| Record of hearing |
Judge Talbot J
Number 10683 of 1994
Parties Applicant Reginald Benson
Respondent Sutherland Shire Council
Key Issues . Dual occupancy
. Visual impact
. Access
. Height
. Overdevelopment
Hearing dates 17 - 19 May 1995, Written Submissions 26 May 1995, 1 June 1995, 6 June 1995
Judgement Reserved
Date of judgement 16 June 1995
Appearances Applicant Mr D P Wilson (Barrister)
Respondent Mr J J Webster (Barrister)
Solicitors Applicant Martin Churchill Solicitors
Respondent Owen Hughes Solicitor
Sutherland Shire Council
Number of pages 12
Summary of orders
. Appeal dismissed
Contents page
. The Proposal 3
. Planning Controls 3
. The Issues 8
. Orders 12
IN THE LAND AND MATTER No. 10683 of 1994
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 16 June 1995
Respondent
This class 1 appeal relates to proposed development on a block of land which has a frontage to the Woronora River within the Sutherland Shire.
The site area is approximately 860 m2. The block of land is 12.19 metres wide with an average site depth of 70.6 metres.
The northern boundary of the land is the mean high water mark of the river, whereas the southern boundary is with a block of land known as Lot 131A. Lot 131A is subject to a right of carriageway in favour of the subject land and numerous other allotments. In the immediate locality of the subject land, Lot 131A is approximately 20.5 metres wide. A formed carriageway occupies approximately one half of its width. Otherwise Lot 131A has no improvements although it supports significant vegetation, including several large trees adjacent to its boundary with the subject site.
Lot 131A is described as Prince Edward Park Road and the subject land, Lot 87 DP 5989, is known as No. 209 Prince Edward Park Road.
The land is zoned 2(a1) Residential under Sutherland Local Environmental Plan 1993 (the LEP) and is within a Foreshore Scenic Protection Area. There is a 10 metre Foreshore Building line across the land.
A Code for Foreshore Development adopted by council on 5 April 1994 applies to the land.
A single storey, two bedroom fibro cottage is erected on the lower portion of the site, near the waterfront. There is also a single level boatshed on the northern or lower area of the site adjacent to the river. The proposed development includes some improvements to the existing cottage and the outdoor area adjacent to it and the boatshed.
A walkway leading from the end of Prince Edward Park Road proper traverses the site at the rear of the boatshed. This walkway provides an informal access for pedestrians to residential allotments west of the site.
Vehicular access is from Severn Road across Lot 18 DP 839827 and Lot 131A. Lot 18 is owned by Sutherland Shire Council and is community land under Pt 2 of the Local Government Act 1993. A bitumen sealed roadway with kerb and gutter along one side has been constructed across Lot 18, although it is not a public road.
The site falls over 20 metres from the boundary with Lot 131A down to the northern boundary along the river. The major part of the fall is through a rock escarpment in the middle of the site. The upper and lower portions of the site are connected by timber stairs. The escarpment consists largely of exposed sandstone outcrops.
The upper portion of the site is lightly timbered with eucalypt species. Two mature Sydney Grey Gum are located in the central portion of the escarpment. Only one of these trees is in good health. The other cannot be relied upon to provide screening indefinitely.
THE PROPOSAL
In addition to the minor works proposed in respect of the existing dwelling, the applicant intends to construct a one and two level brick and tile three bedroom residence with a detached brick garage above the escarpment. The gross floor area of the new dwelling will be 281 m2 with a timber deck at the upper level comprising 28.17 m2. The new dwelling will be set back 900 mm from the eastern boundary and 1,500 mm from the western boundary. It will be built to a ridge height of approximately nine metres.
The development application describes the new dwelling as a dual occupancy. The application was accompanied by a statement of environmental effects, plans and an objection pursuant to SEPP 1 regarding the height of the building under SREP 12. The council has not determined the application.
PLANNING CONTROLS
The following planning controls are relevant to the proposal.
Sutherland Local Environmental Plan 1993
In zone 2(a1) Residential, dwelling houses are allowed without development consent but a dual occupancy development is allowed only with development consent. Although the LEP does not prohibit more than one dwelling on an allotment, as the applicant has categorised the development as dual occupancy, the Court proposes to consider it as such. It certainly meets the criteria for dual occupancy in SREP 12.
A foreshore building line applies pursuant to cl 21 of the LEP. The objectives of the clause are set out in subparagraph (3) as follows:
"(a) preservation and enhancement of the natural features and vegetation of the area where the land meets the water;
(b) restoration of the land below the foreshore building line, so far as practicable, to a natural state, with a minimum intrusion of man-made structures;
(c) no development below the foreshore building line other than development excepted by this clause;
(d) a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment;
(e) conservation and enhancement of waterfront development of heritage value; and
(f) avoidance of pollution of, or adverse ecological effects on, the waterways."
