Bokor v Pittwater Council [2010] NSWLEC 1108

Land and Environment Court of New South Wales

CITATION : Bokor v Pittwater Council [2010] NSWLEC 1108

APPLICANT Des and Sandy Bokor PARTIES : RESPONDENT Pittwater Council

FILE NUMBER(S) : 10972 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Construction of a three-storey dwelling house and demolition of existing stone dwelling and large shed.

Land and Environment Court Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan Pittwater Development Control Plan

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 24 February 2010, 1 April 2010 and 9 April 2010

EX TEMPORE JUDGMENT DATE : 9 April 2010

APPLICANT Mr G Green (solicitor) SOLICITOR Pikes Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Ms M Astridge (solicitor) SOLICITOR Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

9 April 2010

10972 of 2009 Des and Sandy Bokor v Pittwater Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 The applicant in these proceedings is seeking to erect a three-storey dwelling house on the property known as No. 37 Bynya Road, Palm Beach. The proposal involves the demolition of the existing stone dwelling on the property and large shed. 2 By way of background, this matter commenced, as a s 34 Conciliation Conference, and the Court met on site with the parties and a number of issues were resolved. However, the parties did not reach agreement and they consented to the Court adjudicating the matter under s 34(4) of the Land and Environment Court Act. The Court had the opportunity of an extensive site inspection at the time of the conciliation conference and also viewing the subject property from Whale Beach, which is one of the areas that council contends the proposed development would impact. 3 The adjoining neighbour at No. 39 gave evidence to the Court on site and an inspection of his premises was also carried out on the day of the site view. The property at No. 39 is a heritage listed dwelling under the Pittwater Local Environmental Plan. It is on a large site equivalent to approximately two sites and it has extensive gardens and landscaping and lawn areas. The property on the southern side at No. 35 is a two-storey 1960s brick dwelling. 4 The council contends that the proposed development that should not be approved because it contravenes not only the numeric standards but the objectives contained in council's planning regime. 5 The contentions as provided for in the Statement of Facts and Contentions are that the proposed development will have excessive bulk and scale: In this regard the council contends that the site coverage is excessive and the side setbacks, in particular the side setback to the north, is inadequate for the achievement of the council's objectives. The second contention is adverse environmental effects on neighbouring properties. The issue of overshadowing was resolved by an amendment to the plan. The council contends that the 'locality statement' would not be achieved in that the proposed development does not comply with the site coverage and because of the reduction in the northern setback. 6 The Court heard evidence at the s 34 Conciliation Conference and also heard evidence from the planners in Court. I will say at this point there was an amended plan following the s 34 Conciliation Conference. However, the amended plan did not resolve all of the council's contentions. 7 For the applicant, Mr Warren Long, a consultant town planner, gave evidence, and for the respondent, Ms Gina Hay, a senior planner with Pittwater Council, gave evidence to the Court. There are a number of matters that were agreed. In particular it was agreed that the height of the building and the building height plane are acceptable with only a minor breach of the height plane, with no consequence in terms of visual bulk on neighbours' amenity. It was also agreed that the figure of 53% landscaped area are for the site would be achieved. 8 The side setback to the north is non-compliant in that the area on the northern side that adjoins the heritage dwelling, for a distance of some 6 metres, that is the media room, is at 1.5 metres as opposed to the council's control of 2.5 metres. Council's Development Control Plan provides for that one side boundary be 2.5 metres and the other can be one metre. The southern boundary of the subject site, the proposed development is one metre or a little bit less in places, but it was agreed that this had no adverse impacts. The issue between the planners was whether the 1.5 reduced setback for the media room area was sufficient or adequate in terms of achieving the objectives of council's controls. 9 I note at this point that the lower bedrooms are some 2.5 metres from the northern boundary and the main bedroom is set back some 6.5 metres. 10 As an ex tempore judgment so suffice to say that I have had regard to the controls within council's bundle, exhibit 2, and the LEP of 1993. The subject site is zoned Residential A and the proposed development is permissible with consent. The other controls of the council are in the Pittwater Development Control Plan and the Geotechnical Risk Management Policy for Pittwater of 2009. 11 In terms of the LEP, the heritage dwelling at No. 39 is listed as an item. The Development Control Plan in terms of the Palm Beach locality provides a context for development and a history of the area. The desired character for Palm Beach is that: "the Palm Beach locality will remain primarily a low density residential area with dwelling houses to a maximum of two storeys… in a landscape setting integrated with the landform and landscape, and secondary dwellings can be established. Future development is to be located so as to be supported by adequate infrastructure including roads, water, et cetera. Future development will maintain a height limit below the tree canopy and minimise bulk and scale whilst ensuring future development respects the horizontal massing of the existing built form. Existing and new native vegetation including canopy trees will be integrated with the development. The design, scale and treatment of future development is to reflect the seaside village character where in commercial areas. A balance will be achieved between maintaining landforms, landscapes and other features in the natural environment and the development of land. As far as possible, the local native tree canopy and vegetation will be retained and enhanced to assist buildings blending into the natural environment, and to provide feed trees for native fauna, and to enhance wildlife corridors and heritage in conservation areas are also to be respected." 