Land and Environment Court of New South Wales CITATION : Archer v Lake Macquarie Council [2008] NSWLEC 1174 APPLICANT Victor Archer PARTIES : RESPONDENT Lake Macquarie Council FILE NUMBER(S) : 10196 of 2008 CORAM: Hoffman C KEY ISSUES: Development Application :- 2-Storey house, setbacks, views, flooding, privacy, solar access. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Lake Macquarie Local Environmental Plan 2004 CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 28/04/2008 EX TEMPORE JUDGMENT DATE : 28 April 2008 APPLICANT Mr G. Long, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr D. Briggs, solicitor of D G Briggs & Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 28 April 2008 10196 of 2008 Victor Archer v Lake Macquarie Council Council JUDGMENT 1 This is Class 1 Appeal No. 10196 of 2008 between Archer and the City of Lake Macquarie in regard to Development Application No. 1994/2007 for the demolition of an existing single storey weatherboard cottage and garage and the construction of a new 2-storey brick residence with single storey garage at No. 10 Paley Crescent, Belmont South. 2 The property is a small lot being 309 square metres in area and is approximately 8.5 metres wide and having a slightly splayed frontage to Ethel Street and the more heavily splayed frontage to Paley Crescent. Paley Crescent runs between a row of houses on the southern side of the street and a foreshore reserve on the northern side of the street that fronts Lake Macquarie. 3 The proposed new house has living rooms and family rooms at each of the two levels with views over the lake and northern balconies that will facilitate outside living. On the southern end of the building there is a single storey garage with driveway access to Ethel Street. 4 All new houses in this locality have to have raised floor levels due to local flooding which can occur during times of high rainfall. As a result the proposal is approximately 1 metre above ground level to the finished ground floor. 5 On the eastern side of the property the neighbour is No. 2A Ethel Street which is a duplex development. One unit fronts Ethel Street and another unit fronts Paley Crescent. The unit fronting Ethel Street is 2-storey and has its living room and kitchen and dining room at the upper level with a northern balcony which overlooks part of the front unit towards the lake and partly looks over the subject site to views of Lake Macquarie. 6 This rear unit is occupied by objectors Mr Spinks and Ms Chaponnel who are concerned about view loss, privacy and solar access. In regard to solar access the council was satisfied that the unit would still maintain more than three hours solar access mid winter. I note that the shadow diagrams in the application plans appear to project the shadows only at ground level, and therefore their elevated living room at second storey level should still retain significant daylight mid winter particularly given its almost due north orientation. 7 In regard to privacy there are two windows on the eastern side of the subject proposal at the second storey level from the living room. It's predominant windows are of course to the north overlooking the view and receiving the northern sunlight. The eastern two windows are for additional light and ventilation, however they would provide some concern to privacy of the north facing terrace at No. 2A Ethel Street. It seems to me that these two windows are purely for light and ventilation since their only view would be onto the tiled roof of No. 2A single storey section. It would be appropriate to require obscured glass windows up to 1.8 metres to retain privacy for the neighbours in that direction. 8 In regard to the view loss the major part of the view loss would be that component over the subject site. The existing view is due to the existence of a single storey cottage on the subject site at the time of construction of No. 2A. The view across the site is towards the main body of Lake Macquarie and western foreshore and any 2-storey residence on the site unless built back behind the front alignment of the other buildings on Paley Crescent would obscure that view. 9 During negotiations on the matter a council committee has visited the site and made the observation that on the Ethel Street frontage various new houses had been constructed with council consent having a variety of front setbacks to the street and the older properties had either a garage or parts of the houses actually on the street frontage. 10 The proposal has a setback in the Exhibit D plans of the original application of 5.022 metres to Ethel Street. During negotiations between the parties the applicant offered to reduce the size of the rooms at the ground and first floor level on the northern end of the building in order to increase the view from No. 2A upper deck.It would still mean that any additional view gained would be by looking across the balcony of the proposed new residence at the first floor level in order to see a greater proportion of the lake. 11 At the on-site hearing after the evidence of Mr Spinks and Ms Chaponnel I made an observation of the view loss with the advantage of height poles erected to give a clear understanding. The applicant and the respondent negotiated further and reached consent orders on an increased setback compared to amended plans in Exhibit C of this appeal which gave the Ethel Street setback of 4.023 metres measured at the southwest corner of the garage and the front setback to Paley Crescent being increased to 7.925 metres measured along the eastern boundary to the north eastern corner post of the front verandah. This would mean that compared to the original application the view line had been increased by moving the front wall of the second storey back by 1.5 metre. This gave some increased benefit to the next door neighbours. 