Land and Environment Court of New South Wales Chappelow v Sutherland Shire Council [2005] NSWLEC 56 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANTS G & J Chappelow PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 11237 of 2004 CORAM: Moore C KEY ISSUES: Development Application - Easements - Subdivision :- BGP Properties Pty Ltd v Lake Macquarie City Council (2004) NSWLEC 399; CASES CITED: Tenacity Consulting v Warringah Council 2004 NSWLEC 140 DATES OF HEARING: 17 February 2005 EX TEMPORE JUDGMENT DATE : 02/17/2005 Mr C Leggat, barrister INSTRUCTED BY Macedone Willis LEGAL REPRESENTATIVES: RESPONDENT Mr C Mathieson, solicitor Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 17 February 2005 11237 of 2004 G & J Chappelow v Sutherland Shire Council This decision was given as an extemporaneous decision at an on site hearing. It has been revised and edited prior to publication. JUDGMENT 1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Sutherland Shire Council (the council) on 13 October 2004 of Development Application 2004/0948 being an application to realign the boundaries between Lot 1119 DP 752064 and Lot B DP 405367. As part of that process, the applicants seek consent to erect a new dwelling on the southern of the two new allotments (that is Lot 2) and alterations to the existing brick residence on Lot 1 in order to permit the creation of an effective access to the proposed dwelling on Lot 2. The whole of the site is presently known as 2 Bayview Road, Woolaware. 2 The proposal is permissible within the zone with development consent. 3 The council went through an exhibition and advertising process which resulted in objections from the neighbours at 2A and 4 Bayview Street. 4 During the course of the hearing, I have had the assistance of the evidence of the court appointed planning expert, Mr M Ball, and I have also heard (after rejecting an objection from Mr Mathieson, solicitor employed by the council to my doing so), further planning evidence from Ms D Laidlaw, an expert planning witness on behalf of the applicant. 5 Setting aside for the moment the question of the objections raised by the neighbours at 2A and 4 Bayview Road, the two matters which remained of concern to the council were: o the nature of the proposed access way of Lot 1 to the east of Lot 2 to enable Lot 1 to have access to the water; and o proposed retention of the existing boat shed at the south western extremity of Lot 2. 6 The council has put the proposition that, if the boat shed were to be removed and there were to be modifications to the nature of the access permitted from Lot 1 to the water, the council would be content for the Court to grant the application. 7 During the course of the inspection of the site, I raised two matters of concern with respect to the proposed access to Lot 2 from Bayview Road. The first of those related to the question of whether or not a common access point from the road was acceptable rather than the separation into two driveways, which would be cost-full. Mr Ball's position (and it is consistent with the objections raided by the residents of 2A and 4 Bayview Road concerning parking) was that, despite the possible vehicle conflicts which may arise, the benefits of a single driveway access compared to two driveways accesses outweigh the disadvantages in that there is not a further fragmentation of the available on-street parking in Bayview Road. 8 I accept, that the disbenefits would out way the benefits and therefore a single access point is appropriate. 9 The second matter was the nature of the access way to Lot 2. The original plan provided for an access handle on the title of Lot 2 that was 3 m wide and a separate right carriageway a further 960 mm wide that would be immediately adjacent to and extend up to the built form of what will remain of the existing residents and Lot 1. 10 During the course of the site discussions concerning the absence of compliance with the side setback of 1.5 m that is otherwise required for residential dwelling houses in the zone, I understand that the applicant agreed to amend the plans to delete the right of carriageway of 960 mm wide and simply retain a 3 m wide access handle on title of Lot 2. 11 The applicant also agreed to amend the plans so that the window of the living area of the retained dwelling would not have fenestration in its front living area onto the driveway but the fenestration would be moved somewhat to the east and separated by ~ 600 mm or so from the corner of the building. There is also to be rearrangement of fenestration of the two bedrooms on the western side of the retained residence in order to make them highlight windows. There might be other consequential arrangements to fenestration of skylights or the like that may be considered by the applicant's architect as part of dealing with that issue. 12 Those changes having been accepted by the applicant, I am satisfied that the aspect of concern to the Court has been resolved. 13 There are two other outstanding issues to deal with before setting out my reasons why I am satisfied that the other issues, raised by the resident objectors, do not warrant refusal of the application. These are: o the retention of the boat shed; and o the proposed eastern access corridor from Lot 1 to the water. 14 Turning to the retention of the boat shed, I am satisfied that it would be appropriate to require the boat shed to be removed and that the entirety of the structure (including the slip rails which do not access the area where the boat shed is presently located) should be removed. I would add the comment, that I would not see any impediment if there were subsequently to be slip rails which in fact access the site of the to be demolished boat shed. 15 I reached this conclusion for the following reasons. The first is that cl 20 of the Sutherland Shire Local Environment Plan 2000 (the LEP) requires in cl 20(5)(b) that development consent must not be granted to the development the land affected by the foreshore building line unless steps are taken in effect to remove structures that otherwise encroach on that building line. 16 That includes not merely the structure known as the boat shed but, by virtue of the provisions of the last part of cl 20(5)(b), the other structure which is described as a boat port of immediately to the south of the boat shed. 17 Ms Laidlaw gave evidence on behalf of the applicant that there was generous compliance with the numerical requirements and that boat sheds were consistent with the pattern of water front development in the vicinity. She also said that the two sides of the head of the bay, which are the relevant setting in which to consider the proposed development, are different and indeed should not be regarded as if they were heads in the sense of Sydney Harbour having heads. 