Land and Environment Court of New South Wales CITATION : Santoro v Sutherland Shire Council [2007] NSWLEC 333 APPLICANT Mario Santoro PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10875 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- Alterations and additions, heritage item, overdevelopment, views, subdivision of land, floor space ratio, landscaping Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland Local Environmental Plan 2000 Sutherland Local Environmental Plan 2006 State Environmental Planning Police No. 1 CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 DATES OF HEARING: 16/04/2007 and 17/04/2007 EX TEMPORE JUDGMENT DATE : 17 April 2007 APPLICANT Mr R. Creighton, agent LEGAL REPRESENTATIVES: RESPONDENT Mr J. Cole, solicitor of Home Wilkinson Lowry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 17 April 2007 10875 of 2006 Mario Santoro v Sutherland Shire Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act against Sutherland Shire Council's refusal of a development application for the property known as 162 Kangaroo Point Road, Kangaroo Point. The subject site is on the north-eastern corner of Tara Street and Kangaroo Point Road and is some 724 square metres. The site has a frontage to Kangaroo Point Road of about 17.5 metres and a long boundary to Tara Street of some 41 metres. 2 The area is a low-density residential area with predominantly large single dwelling houses within landscaped settings. The site currently has a single-storey brick and tile dwelling house with an attached garage and vehicle access from Tara Street. The rear yard is located on the eastern side of the site and the yard is enclosed by a brick fence along this boundary. 3 The proposal is for alternations and additions to the existing dwelling that is a heritage item of local significance listed under sch 2 of the Sutherland Local Environmental Plan 2000 ("LEP"). There are some 75 dwelling houses listed within the shire. The proposal development includes the subdivision of the land to create an additional allotment with the construction of a two-storey dwelling house upon that allotment. 4 The locality, as I stated, is single dwelling houses in a low-density area near the Georges River. The subject site and the adjoining dwellings do not have direct water frontage, however, because of the topography of the land, there are water views obtained or the opportunity for water views from a number of dwellings and also from the public domain, that is within the street itself. 5 The dwelling to the east of the subject site is built relatively close to the boundary in parts. It observes a 7.5 metre or greater setback from Tara Street as do the properties generally within the area. The dual occupancy development on the south-western corner of Birdwood Street is a strata title development with two smaller dwelling houses than what generally exists in the area and the Court notes it complies with council's codes or planning regime for dual occupancy development. 6 The Court has the benefit of a site inspection, as I commenced the proceedings on site and heard from a number of resident objectors to the development. The Court also has the opportunity of observing their concerns from within or in the vicinity of their dwelling houses. On resuming in Court yesterday I noted for the Court record the objectors concerns and I will briefly state their main concerns here: o Mrs Walsh of 71 Tara Street, is concerned about the impacts of the proposed development in close proximity to her boundary. The view corridors that are achieved from within the street would be lost by the proposed development and she is also concerned that in the extension of her dwelling house she had to comply with council's controls. o Ms Zhang of 52A Tara Street, is concerned about the views, in particular from the upstairs area of their dwelling being obscured or interrupted by the proposed development. o Mrs Angela Kyriazopoulos of 54 Tara Street, is concerned about the proposed development not being in keeping with the streetscape, over-development of the area and the impact the proposal would have on the character of the area. o Mr Vincent Pisani of 56 Tara Street, is concerned about the new dwelling house on the small allotment being out of character with the area, the loss of views in particular by the new dwelling house element within the streetscape and the interruption of the generally consistent ridge lines along Tara Street. o Mrs Sicura of 260 Kangaroo Point Road, the property on the northern boundary of the subject site, is concerned about the gross loss of privacy, the impact of the two-storey structure along her southern boundary and the feeling of being hemmed in by the proposed development, in particular also the loss of privacy by the numerous windows that would overlook her property within close proximity. o Mr Folcarelli of 58 Tara Street, is concerned about loss of views and the inappropriate finishes in terms of the alterations and additions not in keeping with the streetscape and also exceeding council's controls. It would be a breach of the planning regime put in place by the council. 7 The Court also has the benefit of hearing from the Court-appointed expert, Ms Sheridan Burke, on heritage matters, and also from council's development assessment planner, Ms Deborah Pinfold. Mr John Boers gave evidence on behalf of the applicant, a town planner and heritage consultant. 