12 I was still concerned however, that it may be possible for the occupant of the proposal to erect privacy screens, or put pot plants on the eastern side of the balcony edge which would restrict the view to the lake. It seems to me that an appropriate condition could be imposed to require that such screening be not done. The distance of separation between the terrace of No. 2A and the proposal is at least 13 metres and the accepted separation for privacy in such locations is usually 9 metres. So it seems to me that the distance of separation alone would not necessitate the need for a privacy screen. The first floor terrace of the proposal facing the lake is adjacent a single storey section of the Paley Crescent unit in No. 2A. Being elevated above the single story section the proposal has no immediate privacy concern. 13 In any case the major view would be towards the lake, and because of that most properties have mutual overlooking and are open to the street and public reserve. Reduced privacy appears accepted by houses in this location. 14 The property is located in zone 2(1) Residential Zone under the Lake Macquarie Local Environmental Plan 2004. The statutory requirements for avoiding flood issues are effectively dealt with by the plans in the application and conditions of council. In the objectives of the 2(1) zone objective (C) requires that, housing development respect the character of surrounding development and be of good quality design. 15 In looking at the adjoining and nearby residential housing, the council officers had considered the fact that the property does not comply with the envelope control in the relevant development control plan. It is the eaves on both sides of the house that infringe on this height and bulk limitation mainly because of the narrowness of the allotment. It seems that the council has approved other properties nearby with the same infringement possibly due to the narrowness of the site and that is the reason given by the experts in recommending approval of the proposal. The only other alternative would be a 2-storey where the second storey is effectively rooms in the roof. 16 In terms of the overall building height the proposal complies with the height limit in spite of the ground floor having to be elevated to avoid flood impacts. The site coverage on small lots is limited to 60% and the proposal is approximately 56% and therefore complies. 17 The other non-compliance is in regard to private outdoor space and the proposal has its principle private outdoor space as the terrace and balcony areas of the ground and first floor level and the front yard facing Paley Crescent. The minimum requirement is for 50 square metres the minimum dimensions are 5 metres by 5 metres. The Council has accepted that the ground floor terrace and the front yard of the property would satisfy this requirement and has not seen this as an obstacle to reaching consent orders. 18 In coming to a decision on the matter I note that both parties had considered the planning principle from Tenacity Consulting v Warringah [2004] NSWLEC 140 in that the existing view is across the side boundary and such views are difficult to retain especially from a rear unit such as the development at No. 2A Ethel Street. The objectors are concerned that they are losing 90% of their view. It seems to me in making an observation from their rear deck it is not 90%. Perhaps that conclusion is reached because the view lost is the broad view across to the western shore line of Lake Macquarie, and an area which apparently has considerable yachting activity to be looked at, whereas the more northerly view (which would be retained) has trees on the shoreline which filter it to a certain extent and it is across a narrower bay of the lake. 19 Whilst it is regrettable that the development takes such a proportion of the view that I would estimate to be more like 50% of the to the field of total view, this major impact could have been expected or anticipated by any 2-storey development on the site. The increase in view retention that's been obtained by negotiation between the parties is perhaps not the best outcome the objectors could have hoped for, but is it is better than the original proposal and I see no reasons sufficient to refuse the consent orders sought by the parties. The conditions submitted by the respondent have to be amended to reflect the proposal as now put forward in the amendments to the Exhibit C plans, and as I have mentioned conditions to retain privacy from the first floor deck of No. 2A and to prevent erection of things in the 1st floor balcony that would restrict the view from No. 2A. 20 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development Consent is granted to the demolition of an existing cottage and garage and the erection of a 2-storey house at No. 10 Paley Crescent, Belmont South as shown on amended plans in Exhibit C of this hearing to have a setback from Ethel Street of 4.023 metre to the Southwest corner of the garage and 7.925 metre setback to Paley Crescent measured along the east boundary, all as further amended in the conditions in Annexure A hereto. 3. The Respondent to forward conditions in electronic form to reflect this judgment within 24 hours of today. 4. The exhibits are returned except Exhibit C. ___________________ K G Hoffman 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.