Pursuant to subcl (6), the council shall not grant consent to development on an allotment of land having a foreshore building line unless any building or work, not exempted, between the foreshore building line or tidal waters is, or will within a reasonable time be, removed, or the applicant establishes to the satisfaction of the council that its removal -
"(c) would be inconsistent with any of the objectives of this clause;
(d) is not necessary to achieve the objectives of this clause; or
(e) is unreasonable or unnecessary in the circumstances of the case, having regard to the provisions of any relevant development control plan."
The above constraint does not apply to buildings or works on reclaimed land or, inter alia, to single storey boatsheds, landscaping and barbecues.
In this respect the council contends that a sandstone retaining wall within the foreshore building line is not an exempted structure.
Subclause 8 provides that State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) applies to a requirement under cl 21 in the same way as it applies to a development standard.
Clause 20 of the draft Sutherland LEP makes similar provisions in regard to development within the foreshore building line.
Clause 22 stipulates that development must not exceed a height of 7.2 metres to any point on the upper most ceiling and 9 metres to the highest point on the roof. The development complies with this standard.
Sydney Regional Environmental Plan No. 12 - Dual Occupancy
Clause 11(1) of SREP 12 provides that if an application is made to erect a second dwelling house on an allotment where there is an existing dwelling house, the second dwelling house shall not exceed 3.6 metres in height. "Height" is defined as the distance measured vertically from any point on the ceiling of the top most floor of the building to the ground level immediately below that point. The height of the proposed building in accordance with that definition will be up to 7 metres.
Clause 11(2) of SREP 12 provides that where there is an application to erect two detached dwelling houses on a vacant allotment, the dwelling house furthest from the street frontage shall not exceed 3.6 metres in height. Although it is not necessary to resort to cl 11(2) where cl 11(1) applies the objective of this subclause appears to be to protect the privacy and amenity of adjoining rear gardens from the effect of overlooking, overshadowing and bulk. There is no street frontage for this block and arguably the river frontage could be adopted for the purpose of cl 11(2). This would accord with the way in which development in most cases has occurred along the river frontage. A significant number of the allotments, probably the majority, rely on the river as the sole means of legal access. The applicant argues that consistent with authority, Lot 131A can be treated as if it is a public road.
An objection made pursuant to SEPP 1 has been lodged in respect of the development standard contained in cl 11(1). It is submitted that compliance with the standard is unreasonable and unnecessary due to the following factors:-
"1. Development on both the immediately adjoining parcels has occurred at the northern (water front) ends of these parcels. ....
2. The existing vegetation in the vicinity minimises overlooking or loss of privacy of the immediately adjoining properties.
3. There are no unreasonable implications relating to overshadowing. ....
4. Buildings of similar or greater height are already evident in the site vicinity and in this sense the type of development proposed is seen to be in keeping with development in the locality. ....
5. Existing vegetation in the site vicinity will assist in filtering the views of the proposed development from the Woronora River. ...."
Clause 12 of SREP 12 deals specifically with privacy as follows:-
"The council shall not grant its consent to an application for a second dwelling-house made in accordance with this plan unless it is satisfied that:
(a) adequate provision is made in respect of the privacy of the proposed dwelling-house and any adjacent dwelling-house including curtilage thereof; and
(b) adequate provision is made in respect of access to natural light for the proposed dwelling-house and any adjacent dwelling-houses including the curtilage thereof."
The council was not satisfied at the commencement of the hearing that adequate arrangements have been made for the disposal of sewage from the proposed dwelling as required by cl 16 of SREP 12 which states:-
"16. The council shall not grant its consent to an application for development made in accordance with this plan unless it is satisfied that adequate arrangements have been made for the provision of a water supply to each dwelling and for the disposal of sewage and stormwater from each dwelling."
The issue of whether adequate arrangements for the disposal of sewage was ultimately resolved to the satisfaction of council.
Development Control Plan - Dual Occupancy Housing
The council adopted a Development Control Plan for Dual Occupancy Housing (the DCP) on 16 May 1994.
Under the DCP there is a 1.5 metres set back prescribed for a single storey dwelling and 3 metres for a two storey dwelling.
The proposed two storey building will be set back only 900 mm on the east and 1.5 metres on the west. The non-compliance with this standard is a product of the narrow width of the allotment.
Pursuant to cl 9 of the DCP, each dwelling must have a private open space equivalent to 50 per cent of the floor space of the dwelling. The council claims that the private open space for both dwellings are less than the minimum required. This approach reflects a narrow assessment of the available areas. Both dwellings will retain a potential to provide outdoor grassed areas. In addition there is a strong connection to the river for leisure purposes. The wide vegetated verge of the right of way adds to the open space amenity.
The DCP design guidelines in relation to solar access provide that, generally, new development must not eliminate more than one third of the existing sunlight, at ground level, of an adjoining property measured at 10 am and 2 pm on 21 June. Any overshadowing is, in practical terms, of little consequence.
Code for Foreshore Development
Council has also adopted a Code for Foreshore Development which is concerned particularly with visual effects from the waterway and from the adjoining lands. It seeks, inter alia to:
"encourage development which is in harmony with the natural surrounding and which minimises the impact on the natural environment."
