Land and Environment Court New South Wales Medium Neutral Citation: Coneliano v Sutherland Shire Council [2012] NSWLEC 1221 Hearing dates: 31 May and 19 July 2012 Decision date: 20 July 2012 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is dismissed. (2)Development application (DA11-0660) for the construction of a driveway extension at 156 Fowler Road Illawong is determined by refusal. (3)The exhibits will be returned upon written publication of the judgment. Catchwords: DEVELOPMENT APPEAL - extension of an elevated concrete driveway - environmentally sensitive land - built form dominating the natural environment - amenity impacts, overlooking, privacy and visual intrusion Legislation Cited: Sutherland Shire Local Environmental Plan 2006 Category: Principal judgment Parties: Ms C Coneliano (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel Mr S Kondilios Lawyer (Applicant) Ms J Amy Lawyer (Respondent) Solicitors Maddocks Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 10178 of 2012 Ex Tempore Judgment 1This is an appeal against Sutherland Shire Council's refusal of a development application (DA11-0660) for the construction of a driveway extension at 156 Fowler Road, Illawong. 2The site is an internal allotment that fronts the Woronora River. It is classified as environmentally sensitive land under Sutherland Shire Council Local Environmental Plan 2006 (the LEP) and is within the Environmental Housing - Environmentally Sensitive Zone 1. The site sits behind two other allotments and is accessed via a right of carriageway across its southwestern boundary. There is no passing bay within the right of carriageway. 3The site contains a two-storey dwelling and a swimming pool. The current parking arrangement allows for two parking spaces within a double garage and a reversing/manoeuvring hardstand area. If a third vehicle is parked on the hardstand area then any subsequent vehicle is required to reverse the length of the right of carriage way or alternatively perform a multi point turn to exit the site in a forward direction. The applicant contends manoeuvrability onsite is unsatisfactory and an extension of the elevated driveway as proposed will overcome the problem. 4The Council has refused the application because of the unacceptable impacts on the natural environment and the amenity of the adjoining properties. Its statement of facts and contentions filed on 13 March 2012 sets out the background facts, the relevant planning controls and the contentions between the parties. The joint report (exhibit 3) prepared by the town planners, Mr Glendinning for the applicant, and, Mr Adamson for the Council summarises the expert evidence. The Applicant's Position 5The applicant's primary position is that the development is needed because the 170m long single, narrow access handle, which services two properties, has no passing bays. According to Mr Glendinning the driveway extension will improve vehicular access and manoeuvrability on the hardstand area and avoid vehicle conflict along the driveway. It will remove the need for reversing movements along the driveway, which arises because the driveway serves two properties. 6Mr Glendinning supports the proposal because it will make vehicle manoeuvrability more comfortable on this constrained site. Although he concedes the existing onsite parking is adequate and compliant with the Australian Standard he believes it needs to be improved. He does not agree with the Council's assessment that the elevated structure (after landscaping) will be more visually intrusive in the landscape. In fact, he is of the opinion that the amenity of the neighbour at 158 to 164 Fowler Road will be improved by the proposed landscaping in the undercroft of the driveway which is to be maintained by a watering system in summer. Furthermore, he believes the removal of the existing solid masonry wall and its replacement with an open form will serve to reduce the visual bulk of the proposal from the adjoining property. These features of the development together with the new balustrade to the driveway and the screening at the laundry door level collectively improve the amenity of the neighbour at 158 to 164 Fowler Road. 7In Mr Glendinning's assessment the development does not "touch the natural features," but rather sits over them. His evidence is that the recessed columns integrate the elevated concrete slab with the natural environment and with the landscaping the result is a "suitable outcome". The height of the driveway is not increased by the development and elevated driveways of this type of construction are not uncommon in Sydney. 8With respect to overlooking, Mr Glendinning's evidence is that overlooking is not unusual in residential environments and the proposed landscaping will assist in minimising opportunities for overlooking. The lightweight privacy screen offered by the applicant at a height of 1.6 m for a length of 5 m at the western end of the driveway would also reduce any overlooking and improve privacy between the properties. 