Land and Environment Court of New South Wales CITATION : Tragotsalos v Sutherland Shire Council [2007] NSWLEC 456 APPLICANT Jim Tragotsalos PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10145 of 2007 CORAM: Moore C KEY ISSUES: Development Application :- Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sutherland ShireLocal Environmental Plan 2000 Sutherland Shire Local Environmental Plan 2006 Swimming Pool Development Control Plan CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 DATES OF HEARING: 17 July 2007 EX TEMPORE JUDGMENT DATE : 18 July 2007 APPLICANT Mr S Kondilios, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr R O'Gorman-Hughes, barrister INSTRUCTED BY Sutherland Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 18 July 2007 07/10145 Jim Tragotsalos v Sutherland Shire Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Sutherland Shire Council (the Council) on 3 March 2006 of Development Application DA06/0013. The application is for the erection of a four level residence at 41 Craigholm Street, Sylvania (the site). 2 The site is generally rectangular in shape and is on the western side of Craigholm Street with a pleasant easterly aspect which, because of the slope of the site and the topography of the area, has extensive views to the east and north-east. 3 The site, as shown on the survey plan, slopes moderately both to the east and to the south in its western portion but has a number of significant rocky outcrops and a significant drop in its eastern third. 4 During the course of the site inspection, I had the opportunity of hearing evidence from Mr and Mrs James who are the residents immediately to the north at 39 Craigholm Street and from Mr and Mrs Graham who are the residents immediately to the south at 43 Craigholm Street. I had the opportunity of visiting both of those residences and of inspecting the site itself. 5 During the course of the inspections, it became obvious that there were a number of concerns, particularly raised by Mr and Mrs Graham about the accuracy of the plans that were then before the Court, and that this had led, over a period of time, because of past inaccuracies in the plans, to a deterioration of relations between the applicant and his neighbours. 6 I am satisfied, on the evidence given to me by the applicant's town planner, Mr Crane, and the evidence of Ms Pinfold, the Council's planner, that the plans, particularly the revised shadow diagrams in evidence, are now accurate. 7 However, it was conceded by the applicant that there had been inaccuracies in the past. I therefore find it understandable that there be a degree of concern and distrust by Mr and Mrs James and Mr and Mrs Graham as to the accuracy of those plans, particularly when at least in one aspect of a missing window, there is a still minor (although irrelevant, in the circumstances) inaccuracy in the present shadow diagrams. 8 However, through the course of the inspection it, became quite clear that, apart from matters relating to the appearance of the proposed house in the streetscape and issues relating to that pursuant to both Sutherland Shire Local Environmental Plan 2000 (the 2000 LEP) and Sutherland Shire Local Environmental Plan 2006 (the 2006 LEP), the matters of detailed objection pressed by Mr and Mrs James and Mr and Mrs Graham were potentially capable of resolution by amendment to the design. I was satisfied such amendments would not lead to a revised design so substantially different to that which was currently proposed as to require its further notification or advertisement. 9 Those matters related to the privacy impacts, both visual and aural, of the proposed lap pool to be located on the northern side of the proposed dwelling - those impacts being impacts on the bedroom windows of the James residence and on the rear private open space of the James residence. 10 With respect to Mr and Mrs Graham's residence to the south, the impacts were on the sunlight to their front veranda area. 11 There was also an area of technical non-compliance with the height control occasioned by the height of the ceiling of the en-suite bathroom to the master bedroom proposed for the upper most level of the development 12 I suggested to the parties, consistent with the approach now taken in development merit appeals [that is of considering whether the proposal, if not acceptable in its present form, was capable of being rendered acceptable by way of minor amendment] that the applicant should consider two matters. 13 The first was removal of substantial portion of the en-suite bathroom and the redesign of the walk-in wardrobe and bathroom and the area and dimensions of the deck area off that master bedroom. 14 Such amendments would have the effect of removing any technical non-compliance with the height limits contained in the 2000 LEP and of reducing the utility and size of the balcony off the master bedroom so as not to be an area capable of being used for extensive entertainment. This balcony would then be rendered one more traditionally akin to a Juliette balcony off a bedroom, particularly when coupled with the requirement for a translucent glass privacy screen at its southern end to prevent overlooking of the Graham's private open space. 15 The applicant, through his solicitor, Mr Kondilios, accepted those amendments as being appropriate. 16 The consequences of those amendments are twofold. The first is that Mr Crane and Ms Pinfold, after a further extensive joint conference, agreed that these will have resolved the issue of the otherwise adverse impact on the solar access of the front balcony of Mr and Mrs Graham's property - that being the portion of their useable space which enjoys the most substantial outlook and views to the north-east and east. 17 The second is that, when viewed from the south, walking toward the north along Craigholm Avenue, there will be an articulation of the uppermost level of the dwelling and that level, as now articulated, will be in complete compliance with height requirements of the 2000 LEP. I will return to the question of whether or not the proposal will be in compliance with the requirements of the 2006 LEP or not. 18 As to the impacts on the James property, Ms Pinfold and Mr Crane discussed, at my request, a proposal for a more extensive glass block or similar privacy screen along the northern side of the proposed lap pool. They agreed that, if such a privacy screen were erected on top of the proposed concrete upturn, then that would resolve both the visual and aural privacy impacts on the James property. 