Land and Environment Court of New South Wales CITATION : Chew v Lane Cove Council [2010] NSWLEC 1256 APPLICANT Melvin Chew PARTIES : RESPONDENT Lane Cove Council FILE NUMBER(S) : 10417 of 2010 CORAM: Morris C KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- Views Standard Instrument (Local Environmental Plans) Order 2006. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lane Cove LEP 1987 Lane Cove LEP 2009 DATES OF HEARING: 13 September 2010 DATE OF JUDGMENT: 13 September 2010 EX TEMPORE JUDGMENT DATE : 13 September 2010 APPLICANT LEGAL REPRESENTATIVES: Mr P Clay, Barrister RESPONDENT Mr A Seaton, Solicitor, Marsdens. JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Morris C 13 September 2010 10417 of 2010 Melvin Chew v Lane Cove Council JUDGMENT 1 Commissioner: This is an appeal against conditions attached by Lane Cove Council to a development consent. The consent authorises the demolition of an existing dwelling, and the erection of a new two-storey dwelling with basement garage on a third level and swimming pool at No. 11 Kellys Esplanade, Northwood. 2 Leading up to the hearing, the applicant prepared amended plans, which reduce the height of the building, and move an ensuite component from the southern end of the building. 3 It is these amended plans that are before the court for consideration and, as shown by the joint planning report, are now considered acceptable to the council. The parties are seeking consent orders from the Court, allowing the appeal in part by approval of the amended plans. The site 4 The property comprises Lot 1 DP 1045331, No 11 Kellys Esplanade, Northwood (the site). The site is located at the southern extremity of Kelly's Esplanade, which is a cul-de-sac and access is obtained from the bulb of that road. The site, apart from the curved frontage to Kellys Esplanade, is a triangular shaped allotment and has an area of 862 square metres. It is elevated above the road and currently a stairway provides pedestrian access to the site across the adjoining property to the west. A garage is erected at the road level and to the street boundary and a single storey brick dwelling house with tiled roof is erected towards the centre of the site. It is proposed to demolish the dwelling and garage. 5 The site falls from east to west. Statutory Controls 6 At the time of lodgment of the application the land was zoned Residential 2(a2) under the provisions of Lane Cove LEP 1987. Since that time Lane Cove LEP 2009 has been made and the land is now zoned R2 under that plan. 7 Neither the applicant nor the council pressed any issues which arose from the rezoning of the land as the change has the effect of maintaining its residential classification and similar aims and objectives apply that fit the template mandated by the Standard Instrument (Local Environmental Plans) Order 2006. 8 A dwelling house is permitted with consent under both instruments. The consent 9 The site and the adjoining residential properties enjoy expansive views over Woodford Bay and the Lane Cove River, extending to the city skyline. It is these views that are sought to be protected by the council through the imposition of consent conditions that would limit the height of the new dwelling. 10 The original consent issued by the council included a number of conditions that required amendment to the plans of the dwelling. It is those conditions to which this appeal relates. These are conditions 2a and b and the first dot point of condition 5. 11 Initially, the appeal, also addressed conditions three and four, however, the setbacks of the proposed swimming pool have been defined on the amended plans, and it is accepted by the parties that the location of the proposed pool is in full compliance the requirements of the Council's Code for Dwelling Houses Fences, Private Swimming Pools and Outbuildings (the code). 12 Condition 2a of the consent requires that: the total height of the development be reduced by 1 m, having regard to the recommendations 3.1 and 3.2 from the report prepared by Dr Richard Lamb dated to June 2010 on page 24. PLANS ARE TO BE AMENDED TO COMPLY PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. 13 Condition 2b states that: The ensuite bathroom at the south east corner be deleted. PLANS ARE TO BE AMENDED TO COMPLY PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. 