8 A significant issue in the appeal identified by the council is heritage. In particular, the conservation clause, clause 15, of the council's LEP. Council contends that the proposed development does not satisfy this clause, and the heritage provisions generally of the council's controls. 9 The allotment size and dimensions are expressed as an issue in terms of council's controls, the Floor Space Ratio ("FSR"), non-compliance with the landscaped area standard and the setbacks of the proposed new dwelling. Other issues contended include: privacy; view loss; loss of water views; streetscape; the amenity of the new dwelling and over-development of the site. The issues of precedent and the public interest were also identified. 10 Clause 15 provides, notwithstanding the other provisions of the LEP, that development for heritage items can be carried out subject to meeting the requirements set out in the clause. I will first of all go to that clause and also to the concerns expressed by the Court-appointed expert on heritage. Clause 15 of the LEP states: Consent may be granted to development of a site of a heritage item which is a building...regardless of any other provision of this plan provided the consent authority is satisfied that: (a) The proposed development would not adversely affect the heritage significance of the heritage item; (b) The proposed development would have little or no adverse effect on the amenity of the area; and (c) Conservation of the item will be carried out to the consent authority's satisfaction. 11 The Court-appointed expert in the proceedings provided a statement to the Court. In Ms Burke's opinion, the proposed development is not supported on heritage grounds. In her statement she says: It is understood that there has not been a heritage significance assessment or conservation management plan prepared for the item and she had no evidence that the principles of the Burra Charter have been considered in developing the proposal. There is no indication that the significance of the heritage item has been assessed in detail as a precursor to developing a proposal for change, nor are policies to conserve its significance indicated so that it can be managed in accordance with its significance. 12 She further states that: The extensions and alterations proposed to the existing heritage item do not reflect good contextual design principles of respecting the character, scale, form, siting materials, colours and detailing of the item. The impact on the original roof form of the proposed extension is particularly adverse and dominating. Part of the original hipped and gabled roof is to be demolished and replaced by a multi-faceted roof with poorly resolved form and detailing. The siting and design of 162 Kangaroo Point Road, has been located to maximise its corner location, utilising its longer Tara Street frontage to present its major façade and roof forms. The item would be crowded by the proximity of the proposed new dwelling. The subdivision proposal significantly reduces future options for more sympathetic extension of the original house. Conservation requires the retention of an appropriate visual setting. This has not been achieved. The new dwelling will be visually prominent in the streetscape through its bulk and consequent reduction in landscaped open space. There will apparently be loss of views to the water from the public domain...the change of scale and rhythm of landscape to development along Tara Street will impact the streetscape. The proposed subdivision adversely impacts the heritage item by diminishing its garden setting and private open space. In terms of the Burra Charter, article 8, the setting, the conversation requires retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place. 13 Ms Burke advised the Court that in her opinion the setting of the heritage item would be seriously diminished by the proposed subdivision and the erection of a second dwelling on the subject site. It is noted that the heritage item with the proposal would sit on a site of some 507 square metres and the proposed new dwelling on 217 square metres lot of land. Ms Burke was of the opinion that the removal of the garden/open space area would seriously, diminish the setting and the view from the public domain would also be impacted on heritage grounds. 14 The operation of clause 15 allows for dispensation in terms of council's controls, provided that it would not adversely affect the heritage significance of the heritage item. 15 Mr Boers is of the opinion that the 1993 inventory only identifies aesthetic significance, however, it is also noted that Ms Burke indicated that the inventory was carried out some years ago and that there would be other criteria that would be included in a heritage assessment of the item today. Mr Boers considers that the proposal would not adversely affect the heritage significance. I accept Ms Burke's assessment and conclusion that the proposed development would severely adversely affect the heritage significance of the item. 16 With respect to subclause (b), the proposed development will have little or no adverse effect on the amenity of the area. It was submitted on behalf of the respondent that the wording of this clause is such that it would have little or no adverse effect on the amenity of the area. 17 In my assessment the amenity of the area includes not just the character of the streetscape in the area, but also the impact on the other properties and the amenity enjoyed by other properties within the vicinity of the subject site. The Court has the opportunity of viewing the backyard area of No. 160. Having regard to the elevations provided in the plans and having regard to the impact on privacy of No. 160, the Court is of the opinion that subclause (b) would not be satisfied by the proposed development. 18 Mr Boers is of the opinion that whilst he agrees that as the application currently as submitted would impact in terms of privacy, he considered this is merely a case of a design condition required to provide louvres or screens such that there would not be downward viewing to the rear yard/open space area of No. 160. 19 Ms Pinfold considered that the proximity of the dwelling houses, the 33 metre length of the built form at two storeys with a partial gap of approximately 1.8 between the eaves of the two dwellings mans the proposal would present as a bulky element to the adjoining property. I agree with her assessment that the proposed development would impact on the amenity of No. 160. Also the provision of louvres or screens, this would increase the bulk and I agree with her assessment in this regard. Furthermore, it should be noted that the use of louvres or screens in a low-density residential area for the entire length of facades would be inappropriate and unreasonable for the occupants. 20 Alternatively landscaping, should also not be relied upon, in particular for the number of windows that would face onto the rear yard of number 160. Clearly, louvres or landscaping may be removed and would not provide for any permanent solution or an appropriate or satisfactory solution in the long term for the northern boundary. The increased bulk, the proximity to the boundary of the number of windows and the mere and sheer bulk of the building would be overwhelming in terms of the rear yard of No. 160. 21 With respect to subclause (3), "conservation of the item would be carried out to the consent authority's satisfaction", Ms Burke was not satisfied in terms of the information submitted that this could be satisfied or would be satisfied. 22 Having failed the test of clause 15 in the LEP it is not necessary to carry out a further assessment. However I will provide comments on the State Environmental Planning Policy 1 objections. The SEPP 1 objections submitted do not address the purpose of the standard to be varied and the SEPP 1 objection in itself is not well founded. Nonetheless even with the benefit of all the evidence in the proceedings for considering the SEPP 1 objections, the application would also fail. The Court requested the planning experts to identify the objectives and to discuss the objectives of the various standards identified in the LEP. 23 Clause 35(1) of the LEP 2000 provides objectives for the floor space ratio and the objectives of the floor space ratio requirements are: (a) to provide a degree of consistency for existing residences as to the size and bulk of potential buildings in their neighbourhood; and (b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 24 The applicable floor space ratio is 0.4:1 and the proposed development would result in an exceedence. The existing dwelling with the alterations and additions would provide for a floor space ratio of 0.41:1 and the FSR the second dwelling is 0.53:1. 25 With respect to the objectives, to provide consistency and to allow buildings of sufficient scale to satisfy the needs of occupants, in this low-density residential area there are certain expectations and requirements with respect to the size of allotments of land to be of a suitable size and configuration. The objectives in my assessment are not satisfied and furthermore the proposal is inconsistent with the character of the area. 26 With respect to the landscaped area the objectives are identified as: (a) to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy; (b) to ensure that unbuilt upon areas balance the built form and (c) to contain urban runoff. 27 With respect to the opportunity for tree retention, it is noted that there are no significant trees remaining on the site today, however, the proposed landscaped area requirement to ensure opportunities for landscaping are not be satisfied by the development as shown in Exhibit A. Clearly there would be little or not space for canopy trees as such on the newly created lot of 217 square metres. 28 The SEPP 1 to vary the minimum allotment size in the LEP of 850 square metres should not be allowed in my assessment. The current appeal has the benefit of being able to be varied by SEPP 1 objection, although it is noted that the 700 square metre control in the new LEP 2006 does not allow for SEPP 1 objections or variations. 29 The objectives of the minimum allotment size are: (a) to achieve efficient use of residential land having regard to the existing allotment sizes across each zone, the expectations of the community and the environmental capacity of the various zones. 30 The site is located in the low-density zone within the local government area, and there are certain expectations in terms of the size of dwellings and the relationship of dwellings in terms of a landscaped setting and the environmental capacity of zone. The proposed subdivision would not provide for the above objective to be satisfied. An allotment of 217square metres in this low density zone of large allotments is antipathetic to the character of the area and the objective of community expectations. In my assessment the objectives of the standard are not satisfied. 