Land and Environment Court of New South Wales CITATION : Hooshang Zibai v. Pittwater Council [1998] NSWLEC 90 APPLICANT Hooshang Zibai PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 20083 of 1998 CORAM: Sheahan J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act 1979 CASES CITED: DATES OF HEARING: 31/08/98 EX TEMPORE JUDGMENT DATE : 08/31/1998 APPLICANT Mr G Green Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr Parry Mallesons Stephen Jaques JUDGMENT: 1. In this matter Mr Zibai seeks approval to demolish an existing house and construct a new but relatively modest two storey brick dwelling within the current footprint, at 19 Kanimbla Crescent, Bilgola Plateau, high above Newport Beach, on the eastern escarpment to its north. 2. The proposed dwelling house will be within the relevant residential zone and requires a building approval from the council or the court. When it was not forthcoming from the council an appeal was commenced in class 1 of the court's jurisdiction on 4 June this year. Council subsequently refused the application under delegated authority on 16 June 1998. 3. The proposed house will be built to the west of the site to preserve the existing landscape elements, and the northern neighbours' viewline, and will occupy much less than 40 percent of the site area, indeed close to 20 percent. 4. The council's principal concerns are its height and the consequences thereof, including a cavernous undercroft area which forms part of the design and has been adopted instead of seeking approval to do some excavation on what is a steeply sloping site, so that the proposed dwelling would sit lower in the slope. 5. Mr Green says that the eaves will be between 1 and 2.3 metres above the road level and the pitched room another 2.3 metres at its highest point, making the ridge line 4 metres higher than the current flat roof. THE ISSUES 6. An amended statement of issues was filed on 7 July 1998 but some of those matters seem to have been resolved between the parties. 7. Before the court are disagreements between the parties on the following matters: Firstly, the application, to the proposal, of the eastern escarpment locality plan and building code, especially as to boundary setbacks, spatial separation for landscaping, and other purposes, and the colours of external finishes. Secondly, a range of merit issues which focus mainly on dominance and compatibility in the local landscape, including visual impact, views issues and overshadowing caused by the new built form being 4 metres higher than the old. Thirdly, 'the excessiveness' of the undercroft in that from the coastal area of Newport Beach the house would present as being of at least three storeys, but it is in fact a lesser undercroft than currently exists. 8. In opening the case counsel for the council indicated that the council would have preferred the proposed house to have been stepped down the slope of the site, to reduce its elevation above its neighbours. Council asserts that the roofline will be 4 metres above that of the nearest neighbour to the north and 7.5 metres above that to the south. It will be highest of the six or so properties in a key 100 metre stretch of this elevated roadway, which is parallel to the shore line, and council is concerned that a bad precedent will thereby be set. 9. Views from residences in the vicinity are seen to be important to the character of the area, and council wants the appearance of that area from the key urban attractions of the beach area to be dominated by vegetation and not by built forms. THE EVIDENCE 10. Four of the five near neighbours directly concerned with the proposal lodged objections, which are in exhibit P5 at pages 21 to 24, and two of them gave evidence. The court met a third on the view this morning and visited the residences of all three. 11. Council also relied on the expert evidence of relevant council officers involved in town planning and landscape architecture. 12. Council proposed a comprehensive set of 35 "without prejudice" conditions. 34 of those appear in exhibit P1, and the 35th, which is now the subject of an agreement allowing it to merge elsewhere in the conditions, as to the detail, and in the interests of certainty, appears in Exhibit P6. 13. In the end there is really only one issue between the parties on the question of conditions, agreement having been reached on all except number 17, which requires lattice screening to the undercroft, whereas the applicant thought that his proposed landscaping plantings would be more than adequate for the purpose sought to be achieved. 14. The court had the benefit of a site inspection this morning, which has been crucial to my consideration of the issues and the evidence. 15. The concerns expressed by the nearby residents are understandable in the circumstances and they are appreciated. It is also appreciated that they may not entirely be addressed by the adoption of the draft conditions. 