Land and Environment Court of New South Wales CITATION : Edessa Holdings Pty Ltd v Shellharbour City Council [2006] NSWLEC 791 APPLICANT Edessa Holdings Pty Ltd PARTIES : RESPONDENT Shellharbour City Council FILE NUMBER(S) : 10240 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Multi unit housing, coastal visual impacts, setbacks, noise amenity, public interest Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 71 Shellharbour Local Environmental Plan 2000 DATES OF HEARING: 5/12/2006 and 6/12/2006 EX TEMPORE JUDGMENT DATE : 12/06/2006 APPLICANT Mr P. K. Kapetas, solicitor of Landerer & Company LEGAL REPRESENTATIVES: RESPONDENT Mr M. Mantei, solicitor of Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 6 December 2006 10240 of 2006 Edessa Holdings Pty Ltd v Shellharbour City Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background. 1 This appeal was lodged against council's refusal of a development application for a 6 unit, integrated housing development at 3 Surf Road, Shellharbour. The full details of the site, proposal and planning controls are contained in the Statement of Basic Facts, on which I rely. 2 For the appeal a number of issues were identified, which can be summarised as follows: o adverse impacts on the neighbouring properties in respect of streetscape and impact on coastal view considerations, o internal amenity, o SEPP 71 considerations. 3 In order to address these issues, the parties agreed to Ms D Laidlaw being the Court appointed expert for planning and she prepared an initial assessment, which identified some deficiencies in the proposal, relative to the planning controls. 4 The consideration of her report resulted in the submission of amended plans, which were accepted into evidence as Exhibit A. Consequently the outstanding issues concern: o Adverse impact on adjoining properties, particularly in terms of setbacks and impact on coastal views; o Car parking o Public interest considerations. The Site. 5 The development site is described as Lot 1 DP 216377, No.3 Surf Road, Shellharbour. The site is irregular in shape and has an area of 2,609.3m2. The site has a 16.93m frontage to Surf Road, an eastern boundary of 78.35m in length, a southern boundary of 65.405m in length, and a western boundary with a total length of 67.665m. 6 The site is bounded to the north-west by Surf Road; to the west by a partial two (2) storey brick dwelling-house; to the south-east by a single storey brick dwelling-house; and to the east and north-east by a foreshore public reserve located adjacent to the cliff top above a rock platform. By virtue of its foreshore location, the site has extensive, uninterrupted views to the east and north-east over the ocean. 7 The site falls to the north-east, down towards the foreshore reserve. The development site has a high point of approximately RL 12.2m AHD at its south-western corner and falls in a north-easterly to a low point of approximately RL 9.2m AHD at the top of the foreshore cliff. A rock platform is located at the base of the cliff. The site falls some 3.Om over the total length of its southern boundary and approximately 2.Om over the length of its western boundary down to Surf Road. 8 The site contains perimeter garden plantings along its boundaries, with the majority of the site maintained as lawn. A large Norfolk Island Pine tree (some 24m tall and 13m in canopy spread) occupies a position 26m from Surf Road. 9 The site presently contains a large, single storey brick dwelling-house with a tiled roof; a detached brick garage; a concrete driveway; and a brick wall to the Surf Road frontage. The dwelling-house is positioned to the south-east of the Norfolk Island Pine tree, some 30m from Surf Road. The detached garage is located in the south-western corner of the site. The Proposal. 10 It is proposed to demolish the existing dwelling-house and detached garage located on the site. It is then proposed to construct a total of 6 x 2 storey dwellings on the site and undertake a subsequent six (6) lot Torrens Title subdivision of the development so that each dwelling will sit on its own allotment of land. 11 The dwellings are proposed to be externally finished in similar materials. The ground floor walls are largely to be finished in selected feature stone cladding. Upper level walls are generally clad in a lightweight material - Ecoply "shadowclad" or weatherboard cladding. The walls will be painted in Taubmans colours, "Shell Stone" and "Celtic Blue". The roofs are to be covered in Colorbond metal sheeting, "Surfmist" in colour. 12 House I (180.19m2 inclusive of garaging) is to be sited on a 350.73m2 allotment and contains an entry foyer; open plan living/dining/kitchen area; laundry; and double garage at ground floor level. The first floor contains three (3) bedrooms (the main with an ensuite); a sitting room; bathroom; and two (2) terraces. The proposed dwelling is setback 4.8m from the eastern boundary and 4.5m from the Surf Road boundary. 13 House 2 (181.66m2 inclusive of garaging) is to be sited on a 385.53m2 allotment and contains an open plan living/dining/kitchen area; laundry area; fourth bedroom or study; a single-garage; and carport at ground floor level. The first floor contains three (3) bedrooms (the main with an ensuite); a bathroom; and one (1) terrace. The proposed dwelling wraps around the Norfolk Island Pine and is setback 5.5m from the eastern boundary and has a zero lot line to its south-eastern boundary (abutting House 3). 14 House 3 (187.95m2 inclusive of garaging) is to be sited on a 333.10m2 allotment and contains an entry foyer; open plan living/dining/kitchen area; laundry; WC; single garage; and carport at ground floor level. The first floor contains three (3) bedrooms (the main with an ensuite); bathroom; and one (1) terrace. The proposed dwelling is setback 6.Om from the eastern boundary and has a zero lot line to its north-western boundary (abutting House 2). 15 House 4 (209.14m2 inclusive of garaging) is to be sited on a 389.51 m2 allotment and contains an entry foyer; open plan living/dining/kitchen area; fourth bedroom or study; bathroom; laundry; and double garage at ground floor level. The first floor contains three (3) bedrooms (the main with an ensuite); a sitting area; bathroom; and a terrace. The proposed dwelling is setback 6.Om from the eastern boundary. 16 House 5 (244.46m2 inclusive of garaging) is to be sited on a 439.09m2 allotment and contains an entry foyer; open plan living/dining/kitchen area; fourth bedroom or study; bathroom; laundry; and double garage at ground floor level. The first floor contains three (3) bedrooms (the main with an ensuite); a sitting area; bathroom; and a terrace. The proposed dwelling is setback 6.Om from the eastern boundary and 1.0m from the southern boundary. 17 House 6 (204.88m2 inclusive of garaging) is to be sited on a 376.72m2 allotment and comprises a single level dwelling, contains 3 bedrooms, living / dining and ancillary rooms. 18 A concept landscape plan was submitted with the development application providing for retention of the Norfolk Island Pine, new street planting, turfed areas, garden beds with low maintenance ground covers, and boundary plantings of native species and hedging plants. 19 Access to the proposed development is to be obtained directly from Surf Road via a common access driveway constructed of concrete with a stencilled finish. To facilitate the manoeuvring of vehicles throughout the development, a series of reciprocal Rights of Carriageway (ROW) are to be created as part of the Torrens Title subdivision of the land. Planning Controls. State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71). 20 SEPP 71 came into effect in Shellharbour in November 2005 and it contains a number of relevant aims, which include: a) to protect and manage the natural, cultural, recreation and economic attributes of the NSW coast, e) to ensure that the visual amenity of the case is protected. 21 The other aims are covered by matters for consideration in the assessment. of development applications. Under clause 18, the preparation of a Master Plan is required for certain development and the subject development is caught by this requirement. The "Master Plan" is defined as a document consisting of written information, maps and diagrams that outlines proposals for development of the land to which the master plan applies. 22 Accordingly, the applicant prepared a master plan, which has been approved by the Minister. This master plan reflects the proposed development. Therefore the primary provisions of SEPP 1 have been satisfied and the other merit matters dealt with by Ms Laidlaw. Shellharbour LEP 2000 (SLEP 2000). 23 Under this SLEP, the site is zoned 2 (a) Residential `A' and the stated objective of this zone in clause 20(2) is: "To provide an environment primarily for detached and semi­detached housing". 24 The 2 (a) is zoned permits the use of land for the purpose of "subdivision" and "dwelling". Residential In fill Development Control Plan (In fill DCP). 25 The Infill DCP applies to the site and the development proposal. The objectives of the Infill DCP are stated in clause 1.4 as follows: 1. To ensure that residential infill development is compatible with the existing surrounding residential areas. 2. To ensure that amenity is available to the residents of all residential infill developments. 3. To create the opportunity for the development of two dwellings on one allotment of land. 4. To ensure that all dwellings have adequate storage facilities. 5. To indicate environmental and servicing requirements associated with residential in fill development. 26 For the purposes of the Infill DCP, the proposal is regarded as integrated housing. 27 The provisions of the Infill DCP relate to building design and siting requirements, car parking, private open space, solar access, amenity and services. Residential Development Control Plan (RDCP). 28 The Residential DCP applies to the site and to low density residential development such as detached houses and ancillary structures (eg garages, car ports, swimming pools, outbuildings, fences etc). Whilst the Residential DCP does not expressly apply to the development proposal, clause 5.8 of the Infill DCP references the Residential DCP as the appropriate document to be used to determine the building setbacks for integrated housing development. 29 In terms of setbacks, the Residential DCP imposes the following:­ o Single storey component 4.5m primary building line 900 mm side and rear o Two storey component 6.Om primary building line 1.2 m side and rear o Garages and open carports 5.0 m primary building line 500mm to 900mm side and rear. The Evidence 30 The detailed technical evidence in this matter was presented by Ms D Laidlaw (Exhibit 5), wherein she concluded that the proposal merited conditional consent. 