Land and Environment Court of New South Wales CITATION : King v Pittwater Council [2008] NSWLEC 1183 APPLICANT PR King & Associates PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 11200 of 2007 CORAM: Brown C KEY ISSUES: Appeal :- alterations and additions to an existing dwelling - amenity impacts from location of inclinator LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pittwater 21 Development Control Plan CASES CITED: Zhang v Canterbury City Council [2001] 115 LGRA 373 DATES OF HEARING: 23/04/08 DATE OF JUDGMENT: 24 April 2008 APPLICANT Mr P Rigg, solicitor SOLICITORS Deacons LEGAL REPRESENTATIVES: RESPONDENT Ms H Irish, barrister SOLICITORS Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 24 April 2008 11200 of 2007 PR King & Associates v Pittwater Council JUDGMENT 1 COMMISSIONER: This is an appeal under s 97 of the Environment Planning and Assessment Act 1979 against the decision of Pittwater Council (the council) to grant conditional development consent to Development Application No N0564/06 for alterations and additions to an existing dwelling at 135 Riverview Road, Avalon (the site). 2 The alterations and additions involve the construction of a deck and the installation of an inclinator to run from the dwelling to the shoreline of Pittwater. While it is open to the Court to consider the merits of the whole development application, the issues in the proceedings relate only to the proposed inclinator, and specifically condition B13 that states, That the inclinator rail be relocated 3.5 metres from the southern boundary. 3 The development application showed the inclinator rail located 2 m from the southern boundary, although the applicant, following a joint arborist's report in these proceedings, now proposes a setback of 1.5 m to the rail from the common boundary with 137 Riverview Road to allow the retention of a significant tree towards the Pittwater end of the site. The issue 4 The issue in the appeal centres on the potential impact of the inclinator on the adjoining property at 137 Riverview Road owned by Mr and Mrs Jones. Mr Robert Harper SC represented these owners on the site view and also provided written submissions on their behalf. Their main concerns relate to the loss of amenity, and specifically acoustic and visual privacy impacts from the movement and activities on the inclinator as it passes their newly constructed dwelling. They are currently surrounded by bushland and enjoy a quiet environment. Their concerns are based on the non-compliance with some requirements in cl C1.19 of Pittwater 21 Development Control Plan (the DCP), the fact that impacts are not "minimised" and the absence of sufficient geotechnical and construction details. 5 The issues raised by Mr Harper reflect the issues identified by the council in their Statement of Facts and Contentions. Arboricultural evidence 6 Ms Catriona McKenzie provided arboricultural evidence for the applicant and Mr Ian English for the council. They provided a joint report that addressed the question of whether the inclinator will affect a Spotted Gum (Tree 2), neighbouring Angophora and other Pittwater Spotted Gums and associated vegetation and also whether there would be a lesser impact from the location of the inclinator at the 3.5 m setback proposed by the council. Their joint report relevantly states: Both parties have considered the DCP with regard to 2 metre boundary offsets and inclinator location, but the principal concern is the preservation of trees and the conservation of the EEC (endangered ecological community) . This is because a 500 mm variation in the inclinator's location closer to either boundary, significantly reduces potential impact on trees and has the least impact on understorey vegetation. The following agreements were reached with these factors being considered. Both experts have agreed that the location for the inclinator, as currently proposed on the plans filed with the Court, and at 3.5 metres from the boundary as council has required in the issues, is not the most suitable location with regard to preservation of trees of the PSGF (Pittwater Spotted Gum Forest) understorey vegetation of the site. Both experts consider that the most suitable location for the inclinator is a 1-1.7 metres centre from the northern boundary or 1- 1.5 metres centre from the southern boundary, with regard to minimising potential impacts and reducing the threatening processes on the trees and vegetation on the site. Both experts have agreed that there is little ground to recommend the removal of any living trees on the site, given the absence of any potential targets occurring within the vicinity, and the current condition of the trees The arborists also agree that the requirement for the provision of a landscape plan is unnecessary provided a bushland management plan is supplemented and implemented. Town planning evidence 7 Town planning evidence was provided by Mr Scott Barwick for the council and Mr Harvey Sanders for the applicant. They both adopted the findings of the joint arborists' report and provided their evidence on the location of the inclinator rail at a distance of 1.5 m from the northern boundary, this being within the range of 1- 1.7 metres specified by the arborists. 