19 During the course of their joint evidence, I also suggested to them (which was agreed to by the applicant) that a shrinking of the lap pool from 13 m long to 12.5 m long (with that 500 mm shrinking being from the eastern end of the pool) would also further improve that aspect. 20 I am satisfied that, subject to matters relating to the compliance or otherwise with the Council's Swimming Pool Development Control Plan (the Swimming Pool DCP) and its desire for swimming pools in the rear yard, that that design of the swimming pool is now rendered acceptable. 21 There being, in my opinion, no impact now of an unacceptable nature on either the solar access at the front of the Graham's dwelling or aural or visual privacy impacts on the James dwelling, I need to consider two further matters. 22 The first is a matter raised by Mr and Mrs Graham about solar access to the rear yard of their property. 23 I have been provided with shadow diagrams, both in plan and in elevation, showing the impact of the proposal on the rear yard of the Graham property as at the winter solstice. 24 Ms Pinfold and Mr Crane agree that there is no unsatisfactory solar impact on that private open space. 25 Mr and Mrs Graham particularly raised the question of the impact of overshadowing on their clothesline (being a clothesline located towards the southern side of their rear yard). I am satisfied, having considered the shadow diagrams that the shadow diagram in plan shows a shadow which might touch part of the foot of the clothesline but the shadow diagram shown in elevation (agreed to by Ms Pinfold as being an accurate representation of that shadow in elevation) would mean that the shadow would be unlikely to fall (for any period of time of any significance during the relevant hours of the day) on any clothes hanging on that clothesline. 26 If I be wrong about that, Ms Pinfold conceded that any compliant second storey extension to the existing dwelling on the site would not be able to be resisted by the Council and would have the exactly the same impact on the rear yard of the Grahams as would be the position of what is proposed to be the fourth level in this proposal. 27 I note, in concluding that there is no basis for considering that the Graham's rear yard has such an affectation as to warrant refusal of or further amendment to the proposal, that the council has in its Local Environmental Plans and in its relevant development control plans, no controls, whatsoever, on the question of solar access. 28 I have considered the matter on the basis of general principles arising out of AMCORD and on that basis I am satisfied that, even if I be wrong (and Ms Pinfold also be wrong) about the accuracy of the shadow diagrams, there is no basis of impact on the solar access of the Graham's rear yard on which I could found refusal or require further modification of the application. 29 That leads to me consider the question, in the context of the 2000 LEP, of compliance with the zone objectives of the 2(a1) Residential Zone (being the zone within which the proposal is located) and, to the extent that it is relevant, the provisions of cl 34 dealing with height limits in residential zones. 30 I turn first to the provisions of cl 34. 31 The objectives of the clause dealing with height limits state that the objectives relevantly are to ensure that all buildings in the residential zone maintain a maximum two storey appearance. 32 In order to provide a control which would facilitate the obtaining of that objective, there is a height limit provided for in cl 34(2)(a)(i) and (ii) that set a limit on the height to the point on the uppermost ceiling above ground level and a height limit to the highest point of the roof. 33 Ms Pinfold accepts that as now amended those height limits are satisfied. The satisfaction of those height limits necessarily means that, for the purposes of cl 34 (1), the objective is deemed to be satisfied. 34 I then turn to the general objectives for the zone. There are two that are relevant, these are contained in objective (a) to seek that the scale, amenity and general character of the area is preserved and objective (b) to have a residential environment where the streetscape is characterised by detached one and two storey residential buildings. 35 I turn first to dealing with objective (b). "Storey" is defined in the 2000 LEP in a fashion which means, as conceded by Ms Pinfold and about which I have no evidence of any nature whatsoever to the contrary, that at no point does this dwelling exceed two storeys. Therefore, this building is a two storey residential building and is to be so regarded for the purposes of objective (b) of the zone objectives. It is therefore not possible for it to conflict with that objective. 36 With respect to the question of the scale, amenity and general character of the area, Ms Pinfold conceded, in her oral evidence in response to the further joint conference between the experts, that the area is undergoing change in the immediate visual catchment of the site. 37 It was obvious on the view that there were a number of dwellings when viewed (at least on the oblique) while walking along the street that were three storey to the street; there was at least one new dwelling just outside the immediate visual catchment that was clearly functionally likely to be three storeys to the street (that being 15 Craigholm Avenue) and one at the southern extremity of the visual catchment which was also likely to be three storeys and certainly viewed as three storeys from the street. 