Clinton v Pittwater Council [2007] NSWLEC 201

Land and Environment Court of New South Wales

CITATION : Clinton v Pittwater Council [2007] NSWLEC 201

APPLICANT Shane Clinton PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 11107 of 2006

CORAM: Tuor C

Development Application :- demolition of existing house and construction of a new house KEY ISSUES: views loss impact on adjoining heritage item and streetscape.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan

CASES CITED: Pafburn v North Sydney Council (No2) [2005] NSWLEC 584; Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 11/04/2007

EX TEMPORE JUDGMENT DATE : 11 April 2007

APPLICANT Mr S. Clinton, litigant in person

LEGAL REPRESENTATIVES: RESPONDENT Mr M. Causer, solicitor of Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

11 April 2007

11107 of 2006 Shane Clinton v Pittwater Council

JUDGMENT 1 This is an against the deemed refusal by Pittwater Council (the council) of a development application (100/06) to demolish an existing house and construct a new house at No. 50 Pacific Road, Palm Beach (the site). 2 The site, its context, the history of the application and the planning controls are set out in the amended Statement of Basic Facts. 3 The appeal was held as an On-site hearing. The Court heard evidence from the following residents. · Dr and Mrs Yardley – 3A Ralston Street · Mrs Smedge – 3 Ralston Street · Mr Davies on behalf of the Palm Beach Association 4 The main concern of the adjoining residents was the view loss from their properties. Mr Davies supported this concern but also raised the issue of the impact of the bulk of the proposal on the adjoining heritage item and the streetscape. 5 The impact on the heritage and streetscape was assessed by council and considered to be acceptable. It was not raised by council as an issue in the proceedings. In the absence of any expert evidence to the contrary and with the benefit of a site view, I am satisfied that the proposal will not have an unacceptable impact on the significance of the heritage item and the streetscape. 6 The adjoining residents concerns reflect the only issue raised by council in the proceedings, that the proposed development will result in an unacceptable impact on the views from adjoining dwellings. 7 The Court heard expert evidence from Ms Haidari, planner for the council. Mr Clinton, the applicant in the proceedings, represented himself and did not call expert evidence. 8 The site is zoned 2(A) Residential under Pittwater Local Environmental Plan 1993 (the LEP). The proposal is permissible with consent. 9 Pittwater 21 Development Control Plan (the DCP) applies to the site. The controls of relevance to this appeal are: · C1.3 View Sharing · D12.4 Height · D12.8 Building envelope 10 The key difference between the parties was that Mr Clinton considered the proposal complied with the DCP as it met the numerical requirement of the controls and that an adequate part of the views from 3 and 3A Ralston Street was retained to achieve appropriate view sharing. 11 Ms Haidari's position was that there would be an unacceptable impact on the views from 3A Ralston Street that could be mitigated by amendments to the design. In her opinion appropriate view sharing would be achieved if the height of the proposal was reduced by 500 mm and the western façade shifted from the boundary by 500 mm. Her main concern was that the proposal exceeded the ridge height of the existing house thereby eliminating the view of the land-water interface enjoyed by 3 and 3A Ralston Street. The western extension of the upper floor of the proposal also impacted on the view of the water between the houses at 50 and 52 Pacific Road enjoyed by 3A Ralston Street. 12 Mr Clinton accepted the extent of this view loss but did not consider it to be a material impact as it represented only part of the view enjoyed by these properties. 13 I do not accept Mr Clinton's opinion. The proposal is below the height control of 8.5 m in the DCP and meets the building envelope control, however, both these controls state that the outcome to be achieved is: