Land and Environment Court of New South Wales CITATION : Coble Stephens Architects v Shellharbour City Council [2006] NSWLEC 550 APPLICANT Coble Stephens Architects PARTIES : RESPONDENT Shellharbour City Council FILE NUMBER(S) : 10199 of 2006 CORAM: Moore C KEY ISSUES: Development Application :- Proposed consent orders CASES CITED: Falcomata v Ku-ring-Gai Council (No 2), [2005] 143 LGERA 346, NSWLEC 459 DATES OF HEARING: 1 September 2006 EX TEMPORE JUDGMENT DATE : 09/01/2006 APPLICANT Ms M-L Taylor, solicitor Norman Waterhouse Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Mantei, solicitor Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 1 September 2006 10199 of 2006 Coble Stephens Architects v Shellharbour City Council This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Shellharbour City Council (the council) of Development Application 362 of 2005. 2. The matter came to me this morning as proposed consent orders, the applicant having made a number of modifications to the original proposal to the satisfaction of the council. I attended the site with the legal representatives of the parties, Mr Mantei, solicitor for the council, and Ms Taylor, solicitor for the applicant and those who were instructing them. 3. During the course of the site view, I was able to see that the site (which is located at 38 Wollongong Street, Shellharbour and having an area of somewhat in excess of 1000 sqm) has a long axis running (for the purposes of this determination conventionally) east-west and having a cross fall, which is a gentle slope, along the diagonal of the site for the bulk of the site but culminating in a steep bank at the eastern end of the site to a rock platform to the sea. 4. There was observed, during the course of the view, what amounted to an informal and not statutory stepped building line of the structure that is presently on the site and the structures to the north. The house that is immediately to the south of the site is set back somewhat further to the west than the present structure on the site. The structure to the south is located on the last of the allotments fronting Wollongong Street which run through to the beach. 5. The proposal, as put to me for consent this morning, involves the erection of an attached dual occupancy of two storeys with a swimming pool and a separate garage structure for one of the occupancies located closer to the street frontage with Wollongong Street. That separate structure will also incorporate a proposed rumpus room. 6. The proposed development is in the 2A zone within the Shellharbour Local Environmental Plan 2000 (the LEP) and is permissible with consent within the 2A zone. The relevant controls that apply to the site are State Environmental Planning Policy 71 (SEPP 21), the LEP, the Residential Infill Development Control Plan (the infill DCP) and the Residential Development Control Plan (the residential DCP). 7. With respect to the built form as now amended, by the deletion of the originally proposed basement and other modifications, the proposal complies with all the numerical requirements of the various planning documents. I am satisfied that the overall design of the built form is appropriate; the floor space ratio is compliant; and, as I understand it, the various height controls are met. 8. During the course of the hearing on site, I heard evidence from the neighbour immediately to the south and from several other community representatives concerning the non-observance of the historic building line to the coastal side. 9. As I was able to observe it, that building line is stepped and is not a purely straight line and in general effect it would appear to follow the general line of the coast as the coast returns somewhat to the west as it proceeds to the north. Any building erected on the site and appropriately located will enjoy substantial and significant views to the north and east over the ocean and the adjacent beach. 10. The resident objectors raised a number of matters. The questions of overshadowing and privacy impacts have either been dealt with by way of a privacy screen on the northern side of the proposed deck at the ground level or have otherwise been considered in a report prepared by Ms Byrne, a town planner of Shellharbour City Council. 11. As a consequence of considering those, I am satisfied that, although there may be some overshadowing to the building of the south, that is a necessary consequence of the erection of a compliant redevelopment on the site and the dwelling to the south will still meet the numerical controls for the provision of sunlight as at the winter solstice. 12. The single matter which detained me during the course of this morning's hearing was the question of the informal building line to the rear of the property and its observance or non observance by the proposal. 13. State Environmental Policy 71 requires, amongst other things, that its aims be considered and they are listed in cl 2 of the Policy. The relevant aims appear to be to ensure the visual amenity of the coast is protected and to protect and preserve beach environments and beach amenity. 14. Cl 8 of SEPP 71 lists a number of matters of consideration in determining a development application pursuant to the policy. The relevant one would appear to be (d), which reads the suitability of development given its type, location and design and its relationship with the surrounding area. 15. The council has been delegated authority to deal with this application under SEPP 71. 16. During the course of this morning's discussion, I put the proposition to Ms Taylor that the development potential of the site could be realised without radical modification to the form of the proposed building if it were to be moved somewhat further to the west – generally to respect the building line that has been historically observed. This would be compliant with cl 8(d) of SEPP 71 whereas the present proposal would not be compliant. 17. As a consequence of that proposition and discussions that were held between Ms Taylor and those advising her and Ms Mantei and those advising him, the applicant has agreed to amend the plans in a fashion which will set the built form back some 4 m at its leading edge from where it had originally been proposed with the wall of the built form being set back 3 m from where it was originally proposed. 18. In lieu of a step in to the south in the eastern wall, there will now be a modest step out to the south. The line of the balcony will be redesigned at the ground level so that it follows and reflects the line of the escarpment to the beach – thus making, in my view, a significantly more sympathetic presentation to that public space. 19. The consequence of that is that there will still be extensive and expansive views available to the residents of the new dwelling and there will be no loss, I am satisfied, of development potential for the site. 20. As a consequence of those revisions of the design, I am satisfied that the appeal should be upheld by consent and that the development application, on revised plans, should be granted development consent. 21. There was a further issue canvassed during the course of the proceedings relating to the health of three Norfolk Island Pine trees located on the allotment immediately to the north of the site. 22. I have evidence filed by the applicant of a tree assessment prepared by Mr Warwick Varley, consulting arborist, who proposes a number of conditions to ensure that those trees are safeguarded. It is my understanding that those conditions have been agreed to and adopted as part of the proposed conditions of development consent. 23. I also drew the attention of Mr Mantei to a concern that I held that proposed condition 59 of the Conditions of Consent requiring the developer to lodge a $500 landscape protection deposit with the council was contrary to the planning principal enunciated by me in Falcomata v Ku-ring-Gai Council (No 2), [2005] 143 LGERA 346, NSWLEC 459. In that case, I held that such bonds were unlawful and indeed, even if lawful, were not permitted on planning grounds. I understand Mr Mantei has been instructed to agree to the deletion of that condition. There are, therefore, no matters which need detain this application further. 24. I give the following directions. 1. The applicant is to file revised agreed plans by the close of business on 13 September 2006. 2. The respondent is to file agreed revised conditions by the close of business on 13 September 2006. 3. The matter is set down for call over before the Registrar on 20 September 2006. 4. Liberty to re-list before me on two days notice if required and; 5. If directions one and two are complied with I will make orders in chambers and vacate the call over date. Tim Moore Commissioner of the Court 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.