16. Mr Bruce Kemp lives in number 18 across the road on the high side of Kanimbla Crescent. He bought his house only last November and his panoramic views to the east generally and down to Newport Beach in particular, which the court saw this morning, were a big factor in his decision. Another objector present on the view was Mr Goff of number 20, whose property will be affected similarly to Mr Kemp's. 17. Mrs Sue Coulter and her family have lived at number 21 Kanimbla Crescent for 20 years. She and her husband express an intention of staying there for another 20 years and are now renovating extensively. She is understandably apprehensive that a larger building, and especially the raising of the roof line, next door to her will eliminate much of the relatively small amount of direct sunlight that now strikes her eating and courtyard areas to the rear of the house, reducing her amenity of life and possibly adding to the danger of her entrance path. 18. She also has some privacy concerns and all her concerns are well illustrated with two montages of useful photographs in exhibit P7, and were evident during the inspection of her property this morning. THE PLANNING DOCUMENTS 19. The council's eastern escarpment locality plan dates from 1995 and has recently, apparently, been adopted as a draft development control plan, and it must be considered by the court as a circumstance of the case. 20. In section 3 of the plan it recognises that: 'Due to the topography of the area most sites can obtain spectacular views to the north, east or south.... Views are an important aspect of the character of the area and therefore building codes should ensure that views are not obstructed by adjoining developments. A two-storey height limit should be set and development on the more steeply sloping heights should step down the escarpment.' 21. The plan continues: 'The eastern escarpment is particularly visible from the beaches and from Barrenjoey Road. Therefore the retention of existing canopy trees and vegetation is particularly important. Views in the locality are generally good despite an increasing trend towards larger developments on smaller allotment sizes. The retention and enhancement of natural vegetation and minimisation of large expanses of brickwork, concrete etcetera becomes important. Further the valleys which dissect the plateau are mostly areas of reserved open space which contributes significantly to the visual amenity. It is important to minimise the impact of built development and consequently codes controlling height, colour, treatment of retaining walls and undercroft areas will maintain and enhance views both into and out of the area. No development should be permitted which would create excessive bulk or scale or a visual scar on the escarpment.' 22. The plan goes on to: * require consideration of adjoining neighbours' outlooks and views; * to prefer buildings that step down the escarpment, provide facade modulation and broken rooflines. It says: "Large interrupted wall areas or barren undercroft areas should not be permitted." 23. It goes on to: * impose the two storey height limit; * require retention and extensive planting of vegetation; * require retaining walls to be constructed of natural materials and extensively landscaped on the lower side; * require that "undercroft areas should be limited in height, and should be extensively landscaped to lessen the visual impact when viewed from below". 24. The plan goes on to deal also with heritage issues, car parking, etcetera. 25. Section 11 deals with the character of the area involved here, with emphasis on mature canopy trees and indigenous vegetation 'maintaining the nature forested character of the eastern escarpment'. 26. Section 12 of the plan deals with the building code. As pointed out by Mr Parry in submission it can be varied to meet any special circumstances provided that the aims and objectives of the code are otherwise achieved. 27. The parties seem to be agreed that the major relevant objectives of the code are the following: 3.1 to conserve and where possible enhance the desirable characteristics of the locality; 3.2 to ensure that future development within the locality has minimal effect upon the natural topography and environmental attributes of the land; 3.3 to ensure that development harmonises with the natural setting and enhances the visual amenity of the area; 3.7 to minimise the impact of development when viewed from public places; and 3.8 to ensure that development provides an equitable share of views and access to sunlight for adjoining development. 28. Section 4.1.5 of the plan requires the maintenance of a building height level below the existing tree canopy level, the screening of development from the street and the softening of views within the locality, and the maintenance of a building scale that complements the natural character of the locality. 29. The specified controls are a maximum height of building of 8.5 metres, but of 10 metres when the slopes are greater than 20 percent. The limit of new development to 2 storeys is designed to give an equitable share of views, however the section allows for three level structures which may be considered by council on merit in certain circumstances. 30. Section 4.3 at page 18 of the plan deals with the natural environment, with an emphasis on indigenous trees, shrubs and ground cover, and the council also has a landscape management policy, which I will not quote in this judgment in detail; but I have had regard to the policy objectives of section 1, "natural environment", and also those other provisions on page 2 at section 2, "the built environment", to which Mr Parry took me in opening. THE IMPACTS 31. This proposal is 2 storeys and comes within the 10 metre height limited, indeed it almost complies with the 8.5 metre limit for flatter blocks. 32. Its setbacks will generally comply, now that condition 35 has been agreed and incorporated into condition 7, but it will impact on the sunlight available to the rear living area of number 21. 