Land and Environment Court New South Wales Medium Neutral Citation: Seldon v Manly Council [2012] NSWLEC 1084 Hearing dates: 20 March 2012 Decision date: 20 March 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is upheld, in part. 2. DA 143/2011 for the construction of a dwelling house at 3 King Avenue Balgowlah is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, B and D. Catchwords: DEVELOPMENT APPLICATION; appeal against conditions of consent for construction of dwelling - appropriate setback to foreshore Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: David Seldon Pty Ltd t/a David Seldon Design (Applicant) Manly Council (Respondent) Representation: Counsel Mr B Hones, solicitor (Applicant) Mr P Vergotis, solicitor (Respondent) Solicitors Hones La Hood (Applicant) DLA Piper (Respondent) File Number(s): 11225 of 2011 Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against, initially the deemed refusal of DA 143/2011 for the construction of a dwelling house at 3 King Avenue Balgowlah, but consequently on the granting of development consent by Manly Council on 22 December 2011, a number of conditions of approval. 2The conditions in dispute relate to: * the relocation of a drainage easement from the site to an adjoining area of land, zoned Open Space, under the control of council (deferred commencement condition A1, B - 5), * the relocation of the main southern wing of the dwelling a further 3 m from the western boundary and a further 3 m from the cliff edge (deferred commencement condition A2), * the construction and commissioning of the storm water pipe and gross pollutant trap within the relocated drainage easement before demolition of the existing stormwater pipe (condition ANS05), * the use of obscured/translucent glazing in the double storey stair hall section of the dwelling and any opening windows are to be awning style to provide visual and aural privacy (condition ANS10). 3The appeal was subject to mandatory conciliation and arbitration on 20 February 2012 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2) b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii). 4Even though no agreement was reached, the council's town planner, Ms Sample and the applicant's town planner, Mr Moody further discussed the contentions and agreed on revised conditions relating to the potential overlooking to the adjoining property at 7 King Avenue (condition ANS10). There was also agreement on conditions relating to the relocation of a drainage easement and the construction and commissioning of the storm water pipe and gross pollutant trap within the relocated drainage easement. 5The remaining contention related to the appropriate setback to the foreshore. Ms Sample and Mr Moody further discussed this contention and while they ultimately disagreed on the appropriate setback, they reviewed their positions. Ms Sample accepted that a 2 m setback (as opposed to be current requirement 3 m) from the foreshore would be adequate and a further 1 m setback from the western boundary adjoining 7 King Avenue (as opposed to be current requirement 3 m) would be acceptable. Ms Sample states that increase in the setback to the foreshore is to reduce any view impacts to "minor" under the principles established in Tenacity Consulting v Warringah [2004] NSWLEC 140 and achieve closer compliance with the required setback, given the surrounding context and level of compliance to be directly adjoining properties and to reduce overshadowing of seagrass beds. 6Mr Moody, in relation to be 1 m side setback from the western boundary, does not consider any further increase to be necessary given: * the spatial separation between the proposed dwelling and the adjoining dwelling, which is in excess of the councils requirements, given the intervening drainage easement, * the existing and proposed landscaping within the side setback area, * the low profile nature of the design of the proposed two-storey dwelling, and * the absence of any unreasonable adverse view loss, overshadowing, or any other impact on adjoining properties or 7Mr Moody states, in relation to the increase setback to the foreshore, states that it is unnecessary for the following reasons: * accepting that the proposed dwelling breaches the foreshore building line, the location of the dwelling is approximately in the same location as the existing dwelling on the site, * the dwelling is a low profile, two-storey dwelling that will have reduced visual impacts on the foreshore, compared to the great majority of existing development, * the current setback provides for no unreasonable disturbance to the natural landform and existing vegetation, and * the current location will contribute to a significant increase in views of the harbour and North Head from the public domain, along King Avenue. 8In balancing the opposing arguments of Ms Sample and Mr Moody, and with the benefit of a site inspection, including an understanding of the view impacts from 7 King Avenue through the use of height poles, I prefer the conclusions of Mr Moody for a number of reasons. First, and considering the tests in Tenacity, and with the benefit of the inspection of 7 King Avenue, I am satisfied that the difference in view loss between the 2 m setback proposed by Ms Sample and be 1 m setback proposed by Mr Moody is largely inconsequential given the retention of the expansive views of Wellings Reserve and North Harbour and further towards the Heads. In my view, at its highest, the most affected view loss from 7 King Avenue could be described as "less than minor". 9Second, the foreshore building line requirements are contained within cl 3.6.9 of Manly Development Control Plan for the Residential Zone 2007 (the DCP). As I understand, the foreshore building line for the site is set at a distance of 15 m from the mean high watermark (cl 3.6.9 (a)). This line was shown on the application plans however represents a line that meanders across the site. Ms Sample and Mr Moody helpfully adopt a line (the traverse line) that averages or is a line at best fit for the mean high watermark line across the site. The clause provides the opportunity for a variation to development within the foreshore building line (cl 3.6.9 (d)) for minor development such as gazebos, pergolas and the like provided that they "are designed to complement the natural were established landscaped character of the waterfront and shall not be used for accommodation". While the proposed dwelling does not fall within the forms of development in cl 3.6.9 (d), I am satisfied that the breach of the foreshore building line can be supported in this case as the proposed development actually reduces the breach of the foreshore building line by existing dwelling. I also accept Mr Moody's evidence that the relatively low-profile design of the dwelling is a positive aspect of the proposed development when viewed from the water,. 10Third, I agree with Mr Moody that given the agreed conditions relating to the use of translucent material to avoid any direct overlooking to the dwelling at 7 King Avenue, the 8 m separation between the proposed dwelling and the adjoining building, when combined with the existing and proposed landscaping, provides a suitable response to any potential issues relating to the relationship between the existing dwelling at 7 King Ave and the proposed dwelling. I note that there was agreement between Ms Sample and Mr Moody that there are no other unreasonable amenity impacts, such as loss of privacy (following the agreement on revised conditions), noise or overshadowing relating to the adjoining property. 11While cl 3.6.10 of the DCP provides for a 6 m setback for buildings adjoining land zoned Open Space, I am satisfied that it is unreasonable and necessary to fully comply with this requirement for the proposed development as the area zoned Open Space, is for all practical purposes, a drainage easement that will contain the drainage line, that is to be relocated from within the site. 12Fourth, any concerns regarding additional overshadowing and the impact on sea grasses was not pressed by the council following additional expert evidence provided by the applicant. 13Prior to making final orders, the parties were requested to provide agreed conditions based on the findings. As part of this process, a number of conditions required further clarification. These involve: * condition A1, B1 - this condition was amended to take into account the removal of some vegetation to accommodate a gross pollutant trap, * condition A4 - this condition dealt with aboriginal relics and was deleted but included as part of condition 50 as both conditions address the same topic, * condition ANS 15 - this condition is unnecessary as compliance was not raised as a contention and condition 18 adequately deals with access and parking, * condition ANS 18 - this condition is amended to provide for the retention of tree 10 and its inclusion in the landscaping plans, * condition 26 - this condition is amended to make reference to Occupation Certificate rather than Construction Certificate, if an easement is required, * condition 36 - this condition is deleted as it is addressed by the proved landscape plan, and * condition 74 - this condition is amended to reference the approved landscape plans in relation to tree removal. * 14The orders of the Court are: 1. The appeal is upheld, in part. 2. DA 143/2011 for the construction of a dwelling house at 3 King Avenue Balgowlah is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 2, B and D. G T Brown Acting 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. Decision last updated: 04 April 2012