38 The particular area of concern which Ms Pinfold had pressed with respect to this proposal was its view from the south and southern oblique perspective as approaching from the south. 39 It is conceded by Mr Crane that, when viewed from directly opposite the site on the eastern side of Craigholm Street, four levels of the home will be visible from the street. Ms Pinfold consider this aspect acceptable. 40 Ms Pinfold indicated, in light of the changes to the south-eastern corner, that, although that was a higher perspective, it was not such a perspective as to render the application unacceptable. She accepted the proposition that the changes to the south-eastern corner of the uppermost level being recessed as a consequence of the redesign for the walk-in wardrobe and en-suite bathroom would provide a sufficient degree of articulation and difference to remove the large continuous built form at that point and that her concerns about the presentation in that direction were now removed. 41 She agreed that, in terms of objective (a) of the zone pursuant to the 2000 LEP, the proposal was now acceptable. 42 She and Mr Crane articulated the reasons by which they both reached that conclusion. Although those reasons were marginally different, I have no evidence to the contrary - indeed the evidence that they have given accords with my own impressions from the view and from the walk through of the site. 43 I therefore accept their evidence that the proposal is now acceptable when measured against objective (a) of the zone objectives under the 2000 LEP and that in all other regards it is consistent. 44 With respect to the 2006 LEP, this plan was made and came into effect after the application was made. There is, in the provision of this plan repealing the 2000 LEP, a provision in cl 7(2)(b) setting out the impact (if any) that the 2006 LEP is to have on pending applications made pursuant to the 2000 LEP. That provision reads as follows: "Any development application lodged before the commencement of this plan but not finally determined before its commencement is to be determined as if this plan had been exhibited under s 66 of the Act but had not been made". 45 There are a number of significant changes to the zoning table and to other relevant provisions of the planning scheme that applies in the transition between the 2000 and 2006 LEPs. 46 The first is in the zoning, which is now Zone 4 Local Housing under the 2006 LEP, where there is an objective to allow development that is of a scale and nature that preserves the streetscape and neighbourhood character of the zone. 47 For the reasons I have articulated based on my own observations and the evidence of Ms Pinfold and Mr Crane, just as the present proposal as amended satisfies objective (a) of the 2000 LEP's zoning table, I am satisfied, for exactly the same reasons, that the proposal satisfies objective (c) of the Local Housing zone. 48 There is, however, then an issue to be considered concerning compliance or otherwise with the provisions of cl 33 of the 2006 LEP relating to building height. 49 Clause 33 sets out the objectives of the zone - a number of which are potentially relevant in these proceedings - and then, in cl 33(4) sets out what is described as the default position of the heights of buildings generally. 50 The first is that a building must not comprise more than two storeys. It then repeats, in (b) the same ceiling and roof height limits as are contained in the 2000 LEP height limits. 51 Two matters now arise in this regard. 52 The first is that the definition of 'storey' contained in the 2006 LEP differs from the provision contained in the 2000 LEP and differs in a material respect which potentially impacts significantly on this proposal. 53 That change is that the degree of permitted construction above ground, before an element of a building is deemed to be a storey, is lowered from 1.5 m to 1 m. 54 The consequence of that is that, had the south-eastern corner remained as was originally proposed, what had been a minor exceedance of the permitted definition of a storey and therefore a breach of the two storey limit would have been significantly increased. The exceedance at that point is no longer a matter in contention, however, as a consequence of the amendments that are to be made to the plans. Ms Pinfold, in her evidence, raised no objection to the as to be amended proposal complying with the requirement in the 2006 LEP of it being a building comprising no more than two storeys in height. Mr Crane concurred in that view. 55 Mr O'Gorman-Hughes, barrister for the Council, despite that evidence, asks me to draw an inference from the survey plan that, at the point of the south-eastern corner of the to be amended uppermost level, there will be an exceedance of the two storey height limit. He asks me to draw that inference from the contours that are contained on the survey plan. 56 I have carefully considered the terms of the information that is available to me concerning the topography of the site between the 43.5 m contour line and the 43 m contour line (that being the band within which the south-eastern uppermost corner of the site will now be located). 57 I do this in the context of having ruled, during the course of the proceedings, that the section shown in the plans as section AA did not exceed two storeys as defined in the 2006 LEP - the exceedance, on my view, being, on a correct reading of the definition of storey, 900 mm or thereabouts above ground and certainly not more than 1 m, that being the relevant critical threshold. 58 However, the point at which that section is drawn is some distance to the north of the point of the south-eastern corner. 59 Mr O'Gorman-Hughes asks me to assume that there is a uniformity of slope between the 43.5 m and 43 m contours and that the necessary consequence, he asks me to conclude, of there being a uniform slope, is that, at the point of the south-eastern corner of the building, there must inevitably be a height exceedance that requires the building to be regarded as three storeys. 