Land and Environment Court of New South Wales CITATION : Foster v Pittwater Council [2009] NSWLEC 1015 Applicant: Barry Foster PARTIES : Respondent: Pittwater Council FILE NUMBER(S) : 10661 of 2008 CORAM: Roseth SC KEY ISSUES: DEVELOPMENT CONSENT - DEVELOPMENT CONTROL PLAN :- DATES OF HEARING: 19 January 2009 DATE OF JUDGMENT: 23 January 2009 Applicant: LEGAL REPRESENTATIVES: Mr G Green, solicitor of Pikes Lawyers Respondent: Ms M Carpenter, barrister instructed Ms T Sheehan, solicitor of Mallesons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC 23 January 2009 10661 of 2008 Barry Foster v Pittwater Council JUDGMENT 1 Senior Commissioner: This is an appeal against the refusal by Pittwater Council (the council) of a development application to demolish the existing buildings and erect a new dwelling on lot 3 DP 29641, known as 23A Karloo Parade, Newport. The site 2 The site is a battle-axe allotment with access from Karloo Parade over a right-of-way. The total area is 920m2, of which the access handle is 220m2, leaving 700m2 for the main part of the site. On the north side the land falls about 10m, while on the south side it falls about 9m. 3 The site is in the Newport locality, which is a low-density single-dwelling area. However, as in most sought-after areas with water views, the houses in the vicinity are not small. The proposal and its history 4 The applicant proposes to demolish the existing house and erect a new house containing four bedrooms and an attached garage. 5 The applicant lodged the application in December 2007. Following notification, the council received four submissions from neighbouring properties, Nos 19, 21, 23 and 25 Karloo Parade, complaining about breaches of planning control that result in view loss and overshadowing. In April the applicant lodged amended plans that were re-notified. The council again received four submissions from the same neighbours. In June 2008 the council refused the application under delegated authority. The applicant requested a review of the decision, which led to a repeat of the notification and submissions. The council determined the review by refusal in December 2008. The applicant lodged the appeal in July 2008. Relevant planning instruments and policies 6 Pittwater Local Environmental Plan 1993 (the LEP) zones the site Residential 2(a). The LEP identifies the land as Habitat Category 3 and subject to geotechnical landslip hazard and bushfire hazard. These aspects were not raised as issues. 7 Pittwater 21 Development Control Plan (Amendment 2) (the DCP) contains detailed controls relating to, among other things, side setbacks, site coverage and building envelope. Matters in contention 8 The council filed its Statement of Contentions containing six matters. · Loss of views for 23 and 25 Karloo Parade. · Overshadowing of 21 Karloo Parade. · Overlooking of the eastern deck of 25 Karloo Parade. · The house is too big. · No stormwater management plan. · Inadequate information. 9 At the commencement of the hearing, the council's advocate, Ms M Carpenter, said that the matters in contention are the breaches of planning control and the resulting bulk and adverse impacts on the neighbours. The controls that are breached are the side setbacks, the building envelope and the site coverage. The adverse impacts are the overshadowing of No 21 and the view obstruction from Nos 23 and 25. The objectors' concerns 10 The Court heard the evidence and inspected the properties of three objectors. Mr G Kershaw, who lives at 21 Karloo Parade adjoining the subject site to the south, said that his concern is the overshadowing of his northern windows arising out of the proposal's breach of the building envelope. 11 Mr R Valla, who lives at 23 Karloo Parade adjoining the subject site to the west, said that his concern is view loss, which he sources to the proposal's breach of the building envelope. Mr Jackson, who lives at 25 Karloo Parade adjoining the subject site to the north, said that his concern is with the inadequate setbacks from the common side boundary. 12 Since that the objectors' concerns are similar to the council's, I discuss them below. Breach of building envelope 13 The proposal, as it was at the commencement of the hearing breached the building envelope control in the DCP. There was impact on the views from No 23 that could be attributed to the breach. The applicant said that it could amend the plans to comply at the top level and, following the hearing, it submitted amended plans, which comply with the building envelope control at the top level. The council's planning expert, Mr D Pearson, agrees (subject to an additional condition, B21, that is imposed) and therefore I consider this issue to be resolved. Side setbacks 14 The DCP requires setbacks of 2.5m for one side boundary and 1m for the other. The proposal complies, except for one short wall to the en-suite bathroom, which is located 2.3m from the boundary. In my opinion, the breach is so minor as to be negligible. Site coverage 15 The DCP allows maximum site coverage of 40%. In addition it allows, for single dwellings on residentially zoned land, and provided the outcomes of the site coverage control are met, up to 6% of the site to be provided as impervious landscape treatments as long as these areas are for outdoor recreational purposes only (eg roofed or unroofed pergolas, paved recreation areas, patios, pathways and covered decks no higher than 1m above natural ground level). 16 The outcomes of the control are: · Achieve the desired future character of the locality. · The bulk and scale of the built form is minimised. · A reasonable level of amenity and solar access is provided and maintained. · Vegetation is retained and enhanced to visually reduce the built form. · Conservation of natural vegetation and biodiversity. · Stormwater runoff is reduced, preventing soil erosion and siltation of natural drainage channels. · Soft surfacing is maximised. 17 The proposal's site coverage is about 44%. It therefore complies with the 40% plus 6% control, provided the above outcomes are achieved. The council's planning expert Mr D Pearson, and the applicant's, Mr R Fleming, disagree whether this is the case. I accept Mr Fleming's evidence in this regard. The proposal complies with the DCP's controls on site coverage. Overshadowing 18 The DCP requires that windows to the principal living area of adjoining dwellings receive a minimum of 3 hours of sunlight between 9am and 3pm at midwinter. According to Mr Pearson, the north-facing window to the living room of No 21 now receives 2.5 hours. Following development solar access will be reduced to 1.25 hours, so the requirement of the DCP is not achieved. 19 I note that the relevant window of No 21 is about 1m from the common boundary, which puts it into a highly vulnerable position. The proposal sets back about 6m at the relevant location. The height is below the maximum allowed. To require the applicant to do any more than this would deprive the subject site of its reasonable development potential. Overlooking 20 Mr Pearson did not think that the proposal had unreasonable impact on privacy. While Mr Jackson had concerns about being overlooked, I do not think that his concerns are valid. The proposal's windows and balconies facing north are either in obscure glass or screened. The measures to preserve the Jacksons' privacy are far in excess of what normally happens in residential areas. View obstruction 21 The amended proposal, which fits within the building envelope at the top level, does not cause view obstruction from No 23 due to a breach of planning controls. In my opinion, there is little view obstruction altogether. There is no impact on views from No 25; if anything, the views are improved. For the above reasons the appeal is upheld. Orders 1. The appeal is upheld. 2. Development application to demolish the existing buildings and erect a new dwelling on lot 3 DP 29641, known as 23A Karloo Parade, Newport is determined by the grant of approval subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits 5 and A. ____________________ Dr John Roseth Senior Commissioner 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.