelling houses in the 2A(1) 2A(2) and 2B Residential Zones and the controls or the guidelines contained within this DCP refer to a site analysis and the making of applications and the requirements in terms of details required. 8 It can be seen from the DCP that there is also a need to provide for energy efficient ratings, a Basix analysis is also required in terms of amendments to the Act and regulations. 9 The DCP also contains provisions for building lines to streets, which is generally 7.5 m in the shire. There is an additional Development Control Plan entitled, Building Lines to Streets, which also contains similar provisions and more explanation of the overall objectives of the building line. 10 The issues in the proceedings are ones that generally at the end of the day boil down to the streetscape and character of Gascoyne Place. The statement of issues that was provided to the proceedings provides for: (1) that the proposal is unacceptable in terms of the streetscape and the impacts on the character of the area, due to its height design including the elevated vehicle access driveway from Gascoyne Place and rooftop parking and siting and does not comply with the LEP in terms of in particular the objectives (a)(b)(c) and (d) contained in the plan for cl 34 which is the building height, nine metres overall building height and a 7.2 metres to the eave line. 11 The development application was also considered to be inconsistent with the Residential Zone in terms of the objectives in cl 10 and the objectives in cl 11. The building lines to the streets Development Control Plan was also considered to be not complied with a reason or an issue in the proceedings. 12 The second major issue in the proceedings is privacy. The proposal is unsatisfactory in that it will result in adverse impacts on the visual privacy of 188A Fowler Road, Illawong and contravenes objective A in cl 30 of the Sutherland LEP. 13 The third issue identified by the council was the inadequacy of the information. The information submitted with the development application is inaccurate and inadequate and does not enable a full and proper assessment of the development proposal in terms of clarity of plans, inconsistencies between plans, inconsistency with Basix certificates. The location of windows to dwellings on the adjoining properties are not shown, the roof pitch is inconsistent, one placed 24 and one placed 27 degrees. The southern end of the building appears to be incorrectly depicted, the carport roof is unclear, the lift over run is not shown on the north and south elevations and other inaccuracies and inadequacies were also identified. As I stated earlier, the application is not refused on the basis of the inadequacy of the plans although I do agree with the council that there should have been greater care taken and more details provided to allow an assessment. 14 However, by the end of the proceedings yesterday, both the council and the Court were in a position to understand what was depicted in the plans. 15 In terms of the proposal, the new dwelling comprises a basement of three bedrooms, two studies, a guest room and two balconies which really cannot be referred to as a basement but to the ground floor. The next floor provides for living, dining, family rooms, foyer, kitchen and balconies, three balconies, and the second floor provides for lobby, car port and car parking space. 16 The vehicle access to the site, which currently has a two-storey dwelling house erected is via an access handle leading to Fowler Road and the new dwelling is proposed to have access from Gascoyne Place across a new bridge structure linking the road to the first floor roof top parking. 17 The subject site is over 1,000 sq m, excluding the access handle it is some 900 sq m. The proposal complies with council's controls in terms of the required landscaped area and the Floor Space Ratio control. The building line to Gascoyne Place is .9 m. It is noted that there is a wide verge or council owned footpath area, which is some thirteen metres from the boundary. The site is also adjoined to the south or south-east by an Environment Protection Zone 7(b). To the north of the subject site is a property fronting Gascoyne Place and Gascoyne Place is a cul-de-sac. To the east of the subject site is No. 188A, the subject property being No. 188B Fowler Road, and the subject site shares an access handle with No. 188A. 18 There is a very steep drop from Gascoyne Place to the subject site. However, the land from Fowler Road or the access handle from Fowler Road is a gentle rise to a relatively flat building area. The site, however, can be described as one that has a number of constraints in terms of the topography. There are a number of significant gum trees on the property which are proposed to be retained. 19 The Court heard evidence from Mr Greg Hand, a senior specialist with the Sutherland Shire Council, and also from Mr Peter Anderson, an engineer, with the council. Mr Huang gave evidence on behalf of the applicant, he is also the architect for the proposed development and the applicant in these proceedings. 20 Mr Huang is of the view that the proposed development is one that should be allowed and that people will have difficulty in accepting or resisting change. However, in terms of the design of the proposed developments it represents a fair share of access from Gascoyne Place and in the circumstances he considers that the proposed design is one that should be approved. There is no legal impediment to access from Gascoyne Place. 