Land and Environment Court New South Wales Medium Neutral Citation: Hitchen v Waverley Council [2011] NSWLEC 1229 Hearing dates: 21 July 2011 Decision date: 21 July 2011 Jurisdiction: Class 1 Before: Smithson AC Decision: (1)The appeal is upheld. (2)The application under s 96 of the Environmental Planning and Assessment Act is approved and the deferred commencement conditions are therefore removed from the consent. (3)The exhibits are returned to the parties with the exception of exhibits 6 and A. Catchwords: DEVELOPMENT MODIFICATION, s96 modification, deferred commencement conditions, setback and bulk, preservation of amenity, preservation of views, loss of light, neighbour's objection Legislation Cited: Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2010 Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444 (16 August 2005) Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Category: Principal judgment Parties: Ross and Yelny Hitchen (Applicants) Waverley Council (Respondent) Representation: Ms M Taylor Bartier Perry (Applicants) Ms C Morton Sparke Helmore Lawyers (Respondent) File Number(s): 10383 of 2011 EX TEMPORE Judgment 1This is an appeal against a refusal by Waverley Council (the Council) to modify development consent 250/2010 under s 96 of the Environmental Planning and Assessment Act 1979 for alterations and additions to an existing detached dwelling at 283 Military Road Dover Heights including the addition of a second storey. 2The proposal is to delete two deferred commencement conditions of the approval, which require respectively increased rear setbacks and deletion of an upper floor privacy screen to the dwelling's southern balcony. 3The grounds raised by the council are that the conditions are required as, without the increased setback to the rear eastern external walls at both levels, the rear setback would contribute unnecessary bulk and scale to an adjoining dwelling to the south and that the deletion of the privacy screen is required to preserve the amenity of that same residence. 4In terms of the site, the subject site (the site), lot 75 DP 837, is located on the eastern side of Military Road on the corner of Eastern Avenue in Dover Heights. It contains an existing single storey detached dwelling with a basement level set back 350 mm on the southern boundary and 170 mm from the northern boundary of the site. 5A 5 m wide vegetative nature strip adjoins the northern boundary and access to the site is via a driveway from the rear. The building is situated predominantly below the level of Military Road. The site is not heritage listed nor located in a conservation area or residential character study area. It is surrounded by residential development predominantly comprising dwelling houses of up to two to three storeys and some residential flat buildings. 6By way of background, in September 2010, Waverley Council granted consent to alterations and additions to the existing dwelling subject to two deferred commencement conditions which read as follows: 1.The rear setback of the alterations and additional storey contribute unnecessary bulk and scale to the detached dwelling. In this regard the rear eastern external wall at ground level and the rear external eastern wall at upper floor level shall be set back from the rear boundary, an additional 1.5 m and 1 m respectively to provide for a flush rear elevation. The upper floor eastern external wall may be extended to the northern side boundary so as to maintain a minimum setback of 170 mm from the northern side boundary and the first floor rear balcony maintaining the 1.95 setback from the southern boundary. 2.The privacy screen on the southern side elevation at the upper floor balcony is to be deleted to preserve the amenity of the adjoining premises to the south. 7A s 96 application was lodged with the council on 19 November 2010 seeking to remove these two conditions. The application was notified and one objection was received from the adjoining neighbours to the south being 281 Military Road (No. 281). 8On 11 February 2011 the application was refused on the basis that the proposed development would create excessive overshadowing of and reduced solar access to the southern adjoining property and would have negative visual bulk when viewed from this property. 9This appeal essentially revolves around the impact of the development on the adjoining dwelling house at 281 Military Road in terms of loss of views, loss of light and bulk and scale. These were expressed by the council as three issues. (1)Whether the approval without the conditions would be contrary to the aims of the LEP? (2)Whether the approval would be contrary to the provisions of Part D1 of the DCP?; and (3)Whether approval would be in the public interest, in particular having regard to the adjoining neighbours to the south? 10It is a requirement of the Court to have regard under s 79C(1)(d) and (e) of the EPA Act to the views of and submissions lodged by any neighbours; in this instance at 281 Military Road. An objection to the s 96 modification was raised by these neighbours. Issues raised in the submission related to inadequate setback from the northern boundary of No. 281, view loss, feeling 'boxed in' and loss of solar access and light. 11Their objection was supported by a report from Ingham Planning. In essence the report noted the small size of the lot at 272.34 sq m and the close proximity of the existing dwelling at No. 283 to the southern boundary, being the common boundary with the objectors and the objector's house being only 900 mm from this boundary resulting in impacts already from the current dwelling in terms of solar access. Concern was also raised at the lack of parking and that the future landscaping may impact on existing views. 12One of the main grounds of objection was the loss of ocean views from the eastern extension. The principles of Tenacity were cited: in essence that water or iconic views are the most valuable as are whole views particularly when viewed from living areas. Further, that a complying development could more reasonably impact on views than one which did not comply and whether a more skilful design could have the same development potential with less adverse view impacts. 