Land and Environment Court New South Wales Medium Neutral Citation: Belzer v Central Coast Council [2016] NSWLEC 1462 Hearing dates: 27 September 2016 Date of orders: 28 September 2016 Decision date: 28 September 2016 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is partially upheld. (2) Condition 4.5 of the conditions of consent for Development Application 47218/2015 Part 1 (attached as 'Annexure A') is deleted. (3) Condition 6.2 of the conditions of consent for Development Application 47218/2015 Part 1 (attached as 'Annexure A') is retained. (4) The exhibits are returned other than Exhibits 1 and A. Catchwords: APPEAL: conditions of consent; retention of views; landscape vegetation height limits. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Texts Cited: Nil Category: Principal judgment Parties: Eric Belzer (Applicant) Central Coast Council (Respondent) Representation: Solicitors: Eric Belzer (Applicant) (Litigant in person) Mr Martin Ball, Central Coast Council (Respondent) File Number(s): 2016/167272 Publication restriction: Nil Judgment 1. Mr Eric Belzer has appealed the Respondent's determination of his development application (DA 47218/2015 Part 1) in relation to the proposed demolition of an existing dwelling and erection of a new dwelling house at 1 Calais Rd Wamberal, NSW (Lot 76 of DP 13304). The appeal seeks the deletion of two conditions (conditions 4.5 and 6.2) included within the development consent issued by the Respondent (attached as 'Annexure A'). 2. The appeal is bought pursuant to s.97 of the Environmental Planning and Assessment Act 1979 (EPA Act), and was the subject of a conciliation conference under s34AA of the Land and Environment Court Act 1979 (LEC Act). 3. As the matter was unable to be resolved through conciliation, the conciliation conference was terminated and the matter heard forthwith as required under s.34AA. Site inspection 1. A site inspection undertaken at the commencement of the conciliation conference included a viewing of both the subject property and neighbouring properties at 2 and 4 Calais Rd, Wamberal. 2. The Court also noted the submission of one objector (Mr Paul Hemmings) representing the owners of 2 Calais Rd in relation to the potential impact of the deletion of condition 6.2 on the view lines from 2 Calais Rd, Wamberal towards Wamberal Beach. 3. At the commencement of the hearing it was noted that the Court had viewed the subject site from the neighbouring properties to inspect the view lines from those properties. Those view lines extend past the southern boundary subject site, towards Wamberal Beach and its interface with the ocean. This included the views from the living areas and both the southern and northern balconies at 2 Calais Rd, and the living areas and balcony of 4 Calais Rd, Wamberal. Position of parties 1. At the hearing the Respondent conceded the deletion of condition 4.5. 2. Condition 6.2 concerned a requirement that the Applicant maintain all vegetation and landscaping between the approved dwelling house and the southern boundary, as well as between the approved dwelling and the western (street) boundary, to a maximum height of 2m. 3. The Respondent noted that the retention of condition 6.2 was important in order to maintain the future view lines to Wamberal Beach from both 2 and 4 Calais Rd, following the construction of the approved dwelling house on 1 Calais Rd. 4. The Respondent contended that an application of the view sharing principles enunciated in Tenacity Consulting v Warringah Council (2004) would conclude that vegetation in excess of 2m height, in the areas identified in condition 6.2, would unreasonably impact on the easterly and south-easterly views available from the living areas and balconies of 2 and 4 Calais Rd, Wamberal. 5. The Respondent noted that this conclusion was supported by evidence tendered as Exhibit 2 and 3, being the expert reports of Mr Michael Leavey, consultant planner. 6. The Applicant noted the deletion of condition 6.2 was sought as the condition unreasonably constrained the Applicant's opportunities to introduce screening vegetation to provide privacy to certain windows on the southern aspect of the approved dwelling house. He noted that members of the public utilising the access path to Wamberal Beach adjacent to the subject site's southern boundary would have a direct line of sight to those windows. 7. The Applicant further noted that restricting the height of vegetation in the area on the western boundary of the property, between the approved dwelling house and the street, served no purpose in terms of view protection. Evidence 1. In his expert evidence, consultant planner Mr Michael Leavey, confirmed his view that the inclusion of condition 6.2 fulfilled a planning purpose, that being the prevention of further view loss to adjoining properties arising from the approved development on the subject site. 2. In support of this submission Mr Leavey referred to a series of eight montages tendered in evidence as Exhibit 4. These illustrated the impact of the approved dwelling on the view lines from a standing position within the living areas and balconies of 2 and 4 Calais Rd. The montages also illustrated the potential impact on those view lines should the permitted height of vegetation along the southern boundary be increased from a height of 2 m to 3m. 3. Mr Leavey also made reference to two photographs taken during the terminated conciliation proceedings and tendered as Exhibits 5 and 6. These further illustrated the potential impact on view lines from the balconies of 2 and 4 Calais Rd should the requirements of condition 6.2 be amended to permit vegetation maintenance to a height of 3m in the southern western corner of the subject site. 4. Mr Leavey noted that vegetation at a height of 3m in the southern western corner of the subject site would reduce the water views, and remove the beach/water interface view, available from the balconies of 2 Calais Rd. 5. Mr Leavey said that, as a consequence of the viewing undertaken during the conciliation conference, he was of the opinion that some minor modifications to the vegetation height limits set under condition 6.2 may be possible in limited locations on the subject site. 6. He referred to Exhibit 8, being a copy of Figure 12 drawn from Exhibit 2 which had been marked up to indicate several locations where a variation to the vegetation height limit (up to 2.5m) may, in his view, be possible. 7. Mr Leavey noted that the windows on the south face of the approved dwelling included those to a stairwell space. 8. In cross examination, Mr Leavey noted that the privacy concerns of the Applicant in relation to the south facing ground and first floor lounge and sitting room windows might be addressed by means other than increasing the permitted height of vegetation beyond 2m along the southern boundary of the subject site. 9. The Applicant did not tender any expert evidence in contradiction to the testimony of Mr Leavey. Findings 1. Based on the evidence provided in Exhibits 2, 3, 4, 5 and 6, and the testimony of Mr Leavey, I find that deletion of condition 6.2 would give rise to unacceptable potential impacts on the view lines from the living areas and balconies of properties at 2 and 4 Calais Rd. 2. The potential impacts would include loss of views at the interface of the beach and water, and the wave zone, at Wamberal beach. 3. Based on these points, I accept the conclusion of the expert report of Mr Leavey tendered as Exhibit 3, which identifies the potential impact of the view loss from deletion of condition 6.2 as severe to devastating. 4. In relation to Exhibit 8, I find that a relaxation of the 2m height limit within the locations marked would risk complicating the maintenance of vegetation along the southern boundary, and would place the view lines from the first floors of 2 and 4 Calais Rd at risk. Conclusion 1. The Court orders that: 1. The appeal is partially upheld. 2. Condition 4.5 of the conditions of consent for Development Application 47218/2015 Part 1 (attached as 'Annexure A') is deleted. 3. Condition 6.2 of the conditions of consent for Development Application 47218/2015 Part 1 (attached as 'Annexure A') is retained. 4. The exhibits are returned other than Exhibits 1 and A. ………………….. Michael Chilcott Commissioner 167272.16 - Annexure A (93.7 KB, pdf) ********** 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: 06 October 2016