Land and Environment Court of New South Wales CITATION : Michels v Sutherland Shire Council [2007] NSWLEC 391 APPLICANT Jix Anthony Michels aka John Michels PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10289 of 2007 CORAM: Tuor C KEY ISSUES: Section 96 Application :- impact of height and bulk of works consructed without consent consistency with objectives of height control and zone objectives LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula DATES OF HEARING: 22/06/2007 EX TEMPORE JUDGMENT DATE : 22 June 2007 APPLICANT Mr J Burrell, solicitor LEGAL REPRESENTATIVES: of Burrell Solicitors RESPONDENT Mr Mathieson, solicitor of Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 22 June 2007 10289 of 2007 Jix Anthony Michels aka John Michels v Sutherland Shire Council JUDGMENT 1 COMMISSIONER: This is an appeal against a refusal by Sutherland Shire Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent (00/1907) to construct a three-storey dwelling at 102 Prince Charles Parade, Kurnell (the site). 2 The works the subject of the s. 96 application have been constructed without consent. 3 The parties agreed that the appeal could be converted to a binding s. 34 Conference. 4 The site, its context, the history of the application, and the statutory controls are in the Statement of Basic Facts. The Statement of Issues contains 3 issues, the key issue being whether the proposal has an unacceptable impact on the streetscape. 5 The Court heard expert evidence from Mr. Mark Adamson, planner for the council, and Mr. John Cox, planner for the applicant. 6 Mr. Adamson stated that the proposal did not meet Objective (a) for the Residential 2(a) zone under Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula (SREP 17) as it does not maintain and enhance the existing village character of the residential areas of Kurnell. He considered the predominant character to be one to two storey cottages. In his opinion, the east-west gable increased the bulk of the building and added to its three storey appearance. It did not meet the objectives for height in cl 10.3 of Development Control Plan - Dwelling Houses in 2(e) Residential Zones and Kurnell (the DCP). Mr. Adamson considered the length of the gable should be reduced by approximately 1 metre to mitigate its impact. 7 Mr. Cox considered the bulk and height of the proposal met the relevant objectives for the zone in SREP17. He stated that the proposal complies with the wall height and overall height controls and met the objectives in cl 10.3 of the DCP. 8 The objectives in cl 10.3 in dispute are: i. That the visual impact of the dwelling is minimised; iii. That the built form is in scale and proportion to the site and adjoining development; iv. That dwellings maintain an outward appearance of being a maximum two-storey structure at any point. 9 The controls in cl 10.3 of the DCP provide: 1. A building must not exceed a height of: i. 7.2 metres to any point on the uppermost ceiling; and ii. 9 metres to the highest point on the roof. Basement carparking must not exceed 1.5metres above ground level to the top of the slab. 2. Two storey limit at any one point. Dwellings may be stepped down a steep site. 10 The parties agreed that the proposal was approved as a three storey dwelling and therefore did not comply with the two-storey control in the DCP. Findings 11 The gable will add bulk to the dwelling when compared to the dormer in the approved roof form. The question before the Court is whether the proposed bulk is unacceptable. The key issue being whether it meets the objective in cl 10.3 of the DCP and the relevant zone objectives in the SREP 17. 12 While I accept that a smaller gable, either reduced in length or in height, would reduce the overall bulk of the house, I do not consider that the height, bulk and scale is so unacceptable as to be out of character with the streetscape. The proposal meets the objectives in cl 10.3 for the following reasons: 13 Objective 1 - given the context of other dwellings in the street and the limited vantage point from which the gable will be visible, I accept that its visual impact is minimised to an acceptable level. 14 Objective 3 - the built form, although large, is in scale and proportion to the site and adjoining development, particularly recent development. In reaching this conclusion, I have not considered the adjoining property at 104 Prince Charles Parade which has unapproved works and appears as the largest building in this part of the street. 15 Objective 4 - the approved development and the proposal are three storeys and do not comply with the numerical control of two storeys in cl10.3 of the DCP. However, it meets the objectives that dwellings maintain an outward appearance of two-storeys, as the extra storey is contained within the roof form. From the street the gable will appear as a roof, the windows to the side are visible from a very limited view. 16 I therefore consider that the proposal meets the objectives of cl 10.3 in the DCP and the relevant objectives for the zone in the SREP 17. It is consistent with the character of Kurnell, particularly the character of recent development. 17 In relation to proposed Condition 5; Part 2 and 3 are to be deleted and Part 4 should be amended to require the hard paving to be reduced and provide perimeter planting. 1. The Appeal is upheld. 2. The application under s. 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (00/1907) to construct a three-storey dwelling at 102 Prince Charles Parade, Kurnell, is approved subject to the Conditions in Annexure "A". 3. The exhibits, except exhibits 1, 2, 4 and A, may be returned. ___________________ Annelise Tuor 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.