33. It will cause some view loss to numbers 20 and 18 but, in aspect, it will essentially sit below the houses opposite, and in the tree lines. 34. It is submitted by the applicant that these view losses are minor, that they are within the contemplation of the standards, and that they are consistent with the relevant planning controls and vegetation guidelines. 35. The eaves will be 1.5 metres above the present house, and it has a pitched roof. More stepping would require excavation, which the applicant understood at the time that council opposed, or at least discouraged. 36. Council's development officer, Mr Keith Wright, gave written and oral evidence regarding his and the council's major concerns, namely that the proposed house would dominate the streetscape, like number 27 does, particularly when viewed from the Newport Beach area. He conceded that the excavation needed to step it down the slope would probably be acceptable to council, subject to a geotechnical clearance, but that the prospect had not been canvassed with the applicant. 37. He agreed that the evolution of the proposal from the original building application had improved it, and that the applicant had addressed many of council's original concerns. 38. The applicant's planning consultant, Mr Vincent Murphy, indicated his view that the proposal constituted a reasonable balancing of all the competing factors to comply with council's published policies for the escarpment, in which suitable vegetation must remain the dominant element. 39. He does not support the excavation or stepping down option, and says it would replicate the problem now faced by the Coulters, would require the excavation of rock, and would surround the western rooms of the lower storey with retaining walls. He thought the elevated pole approach was preferable in a case such as this where natural values are so important. He expects the Coulters' problem will be as much a result of the vegetation as the proposed building form. 40. It seems to me that the sunlight situation might in fact be better, but the intrusion on the Coulters' privacy would be far greater if the proposal were in fact stepped down into the topography. 41. On the site inspection this morning the court was able to put all the evidence regarding these issues in some perspective, hopefully a proper perspective. 42. Turning now to the landscape and vegetation issues, council's landscape architect, Mr Paul Brookbanks, gave written and oral evidence. 43. He made some criticisms of the applicant's landscape plans but basically welcomed them. He suggested some angophoras be included in the proposed plantings and he marked on the landscape plan where they should go. 44. The applicant's landscape expert, Ms Narelle Sonter, accepted that idea but would plant two or three rather than four to six. In her evidence she quite convincingly defended her plan, subject to that adjustment. Her preference was for those species endemic to the site, as her proposal was to "bulk up" the existing landscaping - in her words - bulk up and so achieve screening rather than dominating the small footprint of the proposed house. 45. I am satisfied, following today's inspection, that her plans are quite adequate for the purposes required in this case, addressing as they do all four sides of the proposed house, the verge and the neighbourhood more generally. She and Mr Brookbanks should be able to reach common ground on those matters of detail on which they currently have a mild disagreement. CONCLUSION 46. In the event, I am far from convinced that this proposal would dominate the streetscape and skyline as number 27 does. It seems to me to sit within 'the natural canopy of the hillside' as is envisaged by section 11 of the draft development control plan. 47. From the vantage points at the beach and in Porters Reserve it is obvious it will be mildly visible against a backdrop of trees. It will be far less prominent than other houses nearby and those on the headland to the south of the beach. 48. Its design seems to take best advantage of, and cause least difficulty on, a difficult site in a difficult locality. It seems to me to meet the spirit and the key terms of the locality and landscape plans which apply to it. 49. I have accordingly decided to allow the appeal and grant the approval. 50. The parties have now agreed on all the conditions except number 17, but as the Coulters will be adversely affected by this decision in other respects, I will impose condition number 17. 51. In all the circumstances I think we are achieving an equitable sharing of views and sunlight among the immediate neighbouring properties, as envisaged by the objectives of the development control plan in draft. 52. Condition 30 seems to me to be adequate in its terms, if the parties can finally agree on the details. 53. Accordingly - unless anybody wishes to say something about conditions - I uphold the appeal and I determine building application 0341 of 1998 by approval, on 34 conditions which appear at pages 9 to 12 of exhibit P1, subject to the agreed amendment to condition 7, and are now attached to this judgment as annexure "A" 54. Exhibit P1 and the plan, exhibit Z1, should remain with the court file. 55. All other exhibits may be returned. 56. There will be no order as to costs. 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