Nikolaidis & Anor v Pittwater Council [2010] NSWLEC 1098

Land and Environment Court of New South Wales

CITATION : Nikolaidis & Anor v Pittwater Council [2010] NSWLEC 1098

APPLICANTS Leon Nikolaidis PARTIES : Brigitte Nikolaidis

RESPONDENT Pittwater Council

FILE NUMBER(S) : 10473 of 2009

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT APPLICATION :-

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan

Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Nikolaidis v Pittwater Council [2007] NSWLEC 678 CASES CITED: Nikolaidis v Pittwater Council (2009) 171 LGERA 104 Segal v Waverley Council (2005) 64 NSWLR 177 Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 18 March 2010

DATE OF JUDGMENT: 25 May 2010

APPLICANT Mr TS Hale SC, barrister Instructed by Mr P Macarounas LEGAL REPRESENTATIVES: McLachlan Chilton RESPONDENT Mr PW Larkin, barrister Instructed by Ms T Sheahan Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

25 May 2010

10473 of 2009 Leon Nikolaidis and Brigitte Nikolaidis v Pittwater Council

JUDGMENT 1 Commissioner: This is an appeal pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Pittwater Council (the Council) of consent to a development application N0399/08 for alterations and additions to a dwelling at 4 Princes Street Newport, Lot 1 DP 1058241 (the site). 2 The site is located in a strip of houses on the western side of Princes Street and has waterfrontage to the Pittwater waterway. There is a park, Dearin Park, to the south of the strip of houses. The surrounding area is a mix of single dwelling houses and residential flat buildings. The site has a two storey dwelling house approved by Council in 2003 (the 2003 consent). 3 In 2006 the Council refused an application pursuant to s96 of the Act for modification of the 2003 consent by the inclusion of a parapet of 870mm around the top of the building, which has a flat roof. An appeal against that refusal was partially upheld, and approval was granted by Tuor C for the erection of the parapet limited to an area on the north east corner of the building to screen an air conditioning unit: Nikolaidis v Pittwater Council [2007] NSWLEC 678 (the 2007 approval). In these proceedings the applicant seeks approval for the "continuation of raised parapets to eastern elements of roof and part of northern roof". The Council refused the application on 6 November 2008 and the applicant appealed to the Court. 4 The Council sought an order that the appeal be dismissed on the ground that the appeal is an abuse of process, because the subject matter of the appeal, the continuation of the parapet, was the subject of the previous proceedings heard and determined in 2007. That application was refused by Preston CJ: Nikolaidis v Pittwater Council (2009) 171 LGERA 104. 5 The issues in these proceedings relate to the height and bulk of the building, which the Council contends is non-compliant with applicable planning controls relating to side and rear building lines and building envelope and is not consistent with the desired future character of the locality, and results in adverse amenity impacts on the neighbouring properties. The Council also contends that the dwelling as altered by the proposed development increases the potential for the roof to be used as a trafficable and entertaining area which would result in a loss of privacy to neighbouring properties. The Council contends that in the exercise of discretion approval should be refused given the basis on which the 2007 approval was determined, the development for which consent is sought is the same development that was the subject of the 2007 approval, and there has been no change in circumstances since the 2007 approval. A further issue relating to building colours and construction was accepted as being capable of resolution by the imposition of appropriate conditions of consent. 6 The Council identified in its Statement of Facts and Contentions works which it alleges have been carried out on the roof otherwise than in accordance with the previous consents. Those works include the construction of a fully formed staircase with a full height door on to the roof, instead of the stair ladder identified in the approved plans; a 2m high roofed structure over the door opening onto the roof; the forming of the lower parapet wall on the southern, western and part of the northern edge of the roof area with a centralised slit which has the potential to be used to construct a balustrade; and provision of electricity and plumbing to the rooftop. Those works are the subject of a Notice of Proposed Order given on 7 October 2009 pursuant to s121H of the Act. 7 A plan showing the extent of the approved parapet and the extent of the additional parapet proposed in this application is annexed to these reasons. Planning Controls 8 The site is zoned Residential 2(a) under the Pittwater Local Environmental Plan 1993 (the LEP) and the development is permissible with consent. The site is located in the Foreshore Scenic Protection Area. 9 The Pittwater 21 Development Control Plan (the DCP) applies to the site. Relevant provisions in the DCP are Section A4.10 – Newport Locality – Desired Character; Section D10.8 – Side and rear building line; D10.11 – Building Envelope; D10.4 – Building Colours, materials and construction; Section C1.23 – Eaves; and Section C1.5 – Visual privacy. 10 The Desired Character for the Newport Locality is described in the following terms: The Newport locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting, integrated with the landform and landscape. … Future development will maintain a height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise facade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. 11 The Visual Privacy controls in section C1.5 are as follows: Private open space, recreation areas including swimming pools and living rooms of proposed and any existing adjoining dwellings are to be protected from direct overlooking within 9m by building layout, landscaping, screening devices or greater spatial separation as shown in the diagram below (measured from a height of 1.7m above floor level). Elevated decks and pools, verandahs and balconies should incorporate privacy screens where necessary and should be located at the front or rear of the building. Direct views from an upper level dwelling shall be designed to prevent overlooking of more than 50% of the private open space of a lower level dwelling directly below. 12 Section C1.23 provides that dwellings are to incorporate eaves of a minimum of 450mm, and states the following outcomes: Outcomes Housing that reflects the coastal heritage and character of Pittwater. (S) Optimise roof forms. (S) Appropriate solar access and shading is achieved. (En)