21 In summary, Mr Hand on the other hand considers that the proposal provides for a difficult design solution when in fact it should be a simple solution if one utilises the access from Fowler Road. He considers that the impacts on the neighbours, is unreasonable and the proposed development is contrary to the objectives of the zone. The dwelling house is elevated or, in his words, jacked up because of the need to provide parking on the roof top accessed via the concrete structure from Gascoyne Place. As such, the height of the building needs to achieve the maximum gradient permitted for the driveway, which is 25%. 22 He also considers that the resolution to the privacy issues is not satisfactory in terms of the horizontal screens that are proposed when the dwelling could be designed to have regard to privacy without the additional screens. 23 The Court heard from a number of resident objectives on the view and they are Mr Dickman from No. 14 Gascoyne Place. He is concerned about the impact of the proposal being on their side boundary. The plans were amended such that there is now a greater setback from his side boundary and this has been increased to in places 4.3 m. He and his wife are concerned about the privacy impacts of the proposed development with the glazing along their boundary and balconies. They also expressed concern about the obscuring of part of their view of the Georges River across the shared boundary. 24 In terms of my assessment the proposed development is one that having regard to the views obtained from the property at No. 14, in particular to the north-east of their property which is the major view, the proposed development while it will impact on the view of the bay over their south boundary at the same time it is not an impact that would warrant refusal of the application, the back drop of the bushland will still be readily visible although the foreshore area may be obscured by the proposed development. 25 Of more concern to the Court is the balcony, the irregular balcony that projects in front of their property. The issue of privacy in terms of the main open space area and their swimming pool would not warrant refusal of the application and indeed the setback provides for adequate space for the existing vegetation to be retained on the subject lands. Furthermore, the separation distances are ones that are more than satisfactory and as such the privacy overlooking is not of concern to the Court. The visual bulk of the proposed development is one that could be mitigated by an alternative design in my assessment on the shared boundary with No. 14. 26 Also to the Court, there was evidence given by Mrs Nevine of No. 10 Gascoyne and her driveway is opposite the proposed driveway of the subject property. She is concerned about the turning circle and the lack of parking in the street and the visual impact of the proposed development. 27 Mr and Mrs Mitchell from No. 6 Gascoyne Place, expressed concern to the Court about the visual impact of overlooking from their property and their balconies the proposed roof top parking which was uncharacteristic in the area and the lift over run. 28 Mrs Sidwell of No. 8 was concerned about overlooking the roof top parking and the impact on the streetscape. 29 Mr Ivan Lizelal of No. 12 Gascoyne Place, was also concerned about the streetscape and the reduced parking that would result from the proposed development in a narrow cul-de-sac. 30 The Court had the opportunity of viewing the subject site from the objectors' properties and while there may have been an overestimation of the visibility of the roof top slab at the same time the roof top slab and exposed parking will be visible in the streetscape and from the properties and I am satisfied that this in itself does not warrant approval of the development application. The proposed driveway access from the street is 4 m at the kerb widening to 6 m at the property boundary for the concrete supported bridge and the impact of this structure on the street scaping is foreign to the streetscape and is one that is not necessary in terms of access to the property. 31 Mr Huang submitted that, yes access could continue to be gained from Fowler Road. However, his clients were desirous of a Gascoyne Place address as being more prestigious. The Court is of the view that pedestrian access can be maintained to any future dwelling on the subject site from Gascoyne Place together with a postal address at Gascoyne Place if that was concerned necessary. However, I have assessed this application in terms of reasonableness and what the impacts would be. While Mr Huang submitted that the application was one that can be legally made, at the same time that merely becomes a threshold question and in my merits assessment I must have regard to the reasonableness of the impacts. 32 In terms of the reasonableness of the impacts, I wish to refer to two judgments in this Court, one is Parsonage v Ku-ring-gai 2004 NSWLEC 347 of Senior Commissioner Dr Roseth and he in this judgment refers to reasonableness. While this judgment is concerning solar access on neighbours, nonetheless the principle of reasonableness or the concept of reasonableness is a matter that was referred to in this judgment and at par 7 he says in terms of the tests about solar access: "In the context of the reasonable development expectations of the proposals and the constraints imposed by the topography and the subdivision pattern as being relevant matters for consideration and overshadowing arising out of poor design is not acceptable even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost while reducing the impact on neighbours". 33 Another planning principle of the Senior Commissioner in the judgment of Tenacity Consulting v Warringah NSWLEC 140, the Senior Commissioner states at par 29: "The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls even a moderate impact may be considered unreasonable. With a complying proposal the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable". 