9In Mr Glendinning's opinion the improved access, safety and convenience generated by the development for the occupants of the site warrant an approval of the application. The Council's Position 10The Council contends that the development causes the built form to dominate the natural features of the site because it is not in keeping with the characteristics of the site or the local area. This outcome, it submits, is inconsistent with the objectives of the zone for this environmentally sensitive land. 11The development is also unacceptable because it does not mitigate the visual intrusion of building bulk on neighbouring properties. It is therefore inconsistent with the design principles in Chapter 3.C of the DCP. Of particular concern to the Council is its impact on the existing amenity of the residents at 158 to164 Fowler Road. Relying on Mr Adamson's assessment, the Council submit that the extended elevated structure, located about 1.5 m from the common boundary will cause unacceptable adverse impacts in terms of overlooking, privacy and visual intrusion. Standing at a height of 4.2 m above the ground level, the Council contends the concrete slab and rail will dominate the property at 158 to 164 Fowler Road. 12While numerically the 1.5 m minium side setback is compliant with the LEP the Council submits it is an inadequate side boundary setback in the particular circumstances of this case. Based on Mr Adamson's assessment the extension, at its worst, is an elevated platform some 3.2 m above natural ground level before it drops 2 m above natural ground level. And if the height of the glass rail is included then the structure will be about 4.2 m above natural ground level. A structure at this height supported by four reinforced concrete columns along the northwestern edge of the platform (recessed under the cantilevered concrete slab) will be visually dominant in the natural environment and unsympathetic to the natural landscape. 13The Council also raises concern about the viability of the landscaping in the undercroft area below the slab, which is reliant on a watering system during the summer months. However, it does not offer any expert arboreal evidence to support that concern. 14Mr Adamson gave evidence that he has not seen an elevated driveway of this scale in a bushland context in the Sutherland Shire. It is contrary to the objectives of the zone and an unexpected outcome in the locality. In his assessment the development competes with the landscape setting of the location. It does not complement or enhance the natural landscape setting of the zone or natural landform of the site. Mr Adamson's evidence is that there is no demonstrated planning need for the development. He submits that removal of the planter boxes on the existing driveway would increase the parking area and improve manoeuvrability of vehicles onsite. 15The site already provides onsite parking sufficient to cater for three vehicles together with turning facilities within the lot and the parking area is compliant with the Australian Standards. After assessment under s 79C the Council contends that the adverse environmental impacts of the development outweigh the benefits for the applicant. Findings 16While an additional area to manoeuvre a vehicle would make the exercise more comfortable I accept the Council's evidence that the adverse environmental and amenity impacts warrant a refusal of this application. 17The planners agree that the existing parking arrangements onsite satisfy Chapter 7 cl 1.b.7 of the DCP 2006 and the dimensions are within the requisite Australian Standard 2890.1-2004 (Parking Facilities - Off Street Car Parking). 18After a consideration of cll 48 and 49 of the LEP and the evidence I find that the development does not adequately respond to the natural landform of the site. Nor does not satisfactorily achieve objective (b) of the Zone. It does not "... limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate" or "complement or enhance the natural landscape". I accept Mr Adamson's assessment that it will be a visually dominant built form in the natural environment, particularly when viewed from the adjoining property at 158 to 164 Fowler Road. The proposed landscaping in the undercroft will not - based on the evidence before me - adequately integrate the development with the natural environment or improve the amenity of the neighbour to the southwest. 19The view of the site confirmed the Council's evidence that the development will cause adverse impacts in relation to overlooking, privacy and visual intrusion in respect of the adjoining property at 158 to164 Fowler Road. 20The application is unacceptable under s 79C(a)(i) of the Act in that it does not comply with the objectives of clause 11(a)(i) of the LEP, because it does not compliment the natural landscape setting of the zone. Furthermore, the development is unacceptable under s 79C(1)(a)(iii) of the Act because it does not comply with the objectives of clause 49(b) of the LEP. I agree with Mr Adamson's that there is simply no planning justification for an approval of the development in the circumstances of this case. Adequate and compliant parking and manoeuvrability currently exists on this site. As Mr Adamson suggests, the manoeuvrability of vehicles could be improved if the applicant removed the planter boxes placed on the driveway. That is a matter for the applicant. Accordingly, the Court orders: Orders (1)The appeal is dismissed. (2)Development consent to DA11-0660 for the construction of a driveway extension at 156 Fowler Road Illawong is determined by refusal. (3)Three of the exhibits will be returned upon written publication of the judgment. Susan Dixon 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: 13 August 2012