18 Mr Ball, on the other hand in his Statement of Evidence, sets out a variety of the reasons why he considers that the boat shed would be removed. 19 The view of the boat shed and the proposed new dwelling from the east across the bay to the west would, in my opinion, be entirely alien to and inconsistent with the view in the opposite direction to the structures on the other side of the bay at 3 Wren Place (which also has the advantage of borrowed landscaping from 2 Christopher Place which extends significantly, to the south along the foreshore). 20 However, I am satisfied that the sense of enclosure at the end of the bay is provided by appropriately by its two arms in a presentation that would have a greenery or open space area on either side at the end. 21 What is sought in this case is a significant developmental benefit for the applicants. As McClellan J said in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) NSWLEC 399 at para 118, the position is that: 118. In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 22 I do not believe that the applicants can take significant comfort from the fact that boat sheds are permitted and they may be permitted in the future under some circumstances. 23 I am satisfied that this project would result in acceptable environmental impacts with the removal of the boat shed and the boat port but that, if that were not the case, the environmental impact of the presentation of the continuous mass of the proposed dwelling plus the boat shed would be an unacceptable environmental impact as well as being contrary to the objectives of cl 20(1)(d) of the LEP as expanded upon by cl 20(5). 24 In the present application, the applicants also seek to erect an entirely new dwelling to the south to the otherwise major dwelling building line to the west and to obtain a significant benefit as a consequence. There is an entirely reasonable expectation that the countervailing community benefit embodied in cl 20(5) of the LEP should be invoked 25 With respect to the access right down the east of Lot 2, I am satisfied that the underlying benefit that the council seeks to deprive the applicant of is any possible future possibility of construction of some form of permanent boat or vehicle access way. I am satisfied that that is an appropriate objective for the council to seek. 26 However, the council seeks to narrow the proposed water front access way to 2 m and to require that it be a right of carriageway pursuant to sch 8 of the Conveyancing Act 1919 rather than a fee simple right of access vested in the proprietors of Lot 1. 27 In discussions with the representatives of the parties, I asked them to consider and address me upon the option of an access way that was on the title of Lot 1 for a considerable portion but not to the edge of the water with the residual portion of the access to the water being by way of a right of carriageway or right of footway pursuant to the Conveyancing Act, thus not giving a right that would be in fee simple. This would have the effect of removing the ability of the owner of Lot 1 to seek consent from the council to construct some form of structure at the interface with the water in the southern end of such access way. 28 I am persuaded that an intermediate point would be appropriate. Subject to restrictions that would remove the options to the applicants or whoever might subsequently become the owner of Lot 1 to construct some form of waterfront structure of the southern end, it is not inappropriate to permit ownership of portion of the access handle to vest in the owners of Lot 1 so that they can have picnic tables and the like there provided that is consistent with the relevant planning restrictions. 29 During the course of the hearing the applicants sought and were granted leave to amend the plans to terminate the fee simple element of the access way ~14 m from the southern end of the proposed access way and I consider this is appropriate. 30 I consider, however, that the residual right of access way which can be by an instrument created in conformity with sch 8(1) of the Conveyancing Act 1919 should be restricted to 1.8 m wide so as to remove there being any realistic right of carriageway which would permit the movement of a wheel vehicle of any description across it. I have considered that a sch 8(1) right of carriageway is appropriate because that would permit the carriage of dinghies, canoes and the like across such right of carriageway. 31 I now turn to address the issues raised by the objectors. 32 The matters raised by the objector at 2A Bayview Road are essentially subsumed and contained within the objections raised by the objector at 4 Bayview Road. I do not need to consider them separately as I necessarily do so when considering those raised by the objector at 4 Bayview Road. 33 There are number of objections raised which are of substance. The first of those was that, despite the position taken by the council and the applicants, the application breached the foreshore line for reasons set out in the letter of objection. However, I have been satisfied on the material tendered on behalf of the applicant that the relevant foreshore building line is that set out in an aerial photograph contained in Exhibit 2 and that the existing Lot 1119 was, in fact, in legal existence prior to the relevant date. The relevant extract from a title search had also been tendered. Therefore that that which is proposed is in fact is not in breach of the foreshore building line. 34 With respect to the question of loss of privacy, I note that, during the course of the inspection, I raised with the applicants the possibility of realignment of the propose boundary between Lots 1 and 2 in order to provide a greater sweep and chamfering to the head of the driveway to the proposed residence on Lot 2 in order to provide greater landscaping and thus protection to the residents of 4 Bayview Road. The applicants have agreed to amend the plans in that respect and leave has been granted for that amendment. 