Land and Environment Court of New South Wales CITATION : Ackerman v Blue Mountains City Council [2005] NSWLEC 261 APPLICANT Sheila June Ackerman PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 11145 of 2004 CORAM: Brown C KEY ISSUES: Development Application :- erection of dwelling house - height - bulk - scale - drainage conditions Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan No 4 LEGISLATION CITED: Blue Mountains Local Environmental Plan No 1991 draft Blue Mountains Local Environmental Plan 2002 DATES OF HEARING: 19/05/05 DATE OF JUDGMENT: 07/11/2005 EX TEMPORE JUDGMENT DATE : 05/19/2005 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr T Cork, solicitor SOLICITORS McPhee Kelshaw JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 11 July 2005 11145 of 2004 Sheila June Ackerman v Blue Mountains City Council JUDGMENT 1 This is an appeal against the refusal of Development Application No. X03/0448 by Blue Mountains City Council (the council) for the erection of a two-storey dwelling at 42 Bullaburra Road, Bullaburra (the site). 2 The matter was conducted as s 34 Conference on 19 May 2005. The judgement outlines the oral reasons given for the approval of the development application on the day of the hearing. The conditions of approval were the subject of further discussion with a telephone mention on 3 June 2005 and a number of written submissions. 3 The site is Lot 1 in DP 589632. It has no improvements and takes the form of a large battle-axe allotment with a frontage to Bullaburra Road of 22.53 metres. Some remnant vegetation is located at the street frontage however the rear portion of the site contains a moderately diverse range of indigenous plants that are indicative of swamp vegetation. It has a total area of 6529 square metres. 4 The general area is exclusively detached dwelling houses. The area is a predominance of single storey dwellings although more recent dwellings and additions are generally two-storey. Because of the relatively steep topography of the area some single level dwellings have under croft areas. 5 The proposal seeks to erect a dwelling near the Bullaburra Road frontage. The proposed dwelling is two storeys in height with a substantial under croft area at the rear because of the fall of the land away from the street. The under croft area is shown as a storage area. 6 The area of the site near Bullaburra Road (and the location of the proposed dwelling) is zoned Residential 2(a1) under Blue Mountains Local Environmental Plan No 4 (LEP 4) with the rear portion zoned Residential Bushland Conservation Blue Mountains Local Environmental Plan No 1991(LEP 1991). The central portion of the site is designated as a Protected Area - Environmental Constrain Area under both LEP 4 and LEP 1991. 7 Clause 39 of LEP 4 provides for a maximum building height of two storeys. There agreement that the proposed development satisfied this requirement. 8 The site is also subject to draft Blue Mountains Local Environmental Plan 2002 (the draft plan). The Bullaburra Road portion of the site (currently zoned Residential 2(a1)) is to be zoned Living - Bush land Conservation and the rear portion is to be zoned Environmental Protection - General. The central portion of the site is designated as Protected Area - Ecological Buffer Area and the area immediately adjacent to the Environmental Protection zoned land is designated as a Protected Area - Slope Constrain Area. The erection of a dwelling house within the Living - Bush land Conservation is permissible with council consent. 9 Schedule 2, Part 3, Division 1 of the draft plan provides requirements for maximum building height, maximum height at eaves, front setback, site coverage, cut and fill and landscaped area. There was agreement that the proposed development satisfied these requirements with the exception of the maximum building height and maximum height at eaves. 10 The council filed a Statement of Issues containing four issues. The issues relating to the inconsistencies between plans (Issue 1), appropriate floor levels (Issue 2) and drainage details (Issue 3) were satisfactorily addressed through the submissions of further engineering details. 11 The remaining issue (Issue 4) related to the bulk and scale of the proposed development. 12 A number of local residents provided evidence on the site view. The Court also had the benefit of the written submissions provided to the council when the development application was advertised. There was a general concern over the appearance of the proposed dwelling and the impact it would have on the character of the area. 13 Mr Paul Weston, and environmental health and buildings surveyor provided evidence for the council. The applicant was represented by her husband. The applicant provided no expert evidence although a number of documents were tendered to dispute the evidence presented by the council. 14 Mr Weston stated that the proposed development was unacceptable in terms of its bulk and scale largely because of the non-compliance with the maximum building height and maximum height at eaves requirements in the draft LEP. While there was some disagreement over the extent of the breach I accept Mr Weston's calculations that the maximum building height exceeds the 8.5 metre requirement by 0.3 metres and maximum height at eaves requirement of 6.5 metres by 1.4 metres. 