31 Notwithstanding this, a number of objections were lodged and further oral evidence was presented by o Mr G Nelson, neighbour from 18 Wollongong Street, o Mr J Hartcher, neighbour 5 Surf Road. 32 The objections concerned, o inadequate setback from the " ocean" boundary, o loss of views, o precedental effects, o unsatisfactory access arrangements for garbage collection, o noise disamenity from the proposed driveway. 33 Most of these matters and have been assessed by Ms Laidlaw. One of the initial issues concerned the different interpretations of the setback controls in the DCP. In particular cl. 5.7 provides for a maximum building height of 9m, a natural wall height of 7m and a requirement that "with regard to two-storey development a detached two-storey dwelling located at the rear of the property will generally not the supported". 34 This concern has been substantially mitigated by the amended proposal, which has reduced the rear House 6 to single storey. Consequently the amenity impacts on the neighbouring properties have been contained to an acceptable level, according to Ms Laidlaw's opinion, which I accept based on my observations at the view. 35 Notwithstanding this, House 5 maintains its two-storey presentation and it has variable setbacks of approximately 10 m – 11.43 m to the northern/ocean boundary, which is of concern to the objectors. 36 Mr Nelson says that the building at this setback will reduce his views towards the beach and unfortunately likely lead to a "knock on effect" with future development of his property also encroaching further towards the ocean boundary. 37 As I have noted previously, the subject lot is of irregular shape with its prime boundary being the north-eastern, facing the ocean. In order to address this alignment, a notional building line was struck from the new unit development at Rockpool (No 2 Surf Road) and the existing dwelling at 16A Wollongong Street. Consequently the proposal has variable setbacks to the cliff face ranging from 5/6 m (House 1) to approximately 11.4m (House 5). Nevertheless all the proposed new houses observe a minimum 6m setback to the public reserve boundary. Any actual differences occur due to the variable alignment of the cliff face. 38 The main concern arising is that the new houses are too close to the cliff face and therefore represent an unacceptable visual intrusion into the public domain. This effect was observed on the view and Ms Laidlaw's response is: The one issue that is significant, in my view, is that concerning the setback to the coastal reserve boundary. Council's planning controls, in this regard, require a 10 metres setback to boundaries fronting waterbodies, but there is no similar control for setbacks to coastal reserves. As I understand, a 6 metres setback was previously agreed as appropriate for the previously approved 3 lot subdivision, and this has formed the basis of the 6 metre setback adopted in the current proposal. As noted in the report to Council, there is no issue of 'non compliance', therefore, rather the issue is one of whether the proposed development would have too great an impact on the coastal environment, and this in turn brings into consideration not only the objects of the LEP and DCP, but also the objects and provisions of SEPP 71 - Coastal Protection. In my preliminary report and in the meeting of 4 August, I identified some concern as to the prominence of the development relative to the cliffline, and the difficulty in establishing the impact of same. One of the concerns I had, was that the development, specifically dwelling 5 (and 4) projected so far forward of No. 18 Wollongong Street. It was pointed out by the applicant that No. 18 had an atypically generous setback to the reserve boundary, and that No. 16, to the south, was more representative. It was also pointed out that Council had approved setbacks as little as 2.5 metres to the Oceanfront reserve. Council has provided aerial photographs, which assist in establishing the relationship of the development to the broader sweep of development along this section of the coastline. From these, it can be seen that No. 16 does indeed extend well forward (ie to the east) of No. 18, however notably, the minimum setback of No. 16 from the reserve still exceeds 10 metres. Although scaling off the photograph is not 100% accurate, the setback appears to be in the order of 13 metres. Council has also provided the report on the development under construction at 2-6 Surf Road (noting that this development has been subject to subsequent S96 amendments). This development (based on the notated plans attached to the report) has minimum setbacks of 7.4 metres to 8.795 metres. The proposed development would therefore have the smallest setbacks of any existing/approved development along this particular section of the coast, compared to comparable properties adjoining the Oceanfront reserve. Although Council may have approved setbacks as little as 2.5 metres elsewhere, this is not particularly relevant to the circumstances of this site. Although the proposal comprises individual, two storey dwelling forms (which will have a lesser impact than a single form, such as at 2-6 Surf Road) and are well designed with appropriate materials, they are more prominently located relative to the cliff ine, and I would certainly feel more comfortable about the impact of the development, if a greater setback had been employed. Also relevant here, (as referred to above) is the use of quite generous floor to ceiling heights