Land and Environment Court New South Wales Medium Neutral Citation: Vella v Hawkesbury City Council [2011] NSWLEC 1035 Hearing dates: 11 February 2011 Decision date: 15 February 2011 Jurisdiction: Class 1 Before: Morris C Decision: In relation to appeal No 10907 of 2010 the Orders of the Court are: (1) The appeal is dismissed. (2) The Court finds that the deferred commencement condition B of Schedule 1 of Development Consent DA0060/09 has not been satisfied. (3) The exhibits are returned. In relation to appeal No 10908 of 2010 the Orders of the Court are: (1) The appeal is upheld. (2) Development consent DA0060/09 is modified by the deletion of condition 2 of Schedule 2 of that consent and its replacement with a new condition which reads as follows: (3) The balcony of the tower structure shall not be used for any purpose other than the cleaning and maintenance of that structure. (4) The exhibits are returned. Catchwords: Whether deferred commencement consent condition is satisfied; rural character; overlooking and over-viewing; amenity. Legislation Cited: Environmental Planning and Assessment Act 1979; Hawkesbury Local Environmental Plan 1989. Cases Cited: Progress and Security [1988] 66 LGRA Texts Cited: Hawkesbury Development Control Plan. Category: Principal judgment Parties: C Vella (Applicant) Hawkesbury City Council (Respondent) Representation: Storey & Gough (Applicant) Mr A Pickup Pikes Lawyers (Respondent) Mr S Griffiths File Number(s): 10907 of 2010 10908 of 2010 Judgment 1There are two matters subject to appeal. Both proceedings relate to development consent DA0060/09 (the consent) granted by Hawkesbury City Council (the council) which permitted, on a deferred commencement basis, the construction of a dam and structures considered to be ancillary to the existing dwelling on the land being the dam, a shed and landscape structure. Both appeals relate to the landscape structure. 2The applicant in these proceedings has lodged two appeals. The first is matter 10907 of 2010 and that requires me to determine whether the applicant has satisfied the requirements of the deferred commencement condition, as it relates to colours. The second matter, 10908/2010 is in relation to the refusal by the council of an application which seeks to modify the development consent by the deletion of condition 2. That condition prohibits the installation of a staircase within the proposed landscape structure and requires the installation of a ceiling to prevent access to the top of that structure. The site and its context 3The site, which is the subject of these proceedings, is Lot 10 in Deposited Plan 239937 and is known as No.163 Glenidol Road Oakville (the site). The site is on the northern side of the road, is within a rural residential area, primarily comprising 2.5ha allotments, and is an elevated property, which enjoys views to the west. 4A single storey dwelling, pool, shed, cabana and other landscaped structures are currently erected on the site. The planning controls 5The site is within the Rural Living Zone pursuant to the provisions of Hawkesbury Local Environmental Plan 1989 (the LEP). 6The relevant objectives of the Rural Living zone are: a. to provide primarily for a rural residential lifestyle f. To preserve the rural landscape character of the area by controlling the choice and colour of building materials, and the position of buildings access roads and landscaping. 7Those objectives were introduced into the LEP by way of an amendment made to the plan on 18 August 2006 (Amendment No 108). Prior to that date, the site was zoned Rural No. 1(c) and the objectives of that zone were: (a)to primarily provide for a rural residential living style; and (b)to prevent the establishment of traffic generating development along main and arterial roads. 8No objectives that were specific to building form or style were included in earlier versions of the LEP. 9Hawkesbury Development Control Plan (the DCP) also applies to the site. Part D includes a section on the erection of rural sheds. The aims and objectives of that part are * to enable the erection of sheds on rural properties within the Hawkesbury City Council area in a manner which compliments the rural character of the landscape and has minimal impact on the scenic qualities of the area. * To provide design principles for the erection of sheds, ie: siting of the building 10The section that relates to colours aims to ensure that a rural shed will blend in with rural landscape and existing buildings on a property so as to enhance the appearance of the structure as an element of the rural character of an area. Background and the proposal 11The landscape structure approved by the council comprises two separate, but attached building elements. One is described as a garden and hobby shed, and is a rectangular building with pitched roof having dimensions of 6 m by 3 m and height to its eaves of approximately 2.5m. That shed is attached by a corridor, approximately 1mx1m, to a circular tower structure. That structure has the appearance of a lighthouse. The height of the tower is 10.5 m and the diameter at the base is 2.8 m. A narrow external platform or balcony approximately 400mm wide and 8m above ground level is proposed, and a glazed element is incorporated into the peak of the tower adjacent to this platform. The plans submitted with the application include an internal spiral staircase which would provide access to the elevated balcony. The proposed landscape structure would be constructed on a concrete slab with metal clad walls and roof. 12The landscape structure would be sited approximately 20 m from the western boundary of the site, 60 m from the eastern boundary and approximately 100 m from the main driveway access to the existing residence. Due to the angled nature of the property frontage, the setback to Glenidol Road varies and at its closest point, it would be approximately 60 m from the roadway. The structure will be highly visible when approaching the site along Glenidol Road from the west and from those lower properties to the west and south of the site. 13The deferred commencement provisions required submission for approval, a landscape plan suitable for construction and the submission of a schedule of external colours. The council has advised the applicant, that one of the deferred commencement conditions has been satisfied, that being the requirement to submit a landscape plan. That landscape plan proposes the planting of conifers along both side and the rear property boundaries. The applicant says the species chosen will grow to 10-12m in height however the council consider that in this location, a lesser height is likely and that it would take many years for the trees to reach maturity. It is the council's opinion that the trees will grow to a height of 5m in 10 years. 