Land and Environment Court New South Wales Medium Neutral Citation: Brown v Pittwater Council [2012] NSWLEC 1301 Hearing dates: 10 October 2012 Decision date: 31 October 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No N0148/12 for a studio over the garage is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, except for exhibit 2. Catchwords: DEVELOPMENT APPLICATION: studio above a garage, bulk and scale, site coverage and precedent. Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Category: Principal judgment Parties: Mr Nicholas Charles Brown (Applicant) Pittwater Council (Respondent) Representation: Ms Susan Hill (Solicitor) (Applicant) Mr Michael Staunton (Barrister) (Respondent) Solicitors Susan Hill & Associates Lawyers (Applicant) King & Wood Mallesons (Respondent) File Number(s): 10798 of 2012 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No. 148/12 (the proposal) by Pittwater Council (the Council) for a studio above an approved garage, at 86 Bungan Head Road, Newport (the site). 2The appeal was subject to mandatory conciliation on 10 October 2012, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i). The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. Issues 3The Council's contentions in the matter can be summarised as: * The proposal results in unacceptable bulk and scale and will dominate the natural setting; * The proposal does not comply with the required maximum site coverage of 40% and does not satisfy the outcomes of the control. * The proposal will set an undesirable precedent in the locality. The site and its context 4Bungan Head Road sweeps around the headland on which Bungan Castle is situated and the site is located on the western side of Bungan Head Road, to the north of the Castle. The site orientates to the north-east, overlooking the coast and slopes steeply towards the street. 5There is an existing two storey dwelling over a basement level on the site. 688 Bungan Head Road to the north of the site contains a double garage with a studio over adjacent to the street boundary and the dwelling is located towards the rear of the site and accessed via a stair. 84 Bungan Head Road to the south of the site is a three storey dwelling over a basement garage, currently under construction. Background and the proposal 7The proposal is to construct a studio and bathroom above the double garage, accessed via an external stair on the southern side of the site. 8The proposal was amended during the s 34AA conciliation conference to reduce the size of the studio, by increasing the setback from the northern boundary and the setback of the studio from the street façade of the garage. The amended proposal was tendered as two sketches (plan and section) prepared by the architect, as exhibit C (the amended proposal). 9DA 194/11 was approved 20.12.11 for significant alterations and additions to the existing dwelling and includes a double garage adjacent to the street boundary, an external stair between the site entry and the dwelling on the southern side of the garage with a roof structure over the stair. The alterations and additions are currently under construction. Planning Framework 10The site is zoned 2(a) Residential under the provisions of Pittwater Local Environment Plan 1993 (LEP 1993) and the proposal is permissible with consent. 11The proposal is subject to the relevant provisions of Pittwater 21 Development Control Plan (DCP 21). Part A of DCP contains context statements for the various precincts within the municipality and desired character statements for those precincts. The relevant statements within the desired character statement for the Newport locality, at clause A4.10, are: The Newport locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting, integrated with the landform and landscape. Future development is to be located so as to be supported by adequate infrastructure, including roads, water and sewerage facilities, and public transport. Future development will maintain a height limit below the tree canopy and minimise bulk and scale. Existing and new native vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise facade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment. Development on slopes will be stepped down or along the slope to integrate with the landform and landscape, and minimise site disturbance. Development will be designed to be safe from hazards. A balance will be achieved between maintaining the landforms, landscapes and other features of the natural environment, and the development of land. As far as possible, the locally native tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, to provide feed trees and undergrowth for koalas and other animals, and to enhance wildlife corridors. 12Clause D10.1 'Character as viewed from a public place' of DCP 21 includes the following relevant outcomes: To achieve the desired future character of the Locality. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing built form and natural environment. (En, S, Ec) To enhance the existing streetscapes and promote a scale and density that is in scale with the height of the natural environment. The visual impact of the built form is secondary to landscaping and vegetation. High quality buildings designed and built for the natural context and any natural hazards. (En, S) Buildings do not dominate the streetscape and are at 'human scale'. Within residential areas, buildings give the appearance of being two-storey maximum. (S) To enhance the bushland vista of Pittwater as the predominant feature of the landscape with built form, including parking structures being a secondary component. To ensure that development adjacent to public domain elements such as waterways, streets, parks, bushland reserves and other public open spaces, compliments the landscape character, public use and enjoyment of that land. (En, S) 13Clause D10.1 includes the following relevant controls: Buildings which front the street must have a street presence and incorporate design elements (such as roof forms, textures, materials, the arrangement of windows, modulation, spatial separation, landscaping etc) that are compatible with any design themes for the locality. Blank street frontage facades without windows shall not be permitted. Garages, carports and other parking structures including hardstand areas must not be the dominant site feature when viewed from a public place. Except in the Newport Commercial centre, parking structures must be located behind the front building line, preferably set back further than the primary building, and be no greater in width than 50% of the lot frontage, or 7.5 m, whichever is the lesser. Landscaping is to be integrated with the building design to screen the visual impact of the built form. In residential areas, buildings are to give the appearance of being secondary to landscaping and vegetation. 14Clause D10.7 'Front building line' of DCP 21 includes the following relevant outcomes: Achieve the desired future character of the Locality. (S) Vegetation is retained and enhanced to visually reduce the built form. (En) To enhance the existing streetscapes and promote a scale and density that is in keeping with the height of the natural environment. To encourage attractive street frontages and improve pedestrian amenity. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing urban environment. 15Clause D10.7 includes the following relevant control: Built structures, other than driveways, fences and retaining walls are not permitted within the front building setback. 16Clause D10.7 includes the following relevant variations: Where the outcomes of this control are achieved, Council may accept variation to these building lines in the following circumstances: * considering established building lines; * degree of cut and fill; * retention of trees and vegetation; * where it is difficult to achieve acceptable levels for building; * for narrow or irregular shaped blocks; * where the topographic features of the site need to be preserved; * where the depth of a property is less than 20 metres. Where carparking is to be provided on steeply sloping sites, reduced or nil setbacks for carparking structures and spaces may be considered, however all other structures on the site must satisfy or exceed the minimum building line applicable. Public submissions 17The neighbours at 88 Bungan Head Road engaged a planner who gave evidence on site. Their concerns relate to the alterations and additions currently under construction, which are not relevant to the matter before the Court. If the neighbours are of the opinion that there are matters that do not comply with the approved plans, then they should raise this with the Council. Expert evidence 18Expert planning evidence was provided by Mr Vaughan Millgan on behalf of the applicant and Mrs Sophie Litherland on behalf of the Council. 19The experts agree that the amended proposal will not numerically increase the site coverage calculation of 62%. Mrs Litherland says that notwithstanding this, the cumulative impact of the amended proposal and the original development should be considered, as the original development exceeded the control for site coverage and this has resulted in a reduced landscaped area. 20The experts agree that the topography of the site influences the form of the development within the locality and that the most prominent view of the proposal is approaching the site from the south, coming down the hill from the bend around Bungan Castle. 21The experts agree that the proposal is forward of the front building line. According to Mrs Litherland, as the amended proposal is not an essential structure, such as a garage, it is unacceptable to have it forward of the front building line. According to Mr Milligan, the amended proposal achieves the stated outcomes for the front building line control and it is consistent with the established pattern of development which is characterised by built structures forward of the front building line. 22Mrs Litherland is of the view that the amendments made to the proposal during the conciliation phase of the proceedings do not sufficiently address her concerns regarding the bulk and scale of the proposal and when viewed from Bungan Head Road, in conjunction with the dwelling behind, the amended proposal will result in a substantial vertical mass. 23Mrs Litherland says that the amended proposal should not be considered with reference to the existing studio over the garage at 88 Bungan Head Road because it was constructed c1940 and is not characteristic of the area. Mr Milligan says that the amended proposal is consistent with the existing studio adjacent and the amended proposal will be more discrete that the existing studio adjacent as it is further setback from the street boundary and uses more compatible materials and finishes. Findings Site coverage 24I accept the evidence of the experts that the site coverage is not numerically increased by the proposal. As the Council granted approval to the original development, it follows that their assessment was that the site coverage was acceptable. 