8 Mr Barwick states that the inclinator that has an effective setback of 1.1 m, taking into account the inclinator carriage width of 800 mm. The rail is also up to 1.5 m above existing ground level adjoining 137 Riverview Road towards Pittwater and 1.1-1.2 m above existing ground level adjoining the Jones residence. The impact is increased when it must be assumed that the floor height of the carriage will be some 200-300 mm above the rail level. This will result in unacceptable visual privacy impacts on the occupants of 137 Riverview Road by reason of the proximity and bulk of the inclinator carriage to the property boundary and potential overlooking into the bedrooms, kitchen and bathroom. In his opinion, the inclinator location is not an acceptable response to the particular characteristics of the site. 9 Mr Sanders comes to a different conclusion. He considers that the inclinator will not have any acoustical or visual impacts on the adjoining property. Appropriate levels of privacy will be achieved through the privacy screen located on the inclinator carriage. Also, the arborists have accepted that landscaping can be provided between the property boundary and the inclinator. This will supplement the landscaping required by the approval of the new dwelling at 137 Riverview Road. Mr Sanders also notes that while there is some transitional overlooking on the adjoining property, it would be of a lesser duration than if persons were using the path that now meanders across the site from the dwelling to the foreshore. The planning framework 10 The principal controls are found in cl C1.19 of the DCP. They state: Outcomes Incline passenger lifts and stairways that cause minimal visual and acoustic disturbance to the environment and neighbours. Controls . Incline passenger lifts and stairways shall : i. be designed and located so they do not involve excessive excavation, or the removal of natural rocks or trees, and ii. be erected as near as possible to the natural ground level of the site, and shall not involve the erection of high piers or visible retaining structures, and iii. be located to minimise the effects of noise from the motor and overlooking of adjoining dwellings, and iv. be painted to blend in with surrounding vegetation and screened by landscaping and v. be set back two (2) metres from the side boundary vi. be located wholly on private land, and vii. have a privacy screen where there is a direct view within 4.5 m to a window of a habitable room of another dwelling. On steeply sloping existing sites incline passenger lifts are preferred to driveways where the required driveway grade may be difficult to achieve and will have an increased impact on the landform, appearance, vegetation and species habitat. In such cases a proposal will be subject to assessment based on merits and should be no more than one metre above existing ground level. Incline passenger lifts will not be accepted in lieu of vehicular access for new subdivisions. The noise level shall not exceed 5 dB(A) above the background noise when measured from the nearest property boundary. Where an incline passenger lift is shared between two lots, the two metre boundary setback does not apply to these lots." 11 Also, cl C1.5 provides general requirements for visual privacy and cl C1.6 provides general requirements for acoustic privacy. The assessment framework 12 The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council [2001] 115 LGRA 373. Spigelman CJ (at par) 75 raises three important propositions: first, although the Court has wide-ranging discretion, the discretion is not unfettered. Secondly, the provisions of a development control plan are to be considered as a fundamental element in or a focal point to the decision-making process, particularly if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of a development control plan directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. 13 In this case, the DCP and particularly cl C1.19 must be the fundamental element or the focal point in the decision-making process. Findings 14 With the benefit of a site view and considering the requirements of the DCP, I agree with the conclusions reached by Mr Sanders for a number of reasons. Firstly, there is a need to balance the setback requirements ( and the potential impacts on the adjoining property) and the need to retain existing vegetation and minimise excavation. Clause C1.19 provides for a setback of 2 m (Control v.) and at the same time, a requirement to avoid excessive excavation or the removal of natural rock or trees (Control i.). The clause does not suggest that any one control should be given preference over another. Even accepting that the setback may refer to the setback of the carriage and not the location of the rail, as submitted by Ms Irish, I am satisfied that the reduced setback can be justified because it will retain Tree 2 and result in no material change in the amenity of the adjoining property. 15 Secondly, the use of a screen to the carriage adequately addresses the issue of direct overlooking into the adjoining property. The impacts of direct overlooking is a situation is contemplated by Control vii. While it was suggested that overlooking could still occur past the proposed screen, I am satisfied that this will only be at an acute angle and only at a reasonable distance from the dwelling at 137 Riverview Road. I accept that the overlooking is minimised by the proposed screen. 