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: Equitable preservation of views and vistas to and/or from public/private places. 14 The outcome stated for view sharing is that: No one development is sited to maximise the views of its occupants to the exclusion of adjoining residences 15 The control relevantly provides that: building lines and heights are to be sympathetic to the topography of the site and to maintain a reasonable sharing of views available from surrounding and nearby properties…. 16 The principles enunciated by Roseth SC in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 are of assistance in determining whether reasonable view sharing is achieved and support the finding that the impact on views is unacceptable. 17 Firstly, the views affected are of land water interface and water views. 18 Secondly, the views affected are from the main living areas and decks of 3 and 3A Ralston Street, from both the sitting and standing positions. 19 Thirdly, the views that would be maintained are largely of vegetation and the western slopes of Pittwater or water largely obscured by trees. While removing the land-water interface views, the proposal would also open up some water views from 3 Ralston Street. The views to be lost particularly those of the land-water interface of the western side of Pittwater are significant in the context of the whole view enjoyed by these properties, as is the view of the water from 3A Ralston Street between 52 and 50 Pacific Road. 20 Fourthly, the view loss results from a development that complies with the numerical controls in the DCP, however a "more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of the neighbours". 21 The latter principal was reinforced in the decision of Roseth SC in Pafburn v North Sydney Council (No2) [2005] NSWLEC 584 and is of importance in the consideration of this proposal. Put simply there is an impact on views that can be mitigated by changes to the proposal without affecting the development potential of the land. 22 Lowering the proposal 500 mm will retain the land water-interface view and will not impact on the proposal in a significant manner. It can be achieved either separately or by a combination of lowering the floor to ceiling heights and reducing the depth of the roof. It is unlikely to involve further excavation of the site. 23 Straightening the western wall of the upper floor to be a minimum of 4.7 m along the western boundary will retain a greater extent of water view between 52 and 50 Pacific Road. Whilst some of this view will still be lost I consider it to be acceptable. 24 The architect has confirmed that both these changes can be achieved without compromising the design or amenity of the proposal. I have therefore imposed the changes as a deferred commencement condition. Orders 25 The orders of the Court are: 1. The appeal is upheld. 2. Development application 100/06 to demolish the existing house and construct a new house at 50 Pacific Road, Palm Beach is approved subject to the conditions in Annexure A. 3. Exhibits, except Exhibits A, 5, 6 and 7 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.