Land and Environment Court of New South Wales CITATION : Ristevski v Sutherland Shire Council [2007] NSWLEC 441 APPLICANT Pida and Elizabeth Ristevski PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10251 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Attached Dual Occupancy, streetscape impact, drainage, privacy Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 Sutherland Shire Local Environmental Plan 2006 DATES OF HEARING: 12/07/07 EX TEMPORE JUDGMENT DATE : 12 July 2007 APPLICANT Mr P. Vergotis, solicitor of Cutler Hughes & Harris LEGAL REPRESENTATIVES: RESPONDENT Mr A. Markham, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 12 July 2007 10251 of 2007 Pida and Elizabeth Ristevski v Sutherland Shire 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 demolition of an existing dwelling and construction of an attached dual occupancy at 232 Gymea Bay Road, Gymea Bay. 2 For the appeal number of issues were raised, which may be summarised as follows: o Adequacy of detailed information, o Drainage; as the land falls are away from the street, no downstream easements are proposed, o Landscaping, o Matters raised by objectors, including the facade design, streetscape impacts and overlooking opportunities. 3 In response to these issues, further amendments were undertaken resulting in reasonable compliance with council controls and councils' agreement to enter consent orders. The site. 4 The subject site is described as Lot 1 DP 524066. It has a total area of 898.9 sq m and a frontage of 23.47m to Gymea Bay Road. The site slopes from the south west to the north east corner, away from the street. 5 There is a single storey fibro cement dwelling situated on the land. The proposal. 6 This proposal involves the demolition of the existing dwelling and construction of a 2-storey attached dual occupancy. Planning Controls 7 Sutherland Shire Local Environmental Plan 2000. Under which the site is zoned 2(a1) Residential and it is located within a Foreshore Scenic Protection Area. The proposed development is permissible with consent. 8 The objectives of the 2(a1) Residential zone are: 9 A residential environment: (a) where the scale, amenity and general character of the area is preserved, and (b) where the streetscape is characterised by detached 1 and 2 storey residential buildings, and (c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house developments, and (d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity. 10 Sutherland Shire Local Environmental Plan 2006. Under this LEP, the site is in Zone 3 -Environmental Housing (Bushland). The proposed development is permissible with consent. The objectives of Zone 3 are: (a) to minimise the risk to life, property and the environment from bushfire, (b) to allow development that is of a scale and nature that complements the natural surroundings of the zone, (c) to protect or restore existing bushfire and other natural features, (d) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impact of development, (e) to minimise the impact of development in the vicinity of heritage items, (f) to allow the subdivision of land only where the size of the resulting lots makes them capable of development that retains or restores natural features, while allowing a sufficient area for building footprints and bushfire protection measures. 11 Stormwater Management Development Control Plan. This DCP contains objectives for stormwater management and design principles. The evidence. 12 The evidence presented to the Court includes the initial council planners assessment report, IHAP report and a detailed s 79 C assessment of the amended proposal by Ms C Howell, Councils environmental assessment officer-planner. 13 This assessment includes a comprehensive compliance table relative to the controls in SSLEP 2000 and 2006, demonstrating the applications compliance with these controls. 14 The assessment also includes a review of the matters raised by objectors and states: 5.1 Landscaped Area Clause 35(2) of Sutherland Shire Local Environmental Plan 2000 requires the site to have minimum landscaped area of 50%. The proposed development originally included large areas concrete / paving on the eastern and western sides of the dwellings as landscaped area. It is not considered that these areas constitute landscaped area and as such the applicant has agreed modify their proposal through condition to replace the concrete with red scoria and planting. T' change will increase the pervious area of the site and the amount of greenery.. It is now considered that the proposal meets the minimum requirements of landscaped area. 5.2 Streetscape The original development application was refused by Council on the basis of streetscape and the applicant subsequently made changes to the design in the preparation of the design for the s.82A review application. These amendments significantly simplified the design and produced a more cohesive facade. While the proposed development will be different from what currently exists, the existing streetscape is an older traditional style and character, it is considered that the development will be acceptable within the likely future streetscape character. In the interim period the proposal is considered to be acceptable. 5.3 Drainage The applicant has lodged an amended drainage plan and as detailed above Council's Engineer has advised that this, plan is now acceptable. In relation to the matters raised by the objectors in relation to drainage, the proposal no longer proposes to drain to the private drainage easement located in the neighbouring right of carriageway. In addition, Council's Engineer has advised that the amended drainage plan makes extensive allowance for storage of water on site and is considered unlikely that there will be any increased run off to adjoining sites. 