The council claims that due to the height of the new dwelling in a location close to the escarpment edge and within a narrow allotment, the proposal does not fully conform with various objectives relating to "minimising impact", "blending with surroundings" or "maintaining an appropriate scale".
The code also requires a 1.5 metre set back to side property boundaries.
THE ISSUES
Essentially the council raised 18 separate issues. It is best to summarise these by reference to the general headings of inadequate legal access, non-compliance with the provisions of the LEP in relation to the foreshore building line, excessive height, inadequate parking provision, privacy, visual amenity, particularly having regard to the relationship with the river and bushland environment, and precedent.
The Court is not concerned with the claimed lack of provision of parking spaces and private recreation areas, as these have been or can be adequately addressed.
The main area of concern relates to the height of the building in such a prominent location overlooking the river. The lack of adequate set back from the side boundaries reflects the failure to address the constraints imposed by the narrow width of the block. The building will present as an imposing structure to the modest development immediately to the west, even though separated by the adjoining Lot 88. The effect will not be so significant for the more substantial dwelling on Lot 85.
The development of the allotments in this subdivision has been dictated by the desire to take advantage of building adjacent to the river frontage and the limited opportunity for access. Generally they are incapable of accommodating two dwellings. Even where that might be achieved, the constraints demand a building of modest proportions. Two storey development is common along the river frontage and, to date, this has not compromised the aspect from the river. If development above the rock escarpment proliferates, there is a concern that a wall of buildings will evolve.
There is no real prospect that the proposed structure can be screened adequately from the north and the narrow set back from the side boundaries makes it virtually impossible to plant a landscaped buffer in that area.
The building has been designed to take full advantage of the views towards and along the river without any attempt to ameliorate its impact.
The lower section of the site adjacent to the river is already highly developed with a large boatshed, a cottage and hard landscaping. If the proposed dwelling is constructed, the site will have an appearance of being built upon for its whole depth.
Although the land on either side of the actual building site is not physically used for any purpose other than the provision of pedestrian access, the utility of these areas for future recreational use and as a setting for existing development on those allotments will be severely compromised.
Although I accept that, in general terms, the cottage proposed by the applicant is modest, it will nevertheless have an impact which is not acceptable in this sensitive location. It is not as if the applicant is devoid of options, including redevelopment of the existing cottage in conjunction with a more sympathetic development above the escarpment. In the Court's opinion the area adjacent to the river is more capable of accommodating a two storey structure. This would be less likely to detract from the existing aspect of the site from the river having regard to the present development of the boatshed, cottage and paved areas.
The applicant must recognise that the lot pattern in the subdivision and the nature of the topography poses significant constraints to further development on this land.
The generally unsatisfactory nature of the proposal leads to a refusal of the application on the general issues of height, size and inadequate landscaping arising, basically, from an attempted overdevelopment.
This response takes into account the aims and objectives of the various planning controls which are applicable to the site.
The council contends that the proposal does not provide for vehicular access other than over Lot 18 DP 839827 which is classified as community land under the Local Government Act 1993 and, as there has been no plan of management prepared which would permit vehicular access across that land, such a use would be contrary to the preservation of that land. The Court expects that ultimately the council will address and resolve the issue of the status of this land. In the meantime, having regard to the conclusion already reached in respect of this development, it is not necessary to determine whether the applicant is entitled to rely upon continuing access across Lot 18. The fact is, of course, that Lot 18 has been made and formed as a road and, although its status as a public road may be in doubt, it nevertheless serves as a road used by the public. The council recognises the importance of Lot 18 as providing access for the purpose of fire control and accordingly there is a reasonable expectation that, in practical terms, it will remain available to provide vehicular access to Lot 131A.
Finally the Court is not able, from the evidence available to it, to properly determine the status of the sandstone retaining wall within the foreshore building line. The most liberal approach would be to treat it as landscaping but a final determination in this respect is not open, at this stage. There is no expectation that the wall will be removed, at all. The purpose of the wall has not been explained although the maintenance of the boatshed and the adjoining recreation areas appears to be dependant upon it for support and protection against riparian erosion. Ultimately this issue may not prove decisive but until it has been properly addressed, the Court is not able to resolve it. The applicant's expert paid regard only to the boatshed in the context of cl 21.
In all of the circumstances, and for the reasons outlined, the Court has decided that the application should be refused. However, having regard to the general nature of development that has occurred within the subdivision and the unusual depth of the allotments, this decision must not be taken as a determination that no further development can occur. It is just that more care and attention should be paid to the sensitivity of the site. The present application pays scant regard in this respect by seeking only to take full advantage for the proponent.
ORDERS
The formal orders of the Court are:-
1. Appeal dismissed.
2. Development application for a dual occupancy on Lot 87 DP 5989, known as 209 Prince Edward Park Road, Woronora is determined by refusal of consent.
3. The exhibits may be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 11 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGEMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT
ASSOCIATE