in both dwellings which (although apparently complying with the height limits) tends to emphasis the verticality of the individual dwellings. Of the individual dwelling sites, I have less concern about dwellings 1­3, but greater concern about dwellings 4 & 5, which are more elevated and which project further eastwards due to the configuration of the cliff / ine and boundary to the coastal reserve. In the amended plans now before the Court, the following amendments have been made: o The eastern facade of House 5 has been moved 2.65 metres further to the west. The first floor of this development (being the more prominent part on the coastal environment) now complies fully with the 10 metre set back that Council would require to water front (as opposed to, in this case, reserve front) properties and the ground floor substantially complies, with point encroachments only in three places (with those points at 7.8 metres and 9 metres). o The roof over the first floor terrace House 5 has been deleted. o The height of House 5, on its eastern side, has been reduced by 1.125 metres, by stepping down the floor plan at first as well as at ground floor. o House 4 has been moved east by 1.25 metres. In my opinion, the proposed development has now a reasonable impact in relation to the coastline, assessed against the relevant heads of consideration of SEPP 71, and taking into account the objections raised by the residents on this ground. 39 Furthermore in her evidence Ms Laidlaw emphasised that the protection of headland is paramount and acknowledged that the proposed houses contribute to its visual catchment area. However, as the houses are separated, consequently she does not consider that adverse visual impacts on the headland will be created as a result of this proposal. According to Ms Laidlaw's opinion, this is due in part to the outstanding design features of individual buildings. 40 However, I have considered the submissions that council prefers a more uniform 10 m setback to this north-eastern boundary, to achieve acceptable visual amenity, rather than the variable 5.5m - 11.3m setback. But it was to apparent from the view that the cliff face line is variable and partly vegetated, which affects viewing opportunities. When Ms Laidlaw was asked about the extent of material visual impacts, she did not consider the relatively minor non-compliance with the notional 10 m setback line was sufficient to warrant rejection or further major redesign of the proposal. 41 From my observations from different viewing points, I note that the character of this ocean/beach/cliff/residential transition interface comprises a distinct "amphitheatre" effect where the land above the cliff (and in close proximity) is dominated by residential development. Accordingly it appears that the controls allow more intense development (such as proposed a subject site), without compliance the notional 10m setback. 42 Taking into account the evidence and various submissions, I accept Ms Laidlaw's opinion that there will be little, if any material change in the visual amenity of the area by requiring Houses 1 - 3 to the further setback to achieve this notional 10m setback line. 43 In considering this issue, I have also taken into account that the owner of No 16B has the benefit of a Construction Certificate, which allows alterations to his existing house with the effect of placing a new 2-storey element closer to the cliff face. As this property is closer to the headland, the ultimate construction of the approved extensions will have a more significant impact on the headland and consequently reduce any impacts from the proposed development. 44 The approval of these extensions, together with the approval of the Rockpool development by council gives an indication of anticipated visual outcome for this part of the ocean front. I am satisfied that the proposal is consistent with this visual outcome and give diminished weight to the concerns about "knock on effects", because planning is a dynamic process, whereby council policies and controls can be reviewed to achieve desired future outcomes. 45 Another substantive issue raised concerns the proposed alignment of the common driveway. Ifs alignment is offset 750 mm from the common boundary with 5 Surf Road. Mr Hartcher says this will cause his family loss of privacy and importantly, the combined traffic for the 6 dwellings is likely to great excessive noise nuisance to his bedroom areas, which are adjacent to the driveway. 46 In response to this concern, the applicant amended on the proposed turning area adjacent to the bedroom window, by reducing its area and maintaining the 750mm setback. Ms Laidlaw confirmed that this setback allows satisfactory perimeter planting and that provision of a higher (2.4 m approx.) lapped and capped fence on the boundary, should ensure this is acceptable. I accept this opinion, taking into account that the controls allow some increase in densities in this Residential 2(a) zone, thereby introducing some changes. 