31 There are also objectives for minimum dimensions. The application having failed on the other matters, I do not need to detail these standards. 32 It is noted that the 2006 LEP provides a savings provision for the assessment of development applications submitted prior to the gazettal of the 2006 LEP as in this case. The savings provision is such that the 2006 LEP needs to be considered as if it were a draft LEP. As such I must have regard also to the provisions of the 2006 LEP and I have looked at the objectives articulated in the 2006 LEP which are generally consistent with the 2000 LEP. However, if anything, they would provide greater weight to a rejection of the SEPP 1 objections. Furthermore there is no opportunity for a SEPP 1 objection with respect to the minimum allotment size, 700 square metres, and a lot of 217 square metres would not only be inconsistent with the character of the area, it is antipathetic to the area. 33 Precedent, precedent is also a relevant consideration in my assessment and was also raised as an issue. Whilst it is not determinative in this case and I do not need to rely on the issue of precedent as the application fails on other grounds. Nonetheless the proposal is an undesirable precedent to allow a subdivision of an allotment well below and out of character with the area. 34 The judgment of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 provides authority for the issue of precedent. As I said, it is not determinative in this matter because the application fails on its own merits, but it would be inappropriate to allow a subdivision of the small size for the second dwelling as it would result in a built form that would dominate the area, and in this regard I agree with Ms Pinfold's assessment. 35 The other issues raised were over-development and view loss. The proposed development in the area would represent over-development because of the length of the elevations and facades facing Tara Street. The proposal represents over-development with excessive floor space and reduced landscaped area compared to the predominant character of the area in the vicinity of the subject site. 36 View loss is also raised by the council as an issue. There are certain expectations and certainty provided by council's planning regime in terms of view sharing. The erection of two dwellings on the subject site would significantly impact the views from the public domain. And while not determinative the views from the dwellings opposite would be impacted by the proposed development. The opportunity for the view corridor where the second dwelling is proposed on the new lot would be significantly impacted. 37 View corridors are important in terms of the amenity and ambience of an area because they allow people walking to see the water through view corridors. I recognise that development of the subject site with an appropriate extension would also lead to some view loss. However, it would be unrealistic to retain all the views from the properties opposite in Tara Street. 38 In fairness to the applicant, the Court allowed a late amended plan and comments by the experts. However in Ms Pinfold's assessment, which I concur with, the further amended plans do not resolve the fundamental issues and concerns with the development. It still represents a significant over-development of the site. There is a loss of view corridors and the proposed heritage item would not present in a setting that is consistent with its heritage significance. 39 The internal amenity of the two dwellings themselves is of concern. Once again because the application fails on many other aspects, I do not need to go into great detail, but an assessment of the internal amenity of the two dwellings is such that the application would also fail. The open space provided for the heritage item is primarily a rear deck of some 12.5 metres to service an extended dwelling house of some 200 square metres. This is in close proximity to the boundary of No. 160 and this open space would not be as inadequate and would not meet expectations for a dwelling within this area. 40 The applicant's planner suggested that the front yard area to Kangaroo Point Road could be utilised for the existing dwelling, however, this does not relate well to the layout of the dwelling and its configuration and as such this would not be an appropriate alternative open space area. Also the opportunity for providing associated facilities for the dwelling on the small allotment of 217 square metres would be significantly compromised by the mere size and proximity of the open space area and the need for landscaping to maintain some privacy with No. 160. This small allotment would be inconsistent with the character of the area and it would have significant severe impacts on the adjoining property at No. 160. 41 Accordingly, on the basis of my assessment of the application, the formal orders of the Court are: 1. The appeal in respect of the property known as 162 Kangaroo Point Road, Kangaroo Point, is dismissed. 2. The development application submitted to Sutherland Shire Council and as amended and shown in Exhibit A is determined by the refusal of consent. 3. The exhibits with the exception of A, 2 and 3 are returned to the parties. ___________________ J S Murrell 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.