5.4 Privacy Impact on No.230 (located to the west of the development) Currently No. 230 is afforded increased privacy because the existing dwelling is setback approximately six (6) metres from the boundary. The proposed dual occupancy will be located a minimum of 1.7m at the lower level from the boundary and increasing to a maximum of 3.235m adjacent to the kitchen. At the upper level the entire development is setback a 3.235m from this boundary. The proposed development will look onto a bedroom window, which is not considered to be a high traffic room, and bathroom, toilet and laundry windows, which are considered non-habitable rooms. However, even given that these windows are not considered to be high traffic living rooms to ensure an appropriate privacy relationship between the development and this neighbour appropriate conditions have been included to require planting along the boundary fence and to require the bedroom on the northern corner of the development to have highlight windows. Any concern about the impact from the balcony is considered to be unfounded as it is located at the front of the development, off the main bedroom and is only one (1) metre in width. It is considered that the balcony serves to add architectural interest the to development and is unlikely to be frequently used. In any case it primarily overlooks the street. In relation to concern expressed about raised courtyard levels, the proposal has now been modified to ensure that these are at or about existing ground level. Impact on No.232A (located to the north of the development) Some degree of overlooking is often unavoidable from a two storey development however the setback of the upper level, and conditions in relation to window design and tree planting along the rear boundary will ensure that any overlooking is minimised. Impact on No.234A (located to the north east of the development) The proposed development has been modified as well as conditioned to require the bedroom window located on the eastern corner to be a highlight window. This design change together with proposed planting in the eastern corner of the development will ensure that any privacy impact is minimised. Impact on No.234 (located to the east of the development) Currently No. 243 is afforded increased privacy as the existing development is setback approximately four (4) metres from the boundary and this together with the existing right of carriageway adjoining the site results in a separation of approximately eight (8) metres between the existing development and No.234. The proposed dual occupancy will be located a minimum of 1.7m at the lower level from the boundary and increasing to a maximum of 3.235m adjacent to the kitchen. At the upper level the entire development is setback a 3.235m from this boundary. To ensure an appropriate privacy relationship between the development and this neighbour appropriate conditions have been, included to require planting along the boundary fence adjacent to the dwelling and to require the bedroom on the eastern corner of the development to have highlight windows. Overall Privacy Overall, design modifications, either by the applicant or through conditions of development consent, together with planting shall ensure that there is an appropriate level of privacy between the proposed development and its neighbours. 5.5 Loss of Light The residents of No.230 were concerned about the impact of the development on the amount of light that their dwelling receives. The proposed development is located to the west of No.230. The Shadow diagrams indicate that there will be some overshadowing of this dwelling in the morning, however for the rest of the day there will no impact. This impact is considered reasonable given the properties orientation. No.230 has its private recreation areas orientated to the north and the proposed development will have no impact on this area. 5.6 Odours The applicant indicates on their landscape plan that the garbage bins will be stored adjacent to the side boundaries. There is no bin enclosure as such and the storing of bins for a single dwelling adjacent to the side boundary fence is not considered to be unusual. Generally, standard residential bins do not generate offensive odours and as such their proposed location is considered to be acceptable. 5.7 Fencing & Air Conditioning The plans do not indicate any changes to the existing fencing apart from an additional 300mm of lattice along the eastern boundary. Dividing fences generally fall within the provisions of the Dividing Fences Act and would be a matter for the parties to work out. In relation to air conditioning units, none are indicated on the plans however subject to certain requirements air conditioning units fall within the provisions of exempt development under Sutherland Shire Local Environmental Plan 2006. 5.8 Colour Scheme The applicant has provided Council with schedule of finishes. The proposed schedule is considered to be satisfactory apart from the proposed white roof. A suitable condition of has been included in the development consent to replace the proposed white roof with a more appropriate colour. 5.9 Tree Removal The existing conifer trees located along the north western boundary are proposed to be removed. These trees are not covered by Council's Tree Preservation Order and Council raises no objection to their removal. 5.10 Car Parking The proposed development fails to technically comply with the requirement that a maximum of one garage space is provided to each unit and that additional required car parking shall be provided by either a car port or an uncovered car space. The objective of this control is to ensure that car parking does not dominate the streetscape and it is considered that the proposed tandem garaging achieves this objective and is therefore acceptable. 15 From this assessment, Ms Howell concludes that the amended proposal addresses the matters outlined in the statement of issues and is supported for conditional consent. Conclusions. 16 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the consent orders should be granted for this development. It is the form of development allowed by the planning controls and it demonstrates comfortable compliance with the numeric controls and zoning objectives. 17 Whilst the architectural style is of a modern nature, as compared to the neighbouring dwellings, nevertheless I accept Ms Howell's opinion that the proposal is compatible with the streetscape. I am also satisfied that this attached dual occupancy is situated on a relatively large allotment and that reasonable setbacks have been provided to maintain reasonable levels of privacy to neighbouring properties. The design incorporates high-level windows at the upper levels to restrict overlooking and also maintain reasonable neighbourhood privacy amenity. 18 In the absence of any challenge to Ms Howell's detailed assessment, I rely on the in granting the consent orders. Court Orders 19 By consent the Court orders: 1. The appeal is upheld. 2. Development Application 04/0585 in respect of 232 Gymea Bay Road, Gymea Bay is determined by the granting of consent, subject to the conditions contained in Annexure A to these consent orders. 3. The exhibits be returned except Exhibits 4, 5, A and B. NOTE : The Court notes the parties agreement to pay their own costs. ___________________ 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.