34 In the circumstances of this case, I have looked at the reasonableness and balanced this against the concept of what an alternative design for a dwelling with access off Fowler Road would provide. It is undisputed by Mr Huang, yes access could continue to be provided from Fowler Road in a redevelopment and still provide for adequate turning areas. The Court also considers that the site lines from Fowler Road are more than satisfactory and do not create a danger or an impediment to continuing to use the access from Fowler Road. On the other hand, the steepness of a 25% driveway accessing Gascoyne Place, while it may be acceptable in terms of the upper limits of a steep driveway nonetheless is one that can be avoided by the continuing access to be provided from Fowler Road. 35 That is not the issue in terms of the reason for my refusal. The reason for my refusal is the impact of providing a wide concrete driveway to a concrete rooftop to provide parking for the subject dwelling is unnecessary in the circumstances of this case. Clearly a dwelling can be designed to continue to provide access from Fowler Road without the impacts that would accrue to the streetscape of Gascoyne Place. Leaving aside the engineering matters of compliance I am satisfied that the engineering requirements in the Australian Standards can be satisfied by the driveway but the question for the Court is the reasonableness to provide the access from Gascoyne and the need to provide it. 36 One must look at reasonable expectations of the development of land, that is true, if there was no alternative access then clearly one would need to look at providing appropriate vehicular access from Gascoyne Place, but this reasonableness of expectations of the development of the land must be looked at in terms of the reasonable impacts and where there is a reasonable alternative and one, which does not cause the impacts that would be caused by providing vehicle access to Gascoyne Place then in the circumstances of this case this in itself is determinative and fatal to the development application. 37 The issue of height and the need for a State Environmental Planning Policy No. 1 objection was also raised by the council in terms of the plans not providing adequate details or inaccurate in terms of ground lines and measurements. Mr Huang said this could be overcome by a condition saying that the height of 9 m to the top of the dwelling and 7.2 to the eaves could be a condition on the development application. 38 I agree with the council that it is not appropriate to condition an application with this uncertainty in terms of the private certification process. At the same time, if I was minded to approve the application I would have allowed an adjournment to ensure that the dwelling would comply with council's requirement but that is not the issue, the issue is the impact, whether it is in excess of council's controls or is compliant. 39 The site does provide many opportunities in terms of views, solar access and development of a reasonable size dwelling for the subject site which is in accordance with council's controls in its LEP and DCP. There are also constraints on the site and that clear constraint is attempting to provide access from Gascoyne which results in a dwelling, which is somewhat contrived in its design and in appropriate in the streetscape where garaging is provided under cover and that is what would be a reasonable expectation of land owners within this area, which is a low-density residential area and well vegetated with views of the Georges River. 40 Mr Huang, 'said that there are many properties in Sydney that provide open garaging and roof top parking.' However, this would be foreign in this setting. It may be most acceptable in higher density areas but it is certainly out of character or uncharacteristic of this area and clearly is not consistent with council's LEP in this regard. 41 In terms of my overall assessment I have had regard to council's planning regime and I have also had regard to the aims and objectives of the Sutherland LEP and the Residential 2A(1) zone and I am satisfied that the proposed development is inconsistent and antipathetic to the provisions provided in council's local planning regime. The proposed development is also one that is not appropriate for the subject site in terms of s 79C(1)(b) of the Environmental Planning and Assessment Act and this also warrants refusal of the application. In terms of the planning principle of reasonableness, reasonableness is a matter that must be embraced in making all planning decisions. That is, the reasonableness of the development in terms of expectations of the development of the land and reasonableness in terms of the impacts that are created by proposed developments. And in looking at the reasonableness, one must have regard to not only numerical compliance but also whether alternative designs could readily provide for the subject parcel of lands without the impacts created by a component which is foreign to the area. 42 Yes, the proposal is legally permissible and allowed within the zone but on a merits consideration the concept of reasonableness, that is, the planning principle of reasonableness must be taken into consideration. Therefore, on the basis of my assessment the following orders of the Court are: 1. The appeal in respect of the property known as No. 9 Gascoyne Place Illawong is dismissed. 2. The development application submitted to Sutherland Shire Council and as amended by the plans dated 2 August 2005 is determined by refusal of the application. 3. The exhibits are returned. J S Murrell 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.