47 The objectors also raised concerns about the lack of visitor parking in the proposal and existing problems with inadequate on street parking. However Ms Laidlaw's comments are: Concern Traffic and parking impacts on Surf Road. It is submitted that Surf Road has an atypical parking demand due to use by surfers, tourists etc. The proposal will generate unreasonably high traffic movements which will be exacerbated by holiday rentals, parties etc; Comment As I understand, Council's engineers have not raised concerns as to the ability of Surf Road to accommodate the additional traffic generated, and this conclusion would accord with my expectations. Because of its enviable coastal location and attraction to tourists and visitors it is always likely that there will be periodic adverse impacts in terms of traffic congestion and parking, but this is not a reason to refuse consent for new residential development Concern Proposal does not provide for visitor parking; Comment As I understand, there is no requirement for visitor parking to be provided for this form of integrated housing, however each dwelling provided two car spaces, and houses 2 and 3 arguably provide some capacity for visitor parking as well (ie by allowing a visitor car to park across their garage/carport. 48 The objectors also expressed concerns about the efficiency of the garbage collection, considering termination alignment of Surf Road, which restricts large vehicle turning. This matter has been further assessed by Ms Laidlaw who comments are: Concern Should be turning space for garbage truck. Comment I understand that provision has been made for a garbage truck to turn, using both this site and 2-6 Surf Road opposite, and this would represent an improvement on the current situation. Concern As the site is on a cul-de-sac it should be limited to 0.25:1 in accordance with the Medium Density DCP; Comment I understand this particular control does not apply to this form of integrated housing. I understand the source of this control related to concerns relating to the servicing of sites at the end of cul-de-sacs and Council is satisfied this concern does not apply in this case. Concern Excessive scale of development; Comment The proposed development provides for individually designed two storey dwellings, that are consistent in scale with much of the development that has occurred in the locality, including development along the coastline. Concern Impact on stability of the cliff; Comment The applicant has provided a geotechnical report, confirming that the development is acceptable in this regard. Conditions would need to be imposed to apply the recommendations of this report. Concern Impact on Norfolk Island Pine ; Comment Arborists reports have been submitted confirming the development is acceptable in this regard (including the impact of recent amendments). Concern Private open space inadequate Comment I believe the private open space provision is adequate, and particularly so, given the very high level of amenity offered by this location in terms of the public beach reserve adjacent. 49 Mr Hartcher also explained that the area at the end of Surf Road provides an attractive public viewing area and a new development will interfere with public access to this, in part due the increased competition for the limited on street parking spaces. In so far as I accept that this is an attractive viewing area, I do not consider that the incremental change for this development, in a form which is contemplated by the current controls, is sufficient to warrant rejection of the proposal. This is consistent with the opinions expressed by Ms Laidlaw. Conclusions 50 Having considered the evidence, the submissions and undertaken a view, I am satisfied that this site is suitable for the development terms of the current controls and this application merits conditional consent. 51 The site is subject to provisions of SEPP 71 and accordingly a Masterplan was prepared. This Masterplan depicts the actual development and has been approved by the Department of Planning. Considering the relatively prominent cliff face position of the site, this departmental approval indicates to me that the proposal achieves satisfactory visual amenity, in terms of the broader assessment presumably undertaken by the department. This is consistent with the opinions of the Court appointed expert, Ms Laidlaw, which I accept as reasonable in this case. 52 In terms of the other matters raised by the objectors, I am satisfied that they can be covered by reasonable conditions of consent. This includes the realignment of the driveway, increased landscaping and a higher section of fence adjacent to Mr Hartcher's bedroom area. 53 However, I am not satisfied that the draft conditions adequately achieve the orderly development of the land, particularly as the applicant proposes to firstly Torrens title subdivide the land, which could then allow individual building construction. It seems that me that effective coordination and construction of services conditions are required and a suitable staging construction plan so that disamenity and inconvenience for all new residents is and neighbours is minimized. Also, the conditions should specify the geotechnical requirements for the buildings and the extent of heavy duty crossings and driveway to facilitate garbage collections. 54 Subject to the satisfactory resolution of the outstanding draft conditions, the following Court orders may be made. Court Orders 1. The appeal is upheld. 2. Development consent is granted to Development Application No. 393/2005 for the demolition of existing structures and construction of 6 integrated houses at 3 Surf Road, Shellharbour, subject to the conditions in Annexure 'A'. 3. The exhibits may be returned except for 1, 2, 5, 9, 10, A, B, C and J. ___________________ R Hussey 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.