15 On the issue of bulk and scale, the Court had the benefit of a view of the site and surrounding areas with representatives from both parties. 16 In considering the evidence and with the benefit of the site view I found that the proposed dwelling did not impose an unacceptable level of bulk and scale in the streetscape. In coming to this conclusion the following matters supported the applicants position: + compliance with the requirements of LEP 4, + the variation to the overall height requirement in the draft LEP occurs over a relatively small area + the variation to the maximum height at eaves requirement occurs at the north east corner of the building and while visible from the proposed driveway is generally consistent with the scale and form of recent additions to the adjoining dwelling to the east, + even if the draft LEP is certain and imminent, the savings provisions capture the development application, + even if the requirements in the draft LEP are used, the departures from the requirements can be supported because of the steep topography, the limited area for development and the limited impact of the breaches on the streetscape, + the existence of other two-storey residential dwellings in the area, + the development application has been with the council for over two years and at the time lodgement, the draft LEP was considerably less advanced, and + the agreement by Mr Weston that the streetscape appearance of the dwelling when viewed directly from Bullaburra Road is acceptable. 17 There was dispute over a number of the conditions sought to be imposed by the council. The conditions at issue are: 18 Condition 15: this condition provides for the development and implementation of a Native Vegetation and Weed Management Plan. Condition 15(c) provides for the rehabilitation of the swamp communities located on and adjacent to the steep embankment to the rear of the proposed building. The applicant submits that is not possible to plant any vegetation in this area, as it would contravene the requirements for bushfire protection. The council submits that the wording has been amended to confine the require rehabilitation to an area "west of the existing track formation and easement". Additionally, the council submits that the plan should be prepared prior to the issue of a Construction Certificate rather than an Occupation Certificate as suggested by the applicant. 19 Of this condition, I agree with the council submissions. The area, the subject of the rehabilitation has been limited by the council and is appropriately described in the condition. I also accept the submission that the plan should be prepared prior to the issue of the Construction Certificate. 20 Conditions 20, 22, 23 and 24 and 26: these conditions address works that are required to be carried out on council or public land. In this case the applicant, as part of the drainage strategy, is required to construct a 200 mm high compacted and grassed kerb and table drain to divert stormwater flows from the street to an existing drainage pit in the road reserve. The applicant submits that the kerb should be constructed by the council, as it is to control stormwater from the street and is not associated with the construction of the proposed dwelling. The council maintains that 200 mm grass kerb (or its equivalent) is a necessary component of the drainage design to protect the proposed dwelling from severe storm events. 21 In relation to these conditions, I agree with the council that they should be retained. As part of the discussions on the conditions the council undertook to further assess the need for the 200 mm high compacted and grassed kerb. It was suggested that the dwarf wall along the property boundary may serve the same effect as the grassed kerb however it would need further consideration by the council's engineers. On further consideration it was concluded that the dwarf wall would not allow overland flows to the collected and directed to the existing drainage pit in Bullaburra Road and as such the grassed kerb was still required. 22 As I understand this was a fundamental component of the drainage design formulated by the applicant's drainage engineer to protect the proposed dwelling from severe storm events. The need to collect overland flows at this point is necessary because the subject site is located at the low point in Bullaburra Road. I accept that the council's argument that is appropriate that the grassed kerb on the footpath be undertaken by the applicant, as the sole purpose of this work is to protect the proposed dwelling. It follows that the work should be undertaken with the usual safeguards required by council for work on public land even though the extent of the work required is not significant in engineering terms. 23 The Orders of the Court are: 1) The appeal is upheld. 2) Development Application No. X03/0448 for the erection of a two-storey dwelling at 42 Bullaburra Road, Bullaburra is approved subject to the conditions in Annexure A. 3) The exhibits are returned with the exception of exhibits 4, 7 and D. ____________ G T Brown 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.