14Condition b to Schedule 1 (the deferred commencement conditions) of the consent required that the exterior surfaces of the landscape structure and shed shall be painted an earth toned colour appropriate to the natural landscape of the locality. 15A schedule of colours has been lodged by the applicant, which proposes that the main colour of the building is of a cream colour bond, nominated on the plans submitted with the application as primrose and now renamed by the supplier as classic cream. The roof and detailed elements are proposed to be a deep red colour known as manor red . The council is not satisfied that these colours meet the requirements of condition b. The applicant considers that the colours are appropriate and that he has satisfied the deferred commencement provisions. 16The second appeal relates to the council's determination of an application lodged pursuant to the provisions of s96(1A) of the Environmental Planning and Assessment Act 1979. The matter in dispute is the refusal of the council to remove condition 2 of the consent. Condition 2 states: The development shall be modified in the following manner: * The internal staircase within the landscape structure shall be removed to prevent access to the top of the structure. * A ceiling shall be installed within the landscape structure to prevent access to the top of the structure. 17The council notified the original application and the application to modify the development consent and a number of objections were received. I heard from 4 of those objectors during the on site view. I also attended the premises of 3 of those residents and viewed the proposal from close proximity to the fourth objector's dwelling so that I could gain a better understanding of the impact of the landscape structure. The issues raised by those objectors as they relate to the applications before the Court were: * Balcony use would result in loss of privacy * Over-viewing of their property, particularly areas used for private open space and recreation. * Concern in relation to loss of property values. * The time that it will take the proposed perimeter landscaping to grow to a height sufficient to mitigate the concerns of overlooking and over-viewing. * Colour of the proposed structure does not blend into the environment. 18During the hearing, the applicant tendered four letters in support of the application however, it is noted that those letters were in response to the initial notification. The original plans proposed the landscaped structure within the front portion of the site, approximately 20m from Glenidol Road. In addition the opinion of three real estate agents was included. These letters suggest that the proposed structure would have no detrimental effect on the value of properties in the area. 19Determination of this application is limited to the matters that are the subject of the appeal and does not involve a merit-based assessment of the council's decision to grant consent. The only matters before the Court are whether the deferred commencement condition has been satisfied and whether condition 2 of the operative conditions should be deleted. 20The applicant's evidence is that the colours proposed by the applicant are appropriate in relation to the locality and particularly when consideration is given to the council's DCP controls. 21The parties agree that the tower or "light-house" element of the structure is not a rural shed for the purpose of the DCP however, Mr Pickup for the applicant argues that the DCP provides guidance as to the colours and materials considered appropriate for the structure. He says that the classic cream and manor red colours have been used in other structures on the applicant's property including the pool fence, a cabana and roof of the dwelling and therefore, the proposed tower will match those structures. Photographs of other developments within the vicinity of the site which show the use of similar colours were tendered in the proceedings and Mr Pickup argued that the further use of these colours would be consistent with the rural residential locality. 22In relation to the stairs, it is the applicant's position that there will be no adverse impact on the amenity of the adjacent properties as the council has approved the structure and the stairs, being contained wholly within the structure, will not be visible so no change will occur if they are installed. The stairs are said to provide structural integrity to the proposed structure and would provide a safe and practical means of access to the balcony to allow for maintenance and cleaning. It is the position of the applicant that the narrow width of the balcony would prevent its use for any recreational purpose. Accordingly, it is argued that there would be no actual use of the balcony and therefore no overlooking or over-viewing would occur. Further, it was put that the proposed landscaping would, over time, provide screening of the structure from adjacent properties. 23Mr Pickup puts the view that the separation of the proposed structure from the objector's properties is such that there will be no loss of amenity, particularly as the area comprises open fencing and therefore, the majority of properties can be viewed from the roadway and from adjacent premises. The evidence shows that a distance of 140m separates the nearest objector's property on the southern side of Glenidol Road. The front verandah of the next dwelling is sited in excess of 160m from the proposed structure. The private open space of the adjacent property to the east of the site is located some 100m from the structure and is separated by a number of trees, some of which are deciduous. The verandah of concern to the resident of the property to the rear of the site is located over 200m from the proposed tower. 