12 In terms of the natural environment, the 'Palm Beach Locality' includes areas of native vegetation, threatened species and natural environmental significance, and the area is also mapped. The locality can be described as a generally low density residential area with dwelling houses. The subject site is towards the ridge. The actual road runs along the ridge, so the dwelling houses on the eastern side of Bynya Road include the high points along the ridge. A photo montage was provided to the Court to show the before and after exercise of the dwelling house amongst the other dwelling houses on the ridge line and also to have regard to the trees within the area. 13 As I stated, amended plans were provided to the Court and there has been an amended landscape plan as a result of further concurrent evidence. 14 As I stated the Court heard from the adjoining owner, Mr Ashley Bonthorne. He gave evidence as the owner of the adjoining heritage property. The Court notes he is an architect, but his evidence to the Court is not on that basis and the Court has had regard to his concerns. He is concerned about the proximity of the proposed dwelling to his heritage item and the reduction in the side setback. He is of the opinion that there should be compliance with the side setback and it should not be varied and that it should be 2.5 metres. 15 The Court notes that the heritage retaining wall that would appear to be part of the adjoining heritage property next door, that the applicant has agreed that this remain 'in situ' despite the fact that it is in places erected on the subject site. The plans before the Court accommodate the retention of that wall. 16 Mr Bonthorne is concerned that the setback will not provide for sufficient landscaping adjoining his property and therefore he is concerned about privacy and the proximity of the dwelling house. He also expressed concern about the amount of material to be excavated. The Court had regard to the extent of excavation, and the applicant was required to provide plans to show the excavation and the proximity of the excavation. Mr Bonthorne referred to the contextual relationship or the contextual heritage of his dwelling house and in this regard he considers the proposed development is not appropriate having regard to or the juxtaposition with his dwelling house to the north. He is concerned about the bulk and scale of the development, in particular the envelope that is produced by the development including the setbacks. He also expressed concern about the depiction of the natural ground levels on the plans and in his opinion they did not reflect the accurate situation. 17 The Court notes that the subject site, as for many of the properties in this area on relatively steep terrain, have been excavated. In many respects, it is always difficult to precisely ascertain what would have been the natural ground level. The council's planner agrees with Mr Long and there is no disagreement as to the depiction of the natural ground level as shown on the architectural plans. 18 The Court also has the benefit of the survey plan, which was provided on the 1st occasion to understand the relationship of the subject development proposal with the adjoining properties in terms of relative levels and also in terms of the ground levels shown on the survey plan. 19 Mr Bonthorne was provided a marked-up exhibit of what his concerns are and what he considered to be inconsistencies in the plans. The Court then heard evidence from the architect for the proposal in addressing what Mr Bonthorne considered were a lack of indicators for the setbacks and some inconsistencies within the plans. 20 Mr Long is of the opinion that the proposal will sit comfortably within the area and is not inconsistent with the provisions of the DCP in terms of the desired future character, and that the numerical non-compliances are justified. On the other hand, Ms Hay is of the opinion that the reduced landscaping area and the reduced side setback are not satisfactory the development would be more appropriate if it complied with the DCP controls. I note that the site coverage of the proposed development is some 48% and the Development Control Plan has a provision or a guideline of 40% site coverage. 21 On behalf of the applicant it was submitted that the comparison of the existing situation and the existing excessive site coverage of the current dwelling and hard paved areas compared to the proposal should be taken into consideration. I do not accept this submission and I have assessed the development application as a new dwelling on its merits under s 79C including council's planning regime. The comparison with the existing situation in my assessment is not relevant. 22 Having said that, however, I am satisfied that the proposed development is one that will not contravene, be in conflict or antipathetic, and in fact it will be compatible with the existing desired future character as proposed in the council's planning regime. For this reason I consider that the non-compliances in the circumstances of this case are justified in terms of the final outcome or built form of the proposed development. I he concluded it is satisfactory on the basis of the concept as shown in the amended architectural drawings and the amended landscape plan, and with the benefit of materials and finishes. 