Land and Environment Court of New South Wales CITATION : Sky Design & Concepts Pty Ltd v Pittwater Council [2008] NSWLEC 1170 APPLICANT Sky Design & Concepts Pty Ltd PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11186 of 2007 CORAM: Hoffman C KEY ISSUES: Development Application :- addition to an existing building, Landscaping, Building envelope control, Desired future character, Scenic protection, View sharing, Shadow impacts, Solar impacts, Privacy impacts, Character, Height control, Site coverage-Environmentally Sensitive Land. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1993 draft Pittwater 21 Local Environmental Plan DATES OF HEARING: 12/02/2008 DATE OF JUDGMENT: 7 May 2008 APPLICANT Mr S. May, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Ms M. Carpenter, barrister Instructed by Ms T. Sheen of Malleson Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 7 May 2008 11186 of 2007 Sky Design & Concepts Pty Ltd v Pittwater Council JUDGMENT 1 Commissioner: This is a Class 1 Appeal No. 11186 of 2007 in regard to the refusal of an addition to an existing building to complete a 4-storey house at No. 220 McCarr's Creek Rd, Church Point, Pittwater. 2 The persons attending for the respondent were: Ms M Carpenter, barrister; Ms T Sheen, solicitor; Mr C Wilson, council town planner; MsJ Soo and Ms S Garland, assistants from council; Mr G Boston, representing Mr & Mrs Rowan, objectors of No. 222 McCarr's Creek Rd. 3 Appearing for the applicant was Mr S May, director of the applicant company, and resident of the site. The site and Setting 4 The site faces west and slopes down from the road to McCarr's Creek near its junction with Pittwater. The creek is perhaps 30-50m wide at this point and on the opposite embankment is a large public park with picnic shelters and BBQ's and boating facilities. Beyond the foreshore park rise the hills of Ku-ring-gai National Park. 5 On the north of the site is an old cottage. On the south of the site is a 2-storey split-level dwelling. As the evidence shows most adjoining and adjacent houses are oriented, skewed or setback to have views towards the creek mouth where there is a land-point and broadwater visible beyond. All the houses have direct views to the bush and parkland directly opposite across the creek. The statutes, controls and contentions 6 The applicable statutes are the Environmental Planning & Assessment Act 1979 and Pittwater Local Environmental Plan 1993, draft Pittwater 21 LEP, and adopted Pittwater 21 DCP 7 The reasons for refusal may be summarised as: 1. Inadequate information. 2. Lack of a landscape plan to address the increased site coverage of the proposal. 3. Lack of view sharing for the Rowan's of the view to the creek mouth mainly due to the non-compliance with the building envelope controls. 4. Lack of solar access for the Rowan's mainly due to the non-compliance with the building envelope controls. 5. Inadequate information on shadow impacts. 6. Loss of privacy for the Rowan's mainly from elevated decks of the proposal that look down into the Rowan's creek side deck and living room and kitchen windows. Whilst this may be solved by privacy screens, they would only increase the view loss and the shadow impacts. 7. McCarr's Creek Rd is a scenic route, and the council would prefer an open carport roof to the garage enclosure of the existing open elevated carspace structure, so that the view across to the national park could be glimpsed from passing cars. 8. The proposal exceeds the height control of 8.5m. 9. The proposal does not comply with the envelope controls. 10. The site coverage is excessive. The Evidence 8 The applicant had made a similar application in 2005 that Council had refused. A First Stage application was then made and approved by the Court, resulting in the existing 1-storey dwelling down near the foreshore of the site adjacent the Foreshore Building Line (FSBL), and an elevated open double carpark up at the street level. The fall from the street boundary to the waterfront embankment is about 12m over a side boundary length of about 30m. Since the land is more level along the foreshore embankment most of the fall is within a distance of 25m, making it close to a very steep 1:1 slope. 9 The above dimensions are approximate because all the drawings appear to be reduced copies of originals and are clearly marked "DO NO SCALE DRAWINGS" that meant, I was told, they are not to scale. This made factual checking of the plans very difficult and beyond the scope of this Hearing. The best that could be done is to work off the already built stage 1 structures, and estimate the figured dimensions from the plans. The applicant had erected a frame on top of the existing dwelling to show the profile of the southwest corner of the proposed house. This was of some assistance as that corner is the critical one for council's issues about the bulk and foreshore impact and the view and solar loss to No. 222 McCarr's Creek Rd, the latter owned by Mr Rowan. 