35 I am satisfied in this regard that the changes will ameliorate, to a significant extent, the possible impacts of light and noise on both bedroom and living areas of the residents of 4 Bayview Road and therefore this does not now provide any basis for concern let alone refusal. 36 The residents of 4 Bayview Road also pressed that they will lose views from various rooms of their dwelling. 37 The dwelling is a three level dwelling with bedrooms on the top and bottom levels and the dining room on the middle level. Each of the three levels has an extensive deck or balcony/open area in front of it. 38 I consider the question of the impact of views having looked at the view from each of those locations both from within and from the external areas of the dwelling assisted by an informal height pole erected on the site representing the highest point on the furthest (south eastern) corner of proposed dwelling. 39 I have considered the views and the impact there on in conformity with the principles on the view sharing set out by Roseth SC in Tenacity Consulting v Warringah Council 2004 NSWLEC 140. I choose to adopt those principles and apply them to the present case. 40 The principles that are relevant are the third and fourth of the Senior Commissioner's principles – these being to assess the impact of the view and to consider the reasonableness of the proposal, particularly when it might be a complying proposal. I am satisfied that the impact on the views from those locations, when compared to the generosity of the views directly to the south across the water, is minor. The impacted views are also views to the side rather than views immediately facing the relevant parts of 4 Bayview Road. 41 Secondly, I am satisfied that, as I have otherwise dealt with, the proposal is a compliant one and therefore the entitled to a more permissive impact on views. 42 Even had I had otherwise been satisfied that the view impact was acceptable as a general proposition, I am fortified in this view by the fact that my determination that the boat shed and boat port should be demolished will, as Mr Ball correctly pointed out, afford a degree of amelioration to and an opening up of the views to the south east from 4 Bayview Road. The views impacted are, in any event, significantly obstructed by vegetation on 4 Bayview Road. 43 The evidence that was given by one of the owners of 4 Bayview Road concerning his expectations of impact on the value of his property are not ones that are appropriate for me consider in the determining of a development application of this nature as it is a development application that is permissible, with consent, in the zone. 44 He also raised a number of other matters relating to the possible impacts on him and his family of cooking and other odours from the site. Such possible impacts are ones which necessarily potentially arise in day to day living in an urban area. The Court is entitled (and it is well settled the Court is entitled) to expect a reasonable degree of neighbourly forbearance from parties living in residential areas in a major conurbation. I am satisfied that absent any expert evidence that would demonstrate to me that there would be noxious odours of a nature not normally expected from a residential dwelling that there is no basis for refusal on that ground. 45 I finally can with the questions of parking; the removal of trees; building on reclaimed land and adequacy sewerage line access. 46 The environmental impact that would follow from requiring the additional excavation and hard stand area to provide visitor parking on the site would significantly outweigh any marginal impact that might be created by demand for on street parking in Bayview Road. Whilst the parking shortfall is a detriment arising from the development, it is not such as to warrant refusal given my consideration and determination of the remaining matters. 47 The council and the expert witnesses do not consider that there is any issue concerning the removal of trees; building on reclaimed land and adequacy sewerage line access. I accept these views. 48 I have therefore concluded that: 1. the appeal should be upheld; and 2. a development consent for purposes of subdivision to create the two allotments by realignment the boundaries; the proposed works (as will be amended) to the existing residence on Lot 1; construction of the new residence on Lot 2 and the demolition of the boat shed and boat port and slip rails on or adjacent to Lot 2 should be granted development consent subject to conditions. 49 Those conditions will require further settlement between the parties as a consequence of my decision and it will also require the submission revised plans that need to be settled by the parties in order to give the effect to this decision. 50 I therefore propose to set the matter down for Callover before the Registrar on 10 March in order to enable the parties to have sufficient time to deal with matters arising from my determination. I grant leave to the parties to re-list the matter before me at 9am on two days notice if necessary. I indicate that, if agreed plans embodying the terms of this decision together with agreed conditions embodying the terms of this decision are filed with the Court (such conditions being in rich text format document conformable with what will be Practice Direction No. 2 of 2005), I will issue the orders in chambers and vacate the callover before the Registrar. Tim Moore Commissioner of the Court 04/04/2005 - Spelling correction - Paragraph(s) 1 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.