24The council's evidence is that the LEP objectives, introduced in 2006, are specifically aiming to ensure that development within the rural residential zone is responsive to the locality and does not dominate the landscape. It is of the view that the main primrose (classic cream) colour chosen by the applicant does not satisfy the requirements of condition b of the Schedule 1 as it is not an earth toned colour appropriate to the natural landscape of the locality and also that it would not satisfy the zone objectives. Mr Griffiths for the council states that the recent amendments to the LEP must be given the opportunity to do their work and accordingly, the evidence of earlier development utilising similar colour schemes to that proposed by the applicant, does not establish a precedent for the continued use of those colours. Evidence was submitted that shows the council has considered the objectives of the LEP in the grant of consent to development in the locality and imposed conditions which control colours. This evidence indicates that the colours proposed by the applicant have not been endorsed by the council in the consents granted since 2006. 25To assist the applicant, the council has nominated four colours, which it says would meet the requirements of the condition. They are colours nominated in Exhibit 5 as Jasper, Sandbank, Paperbark and Bushland. 26In relation to the staircase, the concern of the council is that it provides access to the approved balcony section of the tower. It says that the use of the balcony would allow persons to overlook adjacent properties and this would affect the amenity of those residents. Mr Griffiths argues that this is contrary to the objective of the rural residential zone in providing for a rural residential lifestyle. He says that the ability to look into these properties from the roadway is different from being viewed from the proposed balcony, as road users are moving past the property. 27It is also a matter of concern to the council that, during the assessment of the proposal, it says there were a number of concessions made to allow approval of the structure. Those concessions were seen as a compromise to allow the applicant to build the structure and address the concerns of the residents. It is the council's position that the structure was only allowed on the basis of the colours suiting the locality and that there was no stair installed so that the concerns of the resident in relation to overlooking and over-viewing could be addressed. The suggestion of Mr Pickup that, if I were inclined to allow retention of the stairs, a condition be imposed which limits use of the balcony for cleaning and maintenance only, was not considered acceptable to Mr Griffiths due to the difficulty in enforcement. 28Mr Griffiths put the position that the applicant is now seeking to go back on the agreements reached during negotiations with the council. Mr Vella gave evidence that he did not agree at any stage to delete the staircase but did acknowledge that it had been the subject of the parties. 29I do not accept that the provisions of Progress and Security [1988] 66 LGRA apply in this case. The consent is not operative and accordingly, the applicant has not acted on it. The council has made a decision to allow the structure providing that it is satisfied the colours blend with the locality. Whether the stairs are installed or not does not affect the applicant's ability to access the approved balcony. The applicant is entitled to seek modification of a condition of consent in this case, as he has not had the benefit of the approval. I consider that this distinguishes the case. 30In relation to the deferred commencement provisions, I find that the proposed colour classic cream for the walls of the main structure does not satisfy the consent condition as it is not an earth toned colour appropriate to the natural landscape of the locality. This structure will be highly visible in the locality. 31To assist the applicant, I consider that of the colours suggested by the council, three would satisfy the condition and they are Sandbank, Jasper and Bushland. I also consider that the colour of the applicant's main shed, agreed by the parties to be Dune would also be an appropriate colour and satisfy the consent condition. I consider the colour of the roof and trim, being Manor Red is an appropriate earth tone and that this aspect of the colour schedule would satisfy the condition for these components of the structure. 32In relation to the s96 application, which seeks deletion of condition 2 of the consent, I find that it is appropriate to allow the retention of the stairs. The council has approved the lighthouse element of the structure. The balcony can be accessed by way of a ladder or a number of other means even if the stairs were not constructed. The stairs provide a safe and convenient way of accessing the upper levels of the structure for maintenance and cleaning. The distance that separates the proposed structure from the adjacent properties, being a minimum of 100m, and the limitations that the narrow width of the balcony provides to allow its use for any purpose other than cleaning and maintenance is such that I do not consider any loss on amenity will occur through the retention of the stairs. I do however consider it appropriate that the condition suggested by Mr Pickup to limit use of the balcony for maintenance and cleaning should be imposed. This will address the concerns of the objectors. Orders 33In relation to appeal No 10907 of 2010 the Orders of the Court are: (1)The appeal is dismissed. (2)The Court finds that the deferred commencement condition B of Schedule 1 of Development Consent DA0060/09 has not been satisfied. (3)The exhibits are returned. 34In relation to appeal No 10908 of 2010 the Orders of the Court are: (1)The appeal is upheld. (2)Development consent DA0060/09 is modified by the deletion of condition 2 of Schedule 2 of that consent and its replacement with a new condition which reads as follows: (3)The balcony of the tower structure shall not be used for any purpose other than the cleaning and maintenance of that structure. (4)The exhibits are returned. ********** Sue Morris 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. Decision last updated: 03 March 2011