60 From that, he says, there is, therefore, a breach of the height limit, therefore requiring, pursuant to the 2006 LEP to which he says I should accord great weight, a requirement that the application be refused. 61 I am satisfied that there is absolutely no evidentiary foundation whatsoever capable of supporting such an inference. 62 Indeed, such spot heights as are contained on the survey plan within the band between the 43.5 m and 43 m contours expressly and explicitly lead me to a conclusion that it would be monstrously improper to draw the conclusion that there was a uniformity of eastward, south-eastward or cross slope across that portion of the site. 63 I therefore find that there is absolutely no basis in evidence before me whatsoever that I could conclude that the evidence of Ms Pinfold and Mr Crane on this point was inaccurate and/or unacceptable. 64 If I be wrong in reaching that conclusion, I return to the provisions of cl 7(2)(b) of the 2006 LEP. 65 Although this plan was in fact made and became effective from the end of November 2006, its own provisions expressly require me to treat it as if it had been exhibited pursuant to s 66 of the Act but had not been made. 66 A plan which is exhibited and has not been made, in my view, is not capable of being regarded as either imminent or certain and should therefore be given little weight in these proceedings. 67 As a consequence, if I be wrong in concluding that there is no evidentiary basis for concluding that there is a breach of the storey height requirement in the south-eastern corner of the building as set out in the 2006 LEP, I am satisfied that I should give so little weight to such a breach as to render it irrelevant in the context of these proceedings, particularly in the face of the evidence of Ms Pinfold and Mr Crane that the development is now rendered satisfactory in the context of both the 2000 and 2006 LEPs. 68 The inevitable consequence of my findings in those matters are that the orders of the Court, when revised plans are filed, will be that the appeal is upheld. There are a number of matters of detail that will be required to be attended to in the provision of revised plans and revised conditions of consent. 69 One significant revision to the conditions of consent that was agreed to by Mr Kondilios during the course of the hearing was that the area designated on the ground floor plan, being DA01E, as a plant room in the north eastern corner will be subject to a condition requiring that it be the location for the water tank, grey water recycling equipment and any pump necessary to permit the water contained in the water tank to be used for the purposes of garden irrigation or other household purposes that are permitted by law on the site. The area is designated as a plant room and the conditions should specify that that is the plant to be contained therein. 70 As to the other matters that were essentially the matters that were subject of agreement between Mr Crane and Ms Pinfold set out in Exhibit 10, there will be a need for revised plans to incorporate those together with the further shrinking, by 500 mm towards the west, of the lap pool. 71 For completeness, I finally deal with the question of compliance with the Swimming Pool DCP. 72 First, I note, consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, that I am required to use the provisions of this development control plan as the starting point or focus for my consideration but that, if, after proper and appropriate consideration of matters required by s 79C of the Act the application is otherwise acceptable, the provisions of the development control plan do not act as an insurmountable barrier to the approval of a proposal. 73 The matter that arises out of the Swimming Pool DCP is that it effectively says that it is desirable where practicable that a swimming pool be located in a rear yard. The present swimming pool is proposed to be located under an overhanging of the development and along the northern, that is the side boundary, to the James property. 74 During the course of the view of the site, as I indicated to the parties during the course of the hearing, it was obvious that the topography of the site is one of a nature typified by a significant sandstone outcrops. Indeed, there are two of them immediately visible in the front yard of the site and they are also visible in a number of the other surrounding sites. 75 This is also clear from the nature of the construction of the swimming pool on the James property to the north which includes it being, at least in its north-eastern corner, significantly above ground level. Although an in-ground concrete pool, it has been constructed partially out of the ground. 76 I am satisfied it is likely, under all the circumstances, that the construction of a swimming pool in the rear yard would be one which would require substantial excavation and, in doing so, substantial rock removal. 77 The length of the proposed swimming pool at now 12.5 m would take most of the width of the rear of the allotment. It would undoubtedly have, because of the lap pool design of the swimming pool sought by the applicant, a a significant impact on the useable area of the backyard. 78 I am satisfied under the circumstances for the reasons of what I consider to be both the likely degree of rock excavation required and impact on the utility of the rear yard of the property coupled with the measures that have now been taken to ameliorate the impact on the James property that: o First, it is not practical under the circumstances to require the applicant to construct the swimming pool in the back yard; and o Second, there is no sufficient adverse impact on the neighbours to require that impracticality to be revisited. Tim Moore 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.