Land and Environment Court New South Wales Medium Neutral Citation: CMT Architects P/L v Sutherland Shire Council [2014] NSWLEC 1160 Hearing dates: 7 August 2014 Decision date: 14 August 2014 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No.13/0846 for the demolition of an existing dwelling and the erection of a new dwelling and swimming pool at Lot 24, DP 539621, 185 Woolooware Road, Burraneer is approved, subject to the conditions of consent in Annexure A. 3. Pursuant to cl 7 of State Environmental Planning Policy No. 1 - Development Standards (Policy), the written objections made by the applicant under cl 6 of the Policy with respect to compliance with the development standards under cll 33(4)(a), 33(4)(b)(i) and 36(3) of the Sutherland Shire Local Environmental Plan 2006 be upheld. 4. No order as to costs. 5. The exhibits, other than exhibits 3, 4, 5, A, B, C, D, E and F, are returned. Catchwords: DEVELOPMENT APPLICATION - consent orders; resident objectors; impact on views from adjoining properties; variation to the maximum height development standard; variation to the minimum landscaped area development standard Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Wehbe v Pittwater Council [2007] NSWLEC 827 Category: Principal judgment Parties: CMT Architects Australia Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Mr Paul Vergotis Solicitor (Applicant) Ms Janelle Amy Solicitor (Respondent) TressCox Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 10222 of 2014 Judgment 1COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979, comes before the Court for consent orders in relation to Development Application No. 13/0846 for the demolition of an existing dwelling and the erection of a new dwelling and swimming pool (the proposal) at 185 Woolooware Road, Burraneer (the site). 2A mediation was held on 16 June 2014 and following the mediation, the applicant provided Council with further amended plans (the amended proposal). The parties agreed to enter into consent orders based on the amendments made to the proposal, which are, in summary: * the overall height of the proposal is reduced and the highest ridge of the roof is reduced from RL15.44 to RL14.725; * the overall bulk of the proposal is reduced, resulting in a reduction of the gross floor area (GFA) so that the amended proposal complies with the maximum GFA development standard at cl 35(5) of the Sutherland Local Environment Plan 2006 (LEP 2006); * the setbacks of the proposal from the foreshore and side boundaries are increased; * The screening on the side of the upper balconies is removed so as not to interfere with views from adjoining properties; * the pool level is reduced in height compared to both the original proposal and the existing pool and the pool is relocated with a greater setback from the foreshore; * the landscaped area between the amended proposal and the foreshore is increased and additional plantings added with stepped planter boxes to soften the appearance of the amended proposal when viewed from the water; and * the existing boatshed is to be painted a recessive colour. 3In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 4Nearby residents were notified of the amended proposal by letter, dated 18 July 2014 (exhibit 4) and resident objectors were invited to attend the consent orders hearing and provide evidence. Two resident objectors provided evidence at the commencement of the hearing on site and the Court, in the company of the parties and their experts, viewed the site from each of the resident objectors' properties. The concerns of the resident objectors can be summarised as: * the proposal will diminish the views to the south and south-west from the terrace, dining and lounge areas of 177 Woolooware Road; * the proposal will diminish views to the south-west from 183A Woolooware Road; * the removal of the existing vegetation along the eastern boundary of the site will result in a loss of privacy for 183A Woolooware Road; and * concerns about access and damage during construction. 5Council's planning expert, Ms Debbie Pinfold, is satisfied that the amended proposal is acceptable in the circumstances, having regard to the issues raised by the resident objectors (exhibit 3 and oral evidence) and I accept Ms Pinfold's evidence. Planning framework, evidence and findings 6The site is zoned 2 - Environmental Housing (Scenic Quality) pursuant to LEP 2006 and the proposal is permissible with consent. The relevant objectives of the zone are: (b) to allow development that is of a scale and nature that complements the natural surroundings of the zone, (d) to ensure the character of the zone, as one comprised predominantly of dwelling houses, is not diminished by the cumulative impacts of development, 7Clause 33(4) of LEP 2006 includes the following maximum height development standard: (a) the building must not comprise more than 2 storeys, (b) the building must not exceed the following: (i) a height of 7.2 metres, as measured vertically from ground level to any point on the uppermost ceiling in the building, 8The relevant objectives for the maximum height development standard are: (a) to ensure the scale of buildings: (i) is consistent with the desired scale and character of the street and locality in which the buildings are located, and (ii) complements any natural landscape setting of the buildings, (b) to allow reasonable daylight access to all buildings and the public domain, (c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion, (d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves, 