25In my opinion, the issues raised by Mrs Litherland under site coverage are more relevant to bulk and scale, which are addressed under the following section of the judgment. Bulk and scale 26I agree with the experts that the topography of the site is an important consideration in assessing the merits of this application. The owners of dwellings on the steeply sloping high side of this portion of Bungan Head Road have mostly opted for a winding driveway that utilises the width of the site to provide vehicular access to a dwelling located further back on the site and high above the road. This option requires significant earthworks to provide a suitable gradient for the driveway. Two examples of the winding driveway option are at neighbouring properties, 84 and 90 Bungan Head Road. 27The alterations and additions currently under construction include the demolition of the former driveway (which benefited from an easement over the adjoining allotment, 84 Bungan Head Road, presumably because the width of the site was insufficient to provide vehicular access up the steep slope to the dwelling) and the construction of a garage at street level, with a stair access up to the dwelling. 28The neighbouring dwelling at 88 Bungan Head Road also has a garage and studio over, located at the street boundary and is clad in painted weatherboards with a hipped, metal roof. The proposed studio is located adjacent to the existing studio at 88 Bungan Head Road with a similar setback to the street. I agree with Mr Milligan that the amended proposal is consistent with the existing studio adjacent and that it is relevant to consider the studio adjacent as it forms part of the context of the proposal. 29There is a steep drop of approximately 3.5 m between the basement level outdoor terrace and the garage parapet. The proposal modifies the landform by terracing the site; to create a level turfed area on the roof of the studio, leading out from the lower ground outdoor area. In my opinion, the amended proposal is an appropriate response to the steep topography of the site and a reasonable alternative to the winding driveway option. It is well designed, articulated and integrated into the landscape. 30I am satisfied that the amended proposal meets the relevant outcomes of clause D10.1 of DCP 21, for the following reasons: * The amended proposal responds to the steep topography of the site and the existing studio on the neighbouring allotment; * The amended proposal is an appropriate scale and will not dominate the streetscape; and * The amended proposal is well designed and will create a landscaped terrace, which steps back from the front elevation of the garage. 31In regard to Mrs Litherland's position regarding the 'substantial vertical mass' of the proposal, I am satisfied that the amended proposal adequately addresses her concerns by increasing the landscaped 'step' between the garage level and the studio and by significantly reducing the width of the studio, so that the steep fall of the site is evident on the northern side. When viewed obliquely, the terracing of the site will be evident and the studio will be read as part of the site works, rather than part of the dwelling. Development forward of the front building line 32The experts agree that the proposal is forward of the front building line. I agree with Mr Milligan that the amended proposal achieves the relevant outcomes of clause D10.7 of DCP 21 for the following reasons: * The amended proposal includes significant landscaping, which visually reduces the built form by incorporating the studio structure into the stepped terracing of the site between the garage and the dwelling; and * The amended proposal is in keeping with the scale of the streetscape established by the existing studio and garage at 88 Bungan Head Road. 33As the amended proposal achieves the relevant outcomes of clause D10.7, the building line can be varied if it meets the circumstances outlined in clause D10.7 for a variation. I am satisfied that the existing studio over the garage at 88 Bungan Head Road provides an established building line forward of the front building line, as demonstrated by Exhibit D, which shows the predominant building setback on the western side of Bungan Head Road. Precedent 34I accept that precedent can be a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, in this case, the circumstances are peculiar to the site and its context and, in my view, are not readily transferable to other sites in the area. Any future application for a studio addition over a garage forward of the front building line in the Pittwater municipality should be considered on its own merits. Conclusion 35I have given weight in my decision to the fact that the amended proposal terraces a steeply sloping site to provide a usable and level turfed area, which reflects a balance between maintaining the landform and the development of the allotment. The amended proposal is, in my opinion, an appropriate response to the constraints and opportunities of this site. 36I am satisfied that the proposal, as amended during the conciliation phase of the proceedings, can be granted approval. Interim findings - amended architectural plans 37Interim findings were handed down on 19 October 2012 requiring amended landscape and architectural plans, in accordance with the amendments made to the proposal during the conciliation conference. 38The applicant filed the amended plans on 26 October 2012. 39The conditions of consent have been amended to list the plans filed on 26 October 2012, as follows: * Landscape plan 1206/DA-L01 rev A prepared by Trish Dobson, dated 24 October 2012; * Architectural plans prepared by Richard Cole Architecture, dated 24 October 2012: * A01 rev E * A02 rev E * A03 rev E * A04 rev E * A05 rev E * A06 rev E Orders 40The orders of the Court are: 1. The appeal is upheld. 2. Development Application No N0148/12 for a studio over the garage is approved, subject to the conditions in Annexure A. 3. The exhibits are returned, except for exhibit 2. Susan O'Neill Commissioner of the Court ANNEXURE A ********** 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: 31 October 2012