Land and Environment Court of New South Wales CITATION : Deuxberry, Scott & Anor v Pittwater Council [2008] NSWLEC 1214 APPLICANT Scott Deuxberry & Zaida Gudenus PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10086 of 2008 CORAM: Hussey C KEY ISSUES: Section 96 Modification :- setback and streetscape impact of alteration, loss of neighbours outlook LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 DATES OF HEARING: 7/04/2008, 20/05/2008 DATE OF JUDGMENT: 20 May 2008 APPLICANT Mr Scott Deuxberry, litigant in Person LEGAL REPRESENTATIVES: RESPONDENT Ms S. Puckeridge, solicitor of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 20 May 2008 10086 of 2008 Scott Deuxberry and Zaida Gudenus This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This appeal was lodged against conditions of consent imposed a development for alterations and additions to a dwelling house, including new double garage with rooftop garden at 34 Palm Terrace, North Narrabeen. 2 The appealed conditions are: o Condition B5 concerning provision of canopy trees in the front yard; o Condition C2 concerning side and front setbacks of the building and provision of landscaping. 3 The appeal was undertaken by way of a s 34 Conference and the neighbouring property owners attended and expressed their concerns about privacy and loss of outlook due to the proposed landscaping. 4 In addition to this, the issue of streetscape impacts due to the proposed setbacks was considered. The Site 5 The Site is Lot 74, DP 23742, known as 34 Palm Terrace, North Narrabeen. The site is located on the north side of Wakehurst Parkway, but is accessed by a right of carriageway from Palm Terrace. This right of carriageway is a bitumen road that is 6.095 m wide and runs through the property at the southern end from east to west. 6 The site has an area of 591 sq m and has dimensions of 39.625 m (side boundaries) by 15.24 m (front and rear boundaries). The site slopes down from rear to front (north east to south) with a fall of 7.76 m. There is an existing two storey brick and timber dwelling on site. 7 The orientation of the site is north-south with the southern boundary adjoining the right of carriageway. The Locality 8 The site is located within a residential zone and surrounded by residential development. The two neighbouring properties to the west (numbers 36 and 38 Palm Terrace) both have existing garages of a similar design to the one proposed for the site. 9 The locality has developed into a predominantly low-density residential area, with dwellings built along plateau and slopes. The locality is characterised by one and two-storey detached dwellings on 700-950 sq m allotments (some smaller allotments may exist). The residential areas are of a diverse style and architecture, a common thread being the landscaped, treed frontages and subdued external finishes. Planning controls 10 The following controls are relevant: o Pittwater Local Environmental Plan 1993, under which the land is zoned: 2(a) Residential A. o Pittwater Development Control Plan 21 ("Pittwater DCP 21") A4 Elanora Heights Locality Character as viewed from a public place Front building line Site coverage. o Pittwater Geotechnical Risk Management Policy. The evidence 11 The primary issue is that the proposed garage does not comply with the 10m front building setback to The Wakehurst Parkway. The consent conditions required the garage to be setback a further 1.3m in a northerly direction, so as to satisfy the provisions of the desired character objectives when viewed from a public place (DCP clauses 5.5 and 5.5). 12 The Council contends that the height at the front of the garage, with rooftop garden presents excessive bulk and scale to the street. 13 Following discussions between the parties, the applicant has amended the proposal to provide for a reduction in the height of the garage and to incorporate 1.0 m high 'see through wire type' balustrading, as shown on amendment plan 1 (dated 7 April 2008. Conclusions 14 Having considered the evidence and undertaken a view, I am satisfied the amended plan now demonstrates reasonable compliance with the development controls to merit consent. 15 From my observations at the view, it is apparent that the 'private access road' that the property fronts is physically separated from Wakehurst Parkway by a partial rock shelf and mature screening vegetation. Also, the 'private access road' that the property fronts is physically separated from Wakehurst Parkway by a partial rock shelf and mature screening vegetation. It is also apparent that the neighbouring properties to the west of the subject property have garages, or other structures forward of the designated setback line. 16 Accordingly, I consider the proposed setback will result in acceptable streetscape impact because of the circumstances where it is consistent with neighbouring properties fronting this screened, private driveway. Importantly, the reduction in height of the structure and incorporation of the "lighter style" of the balustrade make the amendments more acceptable, in the context of the neighbourhood. 17 The neighbours raised concerns about the loss of privacy and outlook across the rooftop garden. It seems to me that the lower level of the structure, together with modified Condition 5, which restricts any new landscaping adjacent to the common eastern boundary to local natives not exceeding 3m in height, reasonably addresses their amenity concerns. Court Orders 18 The Court orders that: 1 The appeal is upheld. 2 The s 96 modifications to conditions A1, B5 and C2 in DA 124/2007 for a double garage and rooftop terrace and stairway are granted subject to the conditions in Annexure 'A'. 3 The exhibits may be returned except for A and 1. _______________________ R. Hussey Commissioner of the Court kb/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.