13The affected views are from the upper level bedroom and the ground level living room, living areas and balcony of No. 281. Ingham Planning stated the development would result in the loss of more than half of the ocean view. Suggested modifications to the design were made by Ingham Planning but not taken on board or considered reasonable by the applicants. 14In terms of solar access, shadow diagrams showed some overshadowing of ground floor northern windows. It was noted however that any form of complying development would have an overshadowing impact given the small size of the lots and the existing orientation of dwellings, although relocation of the dwelling to the west would remove this. 15I will deal with these objections and concerns later in the judgment but first turn to the contentions raised by the council. 16Firstly Contention 1 is that the development is not compatible with the objectives of the LEP. 17The site is zoned Residential 2A under the Waverley LEP 1996. The council contended that the approval without the conditions would be contrary to the aims of the LEP 18The aims of LEP appear at cl 3(7) and include, in relation to housing, to ensure that new development is compatible with surrounding development and to improve the amenity of residential areas. 19Clause 10(2) of the LEP requires the council to be satisfied that development meets one or more objectives of the residential low density 2A zone. These objectives are in essence to allow only dwelling houses and boarding houses, to maintain and improve the amenity and existing characteristics of localities predominantly characterised by dwelling houses, and to allow certain compatible low intensity non-residential uses. 20The council was of the view that removal of the conditions would not satisfy the provisions of the LEP as, without the conditions, the development would be incompatible with the scale and setback of the neighbouring property, No. 281 Military Road, and would not improve the amenity of that property. Furthermore, the eastern setback of the first floor addition would not be consistent with the corresponding setback of No. 281, taking the view that the southern boundary's setbacks at both levels at only 900 mm exacerbates this incompatibility. 21The council was further concerned that the encroachment into the rear 'de facto' building line of No. 281 would present unacceptable visual bulk to No. 281 and partially block view corridors to the north and north-east from the ground and first floors of this property and light to all three levels. 22No expert was called by the council, however, the Court did hear from the neighbours, as previously advised. Their concerns have been detailed earlier and are discussed later. It is noted that no issue with any other aspects or specific development standards or requirements of the LEP were raised. 23The applicants, through their expert planner architect, Mr Nuestein, argued that the additions to the existing dwelling house, including addition of a second storey in an area comprising predominantly houses up to two or three storeys with some three storey residential flat buildings, was clearly compatible with surrounding development and would not impact on the amenity of the area. Further, that the design would complement the existing dwelling and be compatible with the streetscape. The applicants also argued that the LEP objectives do not require that the additions improve the amenity of the neighbouring dwelling but only of the area generally. 24It was not disputed that the development complied with the relevant height and floor space requirements, which are set out in the council's DCP, and was therefore essentially a complying development. 25In my view the development meets two of the three objectives of the LEP for the zone with the third objective not being relevant. It is a proposal for extensions to a dwelling house and the resultant form of development will, in my view, maintain and improve the amenity and characteristics of a locality predominantly characterised by dwelling houses. It may not improve the amenity of the neighbours but that is not the requirement of the LEP. 26Furthermore, the resulting development is compatible with the form of development envisaged and in fact arguably encouraged by the council's LEP and DCP and no issue is taken by the council with the appearance of the building in terms of its compatibility with the streetscape or area. I therefore do not accept the council's contention that the development is not compatible with the objectives of the LEP. 27The second contention of the Council was that the development is not compatible with the objectives or provisions of the Waverley Development Control Plan 2006 (the DCP). References were also made to the Waverley Development Control Plan 2010 but the relevant provisions are the same. My reference in this judgment is to the numbering of provisions in the 2006 DCP document but nothing rides on this. 28The specific relevant part of the DCP is Part D1 which contains provisions for the development of dwelling houses. At cl 1.2 of DCP 2006 the relevant aims of the DCP are to inter alia: a) Ensure the scale of dwelling houses is appropriate for the allotment size and in relation to other dwellings in the vicinity. c) That all alterations to existing dwellings do not significantly detract from the amenity, privacy and views of other dwellings and public view corridors. e) To ensure that alterations and additions to houses are sympathetic in form and character with other dwellings in their vicinity. 29The council argued that the conditions were required as otherwise the extension to the east at both levels would encroach on the de facto existing rear setback and proximity to the boundary would create an inappropriate scale of development relevant to the neighbouring No. 281. Further, that such an extension would also block northern light to the dining and living areas of the ground floor of No. 281. 30Mr Nuestein argued that the rear setback of the proposal was greater than that of the adjoining dwelling at 218 Military Road and in fact two other properties on the same side of the street and it was not reasonable to require a greater setback to protect a side view or sunlight penetration from a side window in a property that was not a corner allotment and where the property did not rely on the side window for most of its light or views. 