23 I am satisfied that the proposed development will sit comfortably on the site and in the locality. Admittedly it is on the ridge, but in terms of its height, in my assessment it is not excessive. I say that having regard to the fact that even if the natural ground lines and the envelope as depicted on the architectural plans are not accurately shown. I am still satisfied the proposal that will not be out of character with the area and will provide for an appropriate dwelling house within a landscape setting. 24 The amended landscape plan has been changed to provide be a canopy tree, an angophora costata, Sydney Red Gum, planted within the front yard area. When I say front yard, that is the Bynya Road frontage of the subject property, and such a canopy tree will then grow up higher than the dwelling house itself. Trees on ridge-lines are preferable to seeing the built elements on ridge lines. I am satisfied the amended landscape plan it will provide for an appropriate landscape setting, a requirement of the council's guidelines and Development Control Plan. 25 With respect to the relationship with the heritage building to the north, the reduced setback of the media room area of 1.5 metres for a length of six metres along this boundary, I am satisfied with the proposed landscaping, that the development will not impact on the heritage building or impact on the significance of the heritage building in terms of the relevant provisions of council's Local Environmental Plan. The proposed dwelling has variable setbacks and this must be appreciated in terms of its relationship with the heritage item to the north. The non-compliance for one portion in my assessment, and having regard to when viewed from Whale Beach, also a concern to the council, I am satisfied that the dwelling house will sit within a landscape setting. Clearly trees are a most important and valuable amenity aspect of this locality and the landscape plan provides for the eventual replacement of canopy trees as well as providing for an appropriate landscape setting for the dwelling itself. 26 The dwelling house or built form should not necessarily have to be completely screened as such, but rather I am satisfied that the landscaping will appropriately punctuate the built form. The placement of two angophora costatas on the eastern side of the dwelling, so when viewed from Whale Beach together with the tuckeroos will provide for different levels of canopy trees, which is appropriate. It is not necessary, as I stated, to completely screen trees and clearly the longevity of trees would be significantly reduced if this was the case. Views to and from dwellings is clearly the desirable aspect of this locality and one that is emphasised through the provisions of the Development Control Plan. 27 In my assessment, under the Development Control Plan in terms of Zhang v Canterbury Council, the Court of Appeal judgment, it is clear that I must give focus and central consideration to the DCP provisions. At the same time, Zhang v Canterbury guides us in that strict adherence to the numeric provisions is not necessarily required and one must importantly have regard to the objectives that are contained within the DCP such that if a development satisfies the objectives, despite numeric non-compliance, in the circumstances of the case and on the individual merits, it may be appropriate for a variation to the DCP. Council maintains that it has consistently applied the DCP provisions and clearly, any variation to such provisions must be justified. However, in my assessment of the development application, having regard to adjoining development, having regard to views to and from the property from Whale Beach from Bynya Road itself, I am satisfied that the dwelling, whilst three-storeys on the eastern elevation, is significantly set down, and there is currently an excavated area which will be extended to provide for the media room and other facilities within the dwelling house. 28 I am satisfied that the design of the dwelling has taken into consideration amenity impacts and the adjoining properties in terms of ensuring privacy and ensuring that the amenity of those dwellings is also maintained, as well as the principles of the locality itself. In y overall assessment the proposal has merit and is worthy of approval. 29 There was one condition that required determination. That is the masonry wall which adjoins the property to the north at No. 39. At the end of the day, council's planner agreed that a 1.2 metre balustrade of masonry construction would be appropriate. In the circumstances, I also agree 1.2 metres would be appropriate and provide for the necessary separation between No. 39 and the subject property. The potential for overlooking is reduced, bearing in mind, the views are clearly to the east and I do not consider that overlooking is of such a concern to warrant a larger screen wall than that now proposed. 30 I note that in terms of the concerns of the adjoining property owner that there is a requirement for the excavation to be in accordance with the Geotechnical report. There are also conditions in terms of the risk assessment attached in the conditions and the civil engineering excavation landfill conditions also imposed at 6, and the requirement at No. 7 for a dilapidation report in relation to dwellings and associated structures on 35 and 39, and that report is to be prepared by a suitable structural engineer. The other conditions, as I stated, are as agreed to and as amended on the last occasion to reflect the current plans. 31 The Court has now received the disk of conditions so the conditions can be available with the orders when requested. A transcript of this judgment will be ordered and it will then be published. 32 Accordingly based on my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as No. 37 Bynya Road, Palm Beach, is upheld. 2. The development application submitted to Pittwater Council and as amended is approved subject to the conditions contained in Annexure 'A', 3. The exhibits may be returned to the parties with the exception of exhibits 1, 7, H, J, K, L and M.