10 The council officers did a rough check of the frame and concluded it was approximately correct. The council had held that the existing building is 2-storey already as there are standard height glass sliding doors to the subfloor of the structure from the embankment level. This was dispelled on inspection as it was observed the ceiling height in the subfloor is less than 2.4m so it could not be classified as "habitable rooms", and it is quite narrow at only about 2m deep to a concrete retaining wall. The applicant said it was only used for storage of water recreational equipment. 11 Nevertheless the respondent said this bottom level looks like a full storey when seen from the water or the parkland opposite the site, and makes the bulk of the proposal the same as a 4-storey house. 12 The allotment is below the minimum for new subdivisions in steep land, however it and adjoining and adjacent lots are old and have been allowed development in the past. The older cottages appear to be weekenders, but many have been replaced with permanent homes over the last 20 years or so. The lot is 369 sq m in area and has 11.4m frontage on a slight splay, so the square width between the parallel side boundaries is a little less. The current minima are 1200 sq m lot area and 16m width. So the applicant says the applicable DCP is difficult to apply, and complying development would not give reasonable accommodation. As a result exceptions should be allowed. 13 One part of the DCP the applicant does claim is that land having a greater slope than 1:2 can have a 10m height limit instead of the 8.5m generally applicable. 14 The respondent's evidence is that exceptions may be allowed, but not this design as its impacts are unacceptable. 15 The applicant had brought shadow diagrams (reduced copies from 1:250 scale) to the hearing, also clearly marked "DO NO SCALE DRAWING". They showed shadow impacts on plan and by north side elevation of No. 222. The respondent had not seen them before. Mr Wilson perused them for the first time and noted that on drawing No. 1b that purported to show shadow of a complying envelope on the subject site, the living room and kitchen windows of Rowan's were in shadow at 3pm. In other words the drawing sought to show "no change" between the proposal and a complying building In fact a correct projection of the shadow would show both north side kitchen and living room windows of Rowan's would be in sun at 3pm and in partial sun for some hours mid-winter before 3pm with a complying building. 16 The applicant said that his block of land is so narrow that a complying building at that storey level, with the envelope setback from both side boundaries, would create a room less than 2m wide and that is unreasonable given the constraints of the site and council's approvals on other narrow blocks. An exception should be allowed. 17 Mr Wilson said an exception had already been allowed by the location of the carparking structure within the front setback to the street. The other approvals nearby, if they had exceptions allowed would have been because unacceptable impacts had been reduced or eliminated. 18 Mr Wilson said, another exception on this site, which might be allowed, is to setback the proposal eastwards at the "Ground Floor Level" in Exhibit A drawing 2 (actually the 3rd level above ground on the west elevation), so that the Rowan's retained some of the view towards the creek mouth, and more northern sun with a design that retained reasonable privacy. Then an exception to the envelope control may be allowed to the room that had been setback, so the room could be the full width of the building. 19 A design of that kind would also reduce the visual bulk of the house as seen from the water and the parkland opposite over the creek. Most of the other houses had a more stepped form or a lower profile, rather than the proposal that rose 3 levels straight up from the FSBL on the southwest corner, before it stepped back to the living room. 20 The roof over the living room is combined with the roof over the garage on the next level up, by a curved form that swoops downhill. Mr Wilson said in his opinion it adds to the visual bulk of the house as it would be seen from the water and the parkland opposite. It would be better to have an open, lighter roof on the existing carspaces and a separate lower roof over the living room to further break up the bulk. This would serve the extra purpose of enabling glimpses of the National Park from the road. He said this is desirable as the entry to the park is nearby. 21 It may also mean the height limit of 8.5m could be met. Mr Wilson said the 10m extra height allowed on steep sites is conditional on the objectives of the statutes and controls being met. In his opinion the current proposal did not achieve many of the objectives as outlined in his expert report. 