31Ms Taylor, solicitor for the applicant, argued that the side setbacks were compatible with surrounding development and, at 900 mm, were typical for development in the area and considered by the DCP controls to provide for adequate light. Further, that the upper floor setbacks complied with the DCP requirements, that the development did not encroach into the rear elevation building line established by the first floor of No. 281 and that there were no unacceptable amenity impacts accordingly. 32Specifically in terms of setbacks, it was argued by the applicants that: a) The rear or eastern setback is greater than that that adjoining at No. 281 and has had regard to the established building line in this section of the street. b) The southern setback at the upper level complies with the DCP and where it follows the existing setback of 350 mm at the lower level has no material adverse impact on the neighbour in terms of ventilation, privacy or solar access and in any event is not part of the s 96 application. c) The northern setback aligns with the setback of the existing dwelling. d) The second storey will result in minimal loss of light to the adjoining dwelling and should be considered acceptable given the DCP compliance. 33Both Ms Taylor and Mr Nuestein argued that the scale of development was entirely consistent with the immediate locality and that deleting the two conditions would not result in a development that significantly detracted from the amenity, privacy or views of other dwellings, including the neighbours. 34Ms Morton, solicitor for the council, considered that, without the changes required by the conditions, the proposal would not only partially block view corridors from the dining and living areas of the ground floor of No. 281 to the north and to the north-east towards the ocean but also from the bedroom on the second level to the north-east. Furthermore the loss of light into the living areas from the proximity of the development to the side boundary would have a significant adverse impact on the ability of the occupants of No. 281 to enjoy their living spaces. 35Mr Nuestein argued that, in terms of No. 281, the development would not have any material impact on the ocean views enjoyed from the dining room or bedroom and that the view sharing associated with the development is both acceptable and reasonable having regard to the site's development potential. Further, that the neighbours obtain much of their view to the north-east because they overlook the subject site and because it was only single storey relative to two and three storey dwellings in the area. Essentially therefore they had no right to expect their neighbour to not develop to a similar scale as their own property and that the environmental planning instruments in fact allowed this. 36An analysis was provided by the applicants in this regard to demonstrate compliance with the view-sharing principles of Tenacity Consulting v Warringah Council [2004] NSWLEC 140. Reference by both parties was also made to a number of related judgments including Pafburn v North Sydney Council [2005] NSWLEC 444 (16 August 2005). In essence the proposal without modification was considered by the council to not be sympathetic in form with the development at No. 281 because it encroached into the established upper level building line and because of the visual bulk it would present to No. 281. The applicants argued that there was no evidence that the resultant bulk or scale resulted in any adverse impacts justifying the modifications, which would result from enforcing the deferred commencement conditions. 37It was also argued by the council that approval without the modifications proposed by the two conditions would be contrary to ss 5.2 and 5.3 of Part D1 of the DCP. Section 5.2 deals with the size and bulk of dwelling houses, s 5.3 with setbacks. The DCP states the objectives for bulk and scale are not achieved unless the following strategies are met: 5.1.3a: Building bulk should be compatible with surrounding built forms and must minimise adverse effects of bulk on adjoining properties and streetscape; and The floor space ratio of the dwelling house ... should not exceed the amount shown in the tables at Figure 65 or sliding scale in Graph 1. 38The council did not raise a concern with compliance with the floor space control but had concerns with regard to compatible building bulk. In this regard specific reference was made to s 5.3a) and e) of the DCP. In essence these require that developments provide for adequate solar access, ventilation and privacy and retention of the significant views and view corridors. The DCP provides that the council may require setbacks to be increased to retain significant views and view corridors and retain adequate solar access. 39Section 5.3 contains a control requiring the rear building line of a dwelling house to be built to the predominant rear building line of buildings within its vicinity and side setbacks of 900 mm. Ms Morton argued that the proposal did not meet the DCP objectives given its bulk, particularly to the first floor relative to the bulk and setback of No. 281, and this bulk would partially block sunlight and view corridors. 40Mr Nuestein essentially argued that the subject site is dwarfed by adjacent dwellings of up to three storeys, specifically 281 Military Road and 1 Eastern Avenue, which were of a greater bulk and scale. 41Having regard in particular to the expert evidence, including that from the council's town planners in assessing the application and referred to by Ms Taylor which concluded that the development was acceptable in terms of light and view loss, I am not persuaded that the removal of the deferred commencement conditions would result in a development which did not meet the aims or objectives of either the LEP or DCP nor that the amenity impacts argued by the council are reasonable concerns given the development is essentially in line with the LEP and DCP objectives for the area and complies with the controls in these instruments. 