16 Thirdly, cl C1.19 addresses the question of privacy in Control vii. This control operates independently to the set back control in that the trigger for the privacy screen is where there is "a direct view within 4.5 m to a window of an habitable room of another dwelling". The proposal satisfies this requirement by the inclusion of a screen on the carriage. 17 Fourthly, the undisputed evidence of the arborists was that screen planting could be provided between the inclinator and the common property boundary. Combined with the landscaping required for the new dwelling at 137 Riverview Road, I accept that this will supplement the screen provided on the carriage to achieve an acceptable level of privacy. 18 Fifthly, I accept that noise from the operation of the inclinator is not a matter that would warrant the refusal of the application. The applicant addressed any noise associated with the mechanical operation through an acoustical report. The council imposed a condition that was accepted by the applicant. The applicant also accepted a condition that restricted the use of the inclinator between 10pm and 7am except in emergencies. Based on the council's Statement of Facts and Contention, this satisfies the issue of acoustic privacy. 19 Mr Harper, however, raised the issue of noise generated by persons using the inclinator. While this may occur, I do not accept that it is an issue of significance considering the limited frequency of operation, the size of the carriage that will limit the number of occupants and the restricted hours of operation. Any noise generated by persons using the inclinator is likely to be no different to that expected in the residential context. 20 Sixthly, the times that the carriage will operated is limited to 20 movements per day. The time taken for the inclinator to travel the full distance is some two minutes so the potential time the carriage will be close to the adjoining dwelling is likely to be less than 60 seconds per movement. I do not accept that this is an unreasonable impact. I note that any view loss from the carriage is minimal particularly when unaffected panoramic views are still available over Pittwater from the western balconies on each level of the adjoining dwelling. 21 Seventhly, I am not satisfied that the breach of the 1 m height requirement is a matter that would warrant the refusal of the application. Mr Barwick stated that the height adjoining the Jones residence was in the order of 1.1-1.2 m. The additional height does not materially impact on the amenity of the adjoining property, taking into it account the small variation to the standard, the screening of the carriage and the frequency of its use. The 1 m height requirement also needs to be balanced against the other requirements in cl 1.19 relating to excavation and disturbance to existing topography (Control i.). 22 Ms Irish submitted that insufficient details were provided to allow a proper consideration of the application, particularly with the adoption of the 1.5 m setback to the rail by the town planning experts. The long section survey details were limited to the 2 m setback proposed with the development application (Tab 2, Exhibit 1). I note that the existing survey (Exhibit B) provides contours for the whole site so an assessment of the 1.5 m setback (as well as a long section on the 2 m setback) can be undertaken. Based on the survey plan, the difference in topography between a setback of 2 m and a setback of 1.5 m is minimal. I accept that the existing 2 m setback long section can generally be seen to represent the topography at the 1.5 m setback to the point where there can be no suggestion that the location of the rail at the 1.5 m setback and its consequences cannot be properly understood. 23 Other matters such as the location of supporting piers, the location of the motor room, the design of the carriage, including the proposed screen and finished colour, how the inclinator will relate to the new deck, and the proposed landscaping between the inclinator and the adjoining boundary are not essential matters but matters of detail. Some have been addressed without concern by the experts or others are simply matters of detail that do not affect the consideration of the impacts of the proposed application. 24 For completeness, I do however accept that further details should be provided to ensure that there is no dispute over the proposed inclinator in the future. This can be done as deferred commencement conditions that provide: o a long section at the 1.7 m setback, o the location of supporting piers, o the location of the motor room, o the design of the carriage, including the proposed screen and finished colour, o how the inclinator will relate to the new deck, and o the proposed landscaping between the inclinator and the adjoining boundary. 25 Directions were given for the filing of conditions that reflect the findings of the judgment to be filed by close of business 30 April 2008 and final orders will be made in chambers after 30 April 2008. Leave was granted to restore the matter on 24 hours' notice if there is any dispute over the conditions. The conditions were filed on 1 May 2008. Orders 26 The Orders of the Court are: 1) The appeal is upheld. 2) Development Application No N0564/06 for alterations and additions to an existing dwelling at 135 Riverview Road, Avalon is approved subject to the conditions in Annexure A. 3) The exhibits are returned. ___________________ G T Brown Commissioner of the Court 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.