22 Another concern of Mr Wilson is the site coverage. He said the building has a floor space ratio of about 90% of the site and leaves very little of it for landscaping. As a result the bulk of the building cannot be screened or softened, and the north side elevation will be largely visible from the water and the parkland approximately 22m long and up to 10m high. 23 The applicant said he did not think this proposal changed the status quo to any great extent. The currently open land for vegetation between the existing dwelling and the elevated carparking structure would remain underneath the elevated living room and kitchen of the proposal that would span between the western end of the proposal and the carpark (to become garage) structure. He thought sun and light would get in underneath and enable vegetation to grow. 24 Mr Wilson added that the site is part of a wildlife corridor along the foreshore and the fencing erected on the side boundaries needed amendment to enable ground fauna to get through. Also the landscape vegetation would need to be changed from the First Stage approval to endemic species that supported the existing ecology and the fauna. If an approval is granted the vegetation under the structure would need to be of species that would survive under the building and without rain. Such vegetation is unlikely to do anything to soften or screen the building. 25 The respondent also noted that the plans showed no internal stairs from the existing dwelling up into the proposal. The proposal therefore creates de facto a dual occupancy that is prohibited in the zone. Conclusions 26 Although the lack of scale on the subject plans restricted the assessment of the proposal, I have reached the opinion that there is sufficient information, combined with the height frame erected on the existing building to determine the appeal. 27 The proposal is on a small narrow and steep allotment that has more constraints than a flat block of land having an average area for a detached house zone. Such sites are more difficult to build on than an average lot, especially if one is trying to build a house and garage at the upper limits of the capacity of the site to accommodate. 28 And, if the numeric controls appear impractical to apply, then the objectives of the statutes and controls may be used to see if exceptions to the numeric controls are reasonable. 29 I was taken across the creek to the public reserve and saw the height frame erected on the existing dwelling. From that it is possible to envisage the height and bulk of the proposal, and I agree with the respondent's evidence that it will appear as a large and unscreened mass in the line of other houses. Although several of the other houses are quite large there is still the ability to detect the landform and the continuation of vegetation amongst the buildings. The proposal would interrupt this context in ways that would be incongruent with the established context of the foreshore protection area. 30 In regard to the next-door neighbour, it seems to me that the existing 2-level dwelling on the subject site has little impact on No. 222. But the proposal, by raising the first 3 levels of building at the foreshore building line (the two existing and the new "Ground Floor") plus the solid balustrade/planter trough of the deck at the 4th level, there would be significant impacts on No. 222's privacy, amenity, view sharing of the significant water view of the creek mouth and solar access. Shade or privacy structures on the proposal would increase the impacts. 31 It is this same part of the proposal that creates the major visual impact on the foreshore protection area, along with the swooping curved roof that makes the structure one large mass continuous for about 22m of the 30m length of the allotment. 32 In this case, Mr Wilson is the only expert witness, and his evidence has persuaded me that the proposal fails to achieve reasonable compliance with the objectives of: o Landscaping, o Building envelope control, o Desired future character of the Church Point and Bayview locality o Scenic protection of the locality from the water and parkland o View sharing and the established staggered foreshore building line of the adjacent houses that if applied at the new "Ground Floor" (3rd level) of the proposal, would minimise to a reasonable level impact upon No. 222 McCarr's Creek Rd o Shadow impacts on northern living room windows of No. 222 o Solar loss on northern living room windows of No. 222 o Privacy impacts on the western living area deck and living room and kitchen of No. 222. o Character as viewed from public places viz. the water and public parkland across the creek. o The height control when the proposal exceeds even the 10m height limit for steep sites, and has unacceptable impacts. o Site coverage-Environmentally Sensitive Land when the proposal is 56% site cover and the control is 40%. This limits the ability to continue the context of vegetation around adjacent houses that have significantly lower floor space ratio than the proposal, and also creating the inability to soften and screen the bulk of the proposal. 33 Therefore the Orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned to the parties except Exhibits 2, A & B. ___________________ K G Hoffman 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.