Seneviratne H A v Clarence Valley Council [2007] NSWLEC 697

Land and Environment Court of New South Wales

CITATION : Seneviratne H A v Clarence Valley Council [2007] NSWLEC 697

APPLICANT: PARTIES : Hetti Arachchige Seneviratne RESPONDENT: Clarence Valley Council

FILE NUMBER(S) : 10545 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Dwelling house; View loss

Grafton Local Environmental Plan, (GLEP) LEGISLATION CITED: Clarence Valley Development Control Plan, (CVDCP) Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED: Tenacity v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 08 October 2007; 22 October 2007

DATE OF JUDGMENT: 24 October 2007

APPLICANT: Mr R Creighton of Australian Town Planning Consultants 2 Pty Limited SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr M D Seymour, barrister, instructed by Mr S C Priestley, solicitor SOLICITORS: Pickering Priestley

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

24 October 2007

10545 of 2007 - Hetti Arachchige Seneviratne v Clarence Valley Council

JUDGMENT

1 This involves an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Clarence Valley Council (the council) to approve a development application to erect a new dwelling house at Lot 8, DP 1045087, being No 20 Riverside Drive, South Grafton, subject to conditions. In this appeal that is de novo, meaning afresh, Condition 1 that relates to the height of the ridge of the proposal is in contention. 2 I visited the land in company with the parties on the morning of the hearing and the gradient of the ramp also became an issue. 3 I have concluded that as the new architectural plans now reflect the levels agreed during hearing, consent may be granted. The land 4 The land is situated on the southeastern side of Riverside Drive. It is vacant, rectangular in plan and has a frontage to Riverside Drive of 18.9m and a depth of 48.5m and an area of some 916.65m2. It falls around 10m from the southeastern boundary to the northwestern boundary so gravity drainage is possible towards to the street. 5 From the land, views are available to the west up the Clarence River including Susan Island. The locality is characterised by dwellings and open space. Relevant planning controls Grafton Local Environmental Plan, (GLEP) 6 Under the provisions of the GLEP the land is zoned Residential 2(a) and the proposal is permissible with consent. 7 The objectives of the 2(a) zone under the instrument are: (a) To designate areas where residential development is the primary land use and where non-residential uses are permitted only when they are compatible and subordinate to the residential character; (b) To denote housing densities and types and desired location of allowable land uses whilst maintaining the existing character of those areas by development control plans; (c) To allow non-residential uses that can be demonstrated to be compatible with the residential zoning and having regard to public opinion; and (d) To provide opportunities for the provision of secure, appropriate and affordable housing in a variety of types and tenures for all income groups within the City of Grafton. 8 The council agreed that of these, only objective that has relevance to these proceedings is (b). Clarence Valley Development Control Plan, (CVDCP) 9 The CVDCP has one relevant provision: D3 Site Assessment Requirements The site assessment should be included as part of the development application. The site assessment should consider the existing characteristics, opportunities and constraints of the site and the surrounding area, which should form the basis for site layout and building design. The site assessment of should identify: (a) topography and slope; (b) drainage pattern; (c) existing vegetation; (d) aspect and prevailing winds; (e) location of services (sewerage & stormwater); (f) views (to and from the site); (g) existing buildings (structures) on the site and adjoining land; (h) heritage and archaeological features; (i) access (pedestrian and vehicular); (j) contaminated soils; and (k) easements. An assessment of the impact of the proposed development on the surrounding area should also be made. This should address the site-specific matters and the following: (a) privacy; (b) views; (c) solar access; (d) difference in levels between the site and adjacent properties, particularly at their boundaries; (e) the built form and character of adjacent development, particularly street frontage features eg. fencing; (f) access to local shops, schools, public transport, open space, recreation and community facilities; (g) adjoining bushland or environmentally sensitive land; (h) sources of nuisance, eg. traffic noise, industries; and (i) the location and height of neighbouring buildings, including the location of facing windows and doors. Building design and siting should seek to balance the benefits of views, solar access, prevailing breezes and vegetation. The building design should also seek to minimise adverse impacts on adjoining properties and adjacent. Of particular concern is the potential impact on coastal views from buildings that are adjoining or adjacent (separated by public road) to a proposed development, though in assessing these impacts Council will always be aware that no-one can own a view across private property. Accordingly, Council has adopted the principle of view sharing in respect to coastal views. The potential impact on river views must be given consideration in assessing the impact of the proposed development and where applicable information regarding impact on river views submitted with a Development Application. The proposal and its history 10 Development application No DA2006/0465 was lodged on 6 June 2006 and was approved by the council on 21 November 2006, subject to conditions. The proposal is for a two-storey dwelling house on the land. 11 The levels of the original new proposed building were for the ground floor at 15.4m, Australian Height Datum, (AHD), with the garage at 15.1m AHD and the top floor at 18m AHD. No height was specified on the plans for the ridgeline of the proposal; however, the council officers scaled off the plans, and determined the proposed upper ridge height as being 21.3m AHD. 12 Blairlanskey Surveyors at the request of the council, erected poles or staves to indicate a ridge height of 21.3m AHD of the proposed higher northern pitched roof. The applicant sought to retain the pitched roof form however, conceded that the ridge of the northern higher roof could be lowered in an amended application to 21.3m AHD, if it were at a lower pitch. The amended lowered ridge height of the southern roof at the same pitch would be 21.0m AHD. Notification 13 The neighbours were notified of the development application on 14 June 2006 and the council received only one objection dated 19 June 2006, from Ms Leigh Jones and Mr Stephen Lamb residents of No 22 Bent Street, South Grafton. The issues they raised were: · complete loss of view; · proximity to the fence line; · the quality of the dwelling not being in keeping with the surrounding residences; and · the devaluation of their property. 14 The council identified only one objection having any significant merit, that being view sharing. The objectors indicated that they would be content if the ridge of the northern roof were no higher than 20.8m AHD and the southern roof ridge were no higher than 20.5m AHD, both are a 500mm difference in level to the ridge heights proposed by the applicant in the amended application. The council's decision 15 By notice dated 4 December 2006 the council granted development consent to the development application subject to conditions including Condition 1: 1. The maximum roof ridge height of the northern section of the dwelling shall be 20.8m AHD. The southern section of the house shall be 1000mm lower than indicated on the submitted plan (ie. 20.3m AHD). Details of how this will be achieved shall be submitted on amended plans to be approved prior to issue of the Construction Certificate. (Reason: To achieve reasonable view sharing). 16 The council believed reasonable view sharing could be achieved if the applicant were to accept three suggested design alternatives being: a. reducing the pitch of the roof to 7.5 degrees or introducing curved roof to reduce the ridge height; b. mirror reversing the dwelling so that the first floor living areas are on the north side so that the higher ridge height would block out a view of the South Grafton Services Club rather than the river; and c. moving the dwelling 1m to 2m downhill to reduce the impact on views due to the proposal's height. The hearing 17 The appeal de novo was filed on 12 June 2007, and against the imposition of Condition 1 relating to the height of the proposal. 18 At the hearing the Court heard evidence on behalf of the respondent council from: · Ms Leigh Jones and Mr Stephen Lamb, of No 22 Bent Street, South Grafton; · Mr Greg Long, town planner of Clarence Valley Council.