9Clause 36(3) of LEP 2006 requires a minimum landscaped area of 541sqm, which is equivalent to 47% of the total site area of 1138sqm. The relevant objectives for the minimum landscaped area development standard are: (a) to ensure adequate opportunities for the retention or provision of vegetation that contributes to biodiversity, (b) to ensure adequate opportunities for tree retention and tree planting so as to preserve and enhance the tree canopy of Sutherland Shire, (c) to minimise urban run-off by maximising pervious areas on the sites of development, (d) to ensure that the visual impact of development is minimised by appropriate landscaping and that the landscaping is maintained, 10The provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1) at cl 3, provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Environmental Planning and Assessment Act 1979. The application is supported by a written objection that compliance with the maximum height and minimum landscaped area development standards is unreasonable or unnecessary in the circumstances and specifies the grounds of that objection (exhibit C). 11The amended proposal exceeds the development standards as follows: * it is 3 storeys in height; * there is an exceedance in the ceiling height at the north-western corner of the proposal; and * the landscaped area is 480sqm, which is equivalent to 42% of the site area. 12The most commonly invoked way to establish that strict compliance with the development standard is unreasonable or unnecessary, is because the relevant objectives of the zone and the development standards are achieved, notwithstanding the non-compliance with the numerical standard (Wehbe v Pittwater Council [2007] NSWLEC 827, par 42). 13The written objection (exhibit C) justifies the contravention of the development standards in LEP 2006 on the following grounds: * the overshadowing impact of the amended proposal on 191 Woolooware Road is acceptable; * the non-compliance of the ceiling level at the north western corner and the number of storeys of the amended proposal does not result in any additional impact on views from adjoining properties; * the landscaping proposed is a significant enhancement of the quality and quantity of landscaping on the existing site. 14According to Ms Pinfold (exhibit 3), the amended proposal is acceptable and is consistent with the objectives of the zone and development standards, for the following reasons: * the amended proposal significantly reduces the visual bulk of the building when viewed from the waterway; * the exceedance of the maximum height development standard occurs due to the excavated ground level beneath the basement and the impact is not visible from the exterior of the building because the ground levels adjacent to the building are higher; * the height of the amended proposal does not impact on the shadows on the adjoining site in the middle of the day, it is the additional length of the amended proposal that increases the overshadowing of the adjoining property to the south and the amount of additional overshadowing is reasonable, as the building setback from the foreshore is compliant with the foreshore building line; * the increased articulation and side setbacks of the amended proposal and compliance with the foreshore building line setback resolves the impact of the proposal on views from adjoining properties to a satisfactory extent; * the amended landscaping proposal achieves the objectives of the minimum landscaped area development standard in LEP 2006; and * the SEPP 1 objection to the development standards in LEP 2006 is well founded and resolves Council's contentions. 15I accept Ms Pinfold's evidence that the applicant's written objection to contravene the maximum height and minimum landscaped area development standards in LEP 2006 adequately addresses the matters required to be demonstrated and that the amended proposal is consistent with the relevant objectives of the zone and the development standards in LEP 2006. Conclusion 16I am satisfied that the amended proposal complements its landscape setting and minimises its impact on adjoining or nearby properties from loss of views, loss of privacy, overshadowing and visual intrusion and that the visual impact of the amended proposal is acceptable when viewed from adjoining properties and the waterways and is ameliorated by appropriate landscaping. 17In considering the amended plans and documents and agreed conditions of consent (Annexure A) and taking into consideration the issues raised by the resident objectors, I am satisfied that it is 'lawful and appropriate' to grant the consent, having regard to the whole of the circumstances. Orders 18The orders of the Court are: (1)By consent, the appeal is upheld. (2)Development Application No. 13/0846 for the demolition of an existing dwelling and the erection of a new dwelling and swimming pool at Lot 24, DP 539621, 185 Woolooware Road, Burraneer is approved, subject to the conditions of consent in Annexure 'A'. (3)Pursuant to cl 7 of State Environmental Planning Policy No. 1 - Development Standards (Policy), the written objections made by the applicant under cl 6 of the Policy with respect to compliance with the development standards under cll 33(4)(a), 33(4)(b)(i) and 36(3) of the Sutherland Shire Local Environmental Plan 2006 be upheld. (4)No order as to costs. (5)The exhibits, other than exhibits 3, 4, 5, A, B, C, D, E and F, are returned. 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: 14 August 2014