14 Condition 5 reads as follows: in order to reduce the potential to overlook the adjoining property to the south, at 14 Kellys Esplanade, the following privacy measures are required, unless the owner of this property confirms in writing to the principal certifying authority prior to the issue of a construction certificate to the contrary:- · both front first floor ensuite windows of the main bedroom are to be finished in obscure glass up to a height of 1.7 m above the finished floor level, or alternatively, the sill height of each window is to be raised to this same level; and · the balcony off the main bedroom is to be deleted. The amended plans 15 The first floor plan of the proposed dwelling has been amended by the deletion of the proposed ensuite at the southern end of the dwelling and the internal redesign of the area adjacent to proposed bedroom one so as to provide the ensuite within the footprint of the approved dwelling. To compensate for the floor area lost by this redesign, the proposed study and guest room have been relocated to the rear or east of the dwelling. This amendment is in response to condition 2b however, as the ensuite is not being deleted but rather relocated, the applicant is seeking clarification of the intent of the condition. 16 It is clear on observation of the site that the council intended the area at the southern end of the building to be deleted so as to preserve views from the properties to the east of the site. 17 The main change to address the council's requirement of height reduction is the deletion of a proposed architectural feature above the foyer and the reduction in the roof height at the rear of the house to RL 29.6. The height of the dwelling at the front or western elevation has been reduced by 600 mm so that no point along that elevation exceeds RL 28.6. 18 The plans before the court, and provided as Exhibit D address those changes. Site view 19 In order that the impact of the proposed changes could be assessed, I inspected the subject site and a number of properties to the east in the company of the owners of those properties and the parties. 20 Height poles had been erected to detail the location and height of the originally proposed dwelling, and in particular, the height of the rear or eastern wall, which is the wall that most impacts the views of the adjoining neighbours. These poles had been erected at the initially proposed height and building footprint and I heard from the council's expert planner Mr Pagan and the applicant's expert planner, Mr Kennan, as to the impact of the proposed reduction in building length and height on the views from the adjacent residential properties. 21 Both Mr Pagan and Mr Kennan are of the view that the height of the dwelling built to accord with the amended plans would provide minimal view loss to all of the adjoining properties and that the extent of view loss would be acceptable, being either a peripheral view, or views of vegetation. Both experts concluded that the main water views from the living areas of the properties would be retained. 22 After hearing the opinion of the experts when viewing the proposed development from within the adjacent dwellings, I am satisfied that the amended plans will make an appreciable difference to the original proposal and protect the majority of the views from all of the dwellings we inspected. 23 I heard from Mr Murphy, the owner of No. 71 Northwood Road, who was concerned that the failure to reduce the front or eastern roof height by 1 m would not go far enough to protect the views he enjoyed from his property. I am satisfied after hearing from both Mr Pagan, and Mr Kennan that the amended plans do in fact protect that view. 24 I also heard concerns from the immediate neighbours, regarding possible glare from the roof and I note that condition, 29 of the proposed development consent conditions requires that all metal deck roofs are to be a ribbed metal profile or colourbond corrugated galvanised or zincalume iron, in a mid-to dark range colour, and having an approved anti-glair finish. 25 I am satisfied that this condition, addresses the concerns of those residents. Findings 26 Overall, the planning experts agree that the proposal, as detailed in the amended plans before the court, represent positive benefits in terms of protecting the views enjoyed by residents of the adjoining properties. I agree. 27 Importantly, I note that the height of the proposed dwelling is less that that allowed in section 3.3 of the code. 28 I am satisfied that the consent conditions sought to be imposed by the council will ensure that the roofing material will not unduly impact on the adjacent sites by way of glare. 29 The relocation of the ensuite removes the privacy concerns that condition 5 was to address and accordingly, I agree with the experts that the first dot point in that condition should be deleted. Orders 30 The orders of the court that: 1. The appeal is upheld in part. 2. Development application D235/09 for the demolition of the existing dwelling house, the erection of a dwelling house on three levels, a swimming pool, earthworks and associated retaining walls on Lot 1 DP 1045331 and known as 11 Kellys Esplanade, Northwood is approved subject to the conditions in Annexure A. 3. The exhibits other than exhibits C, and D may be returned. ___________________________ Sue Morris 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.