42It is agreed by both parties that the setbacks, height and floor space ratio for the development all comply with the DCP requirements and given these are the only numeric controls that are applicable should be considered the primary determinants of whether or not the objectives of a planning instrument are met. I am persuaded that they are and that, rather than being incompatible with the objectives and aims of the DCP and LEP, the proposed development in fact reflects them, and arguably to a greater degree than some of the other development in the vicinity. Furthermore, there will be an improvement on the quality of development on the site and therefore to the streetscape and area relative to the older, single storey dwelling which is out of character and scale with its neighbours and set predominantly below street level. 43The final council contention was that the application is not in the public interest although the council accepted that there was no concern in terms of impact on the public domain. Rather Ms Morton contended that the neighbours comprised part of the public and their concerns needed to be considered. The Court accepts that. 44Mr Nuestein argued that the neighbour's interests were of a private nature and there is no requirement in the environmental planning instruments to protect them. I share this view and do not accept the application is not in the public interest, however, the issues raised by the neighbours are valid considerations for the Court. 45Mr Nuestein believes that the concerns raised by the neighbours at No. 281 are unfounded as these neighbours will continue to enjoy the required amount of solar access, and that the impacts on views and light are not significant and should be expected from any reasonable redevelopment of the site. He also argued that changing the design of the development as suggested by the council was not reasonable when it was solely to protect a side view and light into a side window that would not generally be available had the site already been developed as permitted by the environmental planning instruments. 46Mr Nuestein also contended that views to the ocean are already blocked to a reasonable extent by other development. The views from the upper floor bedroom to the ocean directly overlook the rear yard of the subject site and he questioned whether such development would be approved under current overlooking and privacy controls. For this reason some privacy screening along the southern boundary as part of the development is proposed. 47In terms of the privacy screen, Ms Taylor contended that this was to provide mutual privacy for the occupants of both 281 and 283 Military Road and would be a standard condition most councils would consider non negotiable. I share this view and believe removing it to slightly improve a side view over the property would be outweighed by future adverse impacts on the occupants of both properties were it removed. 48In summary, in terms of the application in its entirety, I find the design and scale of the development relative to lot size is not unreasonable and concur with Mr Nuestein that it is modest relative to its neighbours. I also consider that it is not an unreasonable desire of the owners of the subject site to undertake a second storey addition in an area where such development is common and permissible, including adjacent at 281 Military Road. 49I accept that there will be some impact on the neighbours at No. 281 but in the circumstances agree with Mr Nuestein that their concerns are unfounded and unreasonable given the scale of their own development. In particular it is not reasonable that views to the side or overlooking the rear yard of the subject site should try to be retained by unreasonably compromising the development potential of the subject lot. 50In my opinion it is not reasonable to require the owners of the subject site to relocate their dwelling to undertake extensions to it, or to substantially modify the design. The size of the lot and orientation of the existing dwelling means any extension involving a second storey would have some impact on views and overshadowing. No. 281 is already two and three storeys in part and has enjoyed the outlook and amenity associated with a single storey development on the subject site but it is not reasonable that the same development rights could not be enjoyed by No. 283, albeit there will be some impacts on No. 281. 51Some attempt has been made in the design to minimise view impact within the constraints of the existing location of the dwellings at No.'s 281 and 283 Military Road by not building to the full height permitted by the DCP and by incorporation of a flat roof. This will mean that view corridors will be retained along with the majority of the view, particularly from the living room balcony of No. 281. The principles of Tenacity are met particularly in that the development is complying and designs have been applied to minimise view impacts whilst retaining development rights and view sharing. 52I am also not convinced that imposing the increased setbacks that the deferred commencement condition requires would substantially improve the views from No. 281 or would better achieve the objectives of the LEP, nor does the development give rise to any loss of views from the public domain. 53In my opinion the impacts of the development are not so severe as to require the modifications to the plans proposed by the deferred commencement conditions given the development essentially complies with the LEP and DCP objectives and controls for the zone. It also complies with the numeric controls of setbacks, floor space ratio and height. It is therefore reasonable to conclude that ventilation, privacy and solar access for No. 281 will be reasonably maintained within the constraints of the site and given the close proximity of their northern neighbour. 54The development without the two deferred commencement conditions imposed by the council will be of a similar bulk and scale to its immediate neighbours and will result in the form of development that the instruments might reasonably expect for the site and the locality. Orders 55The orders of the Court are therefore that: (1)The appeal is upheld. (2)The application under s 96 of the Environmental Planning and Assessment Act is approved and the deferred commencement conditions are therefore removed from the consent. (3)The exhibits are returned to the parties with the exception of exhibits 6 and A. J Smithson Acting 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: 08 August 2011