Adam Sturt v Shoalhaven City Council

[2023] NSWLEC 1809

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Adam Sturt v Shoalhaven City Council [2023] NSWLEC 1809

Hearing dates:

23 February 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA22/1985 is modified in the terms in Annexure A.

(3) Development Consent No. DA22/1985 as modified by the Court is Annexure B.

(4) The exhibits are returned with the exception of Ex 1, 8, C and D, which are retained.

Catchwords:

MODIFICATION APPLICATION – two storey dwelling – breach of building height control – visual massing – foreshore location concerns – neighbour objections

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 113

Shoalhaven Local Environmental Plan 2014

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11

Texts Cited:

Shoalhaven Development Control Plan 2014, Ch G6, s 5.2.2 and Ch G12

Category:

Principal judgment

Parties:

Adam Sturt (First Applicant)
Sarah Sturt (Second Applicant)

Shoalhaven City Council (Respondent)

Representation:

Counsel:
J Smith (Applicants)
R O’Gorman-Hughes (Respondent)

Solicitors:
Foundation Law Group (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/216058

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings concern a proposed modification to a recently granted development consent on land in Huskisson.

Background

2. On 28 February 2023, Development Application No DA22/1985 for the demolition of an existing dwelling and construction of a two-storey dwelling house was determined by the grant of consent by Shoalhaven City Council (Council) with respect to land described as Lot 1 in Deposited Plan 30032, with a street address of 92 Burrill Street, Huskisson (site).

3. On 17 June 2023, a Modification Application (MA) was made under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act). Council assigned a reference number of DS23/1113 to this MA. An intention of MA DS23/1113 was to modify Condition 1 of the consent to DA22/1985. The essential intention was to refer to a new set of plans. According to Council’s statement of facts and contentions filed on 3 August 2023, the new plans would effect the following changes to particulars approved with DA22/1985:

• Increase the height of the building by 0.9m to a maximum building height of 8.314m.

• Include an external staircase on the north-eastern end of the building with a nil setback to the northern (side) boundary, extending from the finished ground level up to the ground floor.

• Provide for installation of a door at the bottom of the proposed stairs.

• Enlarge a proposed sun bed to the north of the pool such that it would have a nil setback to the northern boundary.

4. On 4 July 2023, Council issued a Notice of Determination refusing MA DS23/1113. In turn, the applicants have commenced Class 1 proceedings in the Court with respect to this determination.

Proceedings

5. The Court initially arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 February 2024, and at which I presided. I can note here that the proceedings commenced with a site inspection, at which I had the opportunity to hear from a number of objectors and to gain an appreciation of the site context.

6. The parties were unable to reach an agreement during conciliation. The proceedings moved to a contested hearing on 23 February 2024.

Amendments to modification application are approved

7. Soon after commencement of the hearing, the applicant’s sought to amend the particulars to MA DS23/1113. This was agreed to by Council under s 113(1) of the Environmental Planning and Assessment Regulation 2021. The particulars of the amendment include the following:

• Building height increase over that approved with DA22/1985 would be reduced to 0.443m, providing for a maximum building height of 7.943m.

• Sunbed and external staircase on the north-eastern end of the building would be realigned to be setback a minimum of 1.1m from the northern boundary.

• General increase in northern boundary setback of 600mm to a minimum of 1.6m and certain associated landscaping to effect visual privacy. There would be a directly associated reduction in southern boundary setback.

• The roof cover over the eastern balcony would be removed, reducing the extent to which the built form over the roof would define building height.

Other contextual information

8. The site is an 837m² regular shaped allotment falling within a small grouping of residential blocks with frontage to Burrill Street. The rear boundary of this residential grouping faces the foreshore of Moona Moona Creek and looks out towards Jervis Bay. There is a quite popular walkway which runs along reserve land to the rear of the site.

9. The site is zoned R2 Low Density Residential under Shoalhaven Local Environmental Plan 2014 (SLEP). There is no dispute the proposal is permissible in the zone. The R2 zoned area in the site vicinity is mostly single storey at present. This R2 zoning extends to the north-west of the site but land to the north-east and south-west of the site is zoned MU1 Mixed Use.

10. A maximum building height of 7.5m applies to the site under SLEP, which would be breached with the proposed modifications. It is noteworthy that the R2 zoned area to the north-west of the site has a maximum building height of 8.5m. Council argued this differential was important in recognising the special visual character-related issues surrounding the site and other properties in this small enclave near the water. The maximum building height control is 13m for the nearby MU1 zoned land.

11. The site falls within a flood planning area under SLEP. The site is mapped as being both coastal environmental area and coastal use area under State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards).

12. Shoalhaven Development Control Plan 2014 (SDCP) applies. Council refers to provisions in both Chs G12 (relating to dwelling houses) and G6 (relating to Coastal Management Areas).

Issues

13. The central and particular merits issue in dispute for the evaluation of this modification application relates to the proposed building height and massing. The proposed modifications would bring about a building that exceeds the SLEP building height controls (by up to some 0.64m). Here I note and accept the position taken by the experts that other amenity related concerns are now reasonably addressed. The privacy concern has been addressed through the additional side setback and the proposal for screening landscaping within a dedicated area of about 1m width along the northern boundary (Ex C Drawing C1.1-1). This (additional setback and landscaping) particularly addresses concerns relating to next door privacy given the proposed trafficable areas around the proposed pool, including the external staircase and sunbed area (proposed Condition 58B addresses privacy landscaping and seeks the approval of Council prior to finalisation). It seemed to me that these changes would be responsive to a key objector concern which queried why the proposed building, and its outdoor trafficable areas, need to be so close to the northern boundary and exposed to the northern neighbour, when there is no residential neighbour to the southern boundary.

14. But when considering the building height and massing concern, the perspectives one needs to adopt are at least twofold. At one level there are visual massing concerns that are held by the neighbours. Here I particularly note the objecting submissions of the two nearest neighbours, who are located to the north of the site’s northern boundary. While I return to this later, generally, I was not convinced that such concerns were persuasive to my evaluation of the proposal. There are two main reasons. The first is the form of the building to the north, and the considerable physical articulation which breaks up the visual massing. The second involves the amendments to the proposal which do two things: (1) increase the northern boundary setback and (2) provide for landscaping which can provide some filtering of views into the site from the north.

15. At another level, there is the wider public interest and the fact of the public reserve located immediately to the east and backing onto the site and which opens up to a number of congregation spaces overlooking Moona Moona Creek and further onwards to Jervis Bay. A public walkway running north south along this reserve is close to the site’s western boundary. So, of concern is whether the building height and massing may affect people otherwise enjoying these public spaces. Here the applicable provisions of SEPP Resilience and Hazards arise. I quote selectively from it as follows:

2.10   Development on land within the coastal environment area

(1)  Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

…

(e)  existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

…

(2)  Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a)  the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact

2.11 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

…

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

…, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

16. The rest of the judgement concentrates on this concern.

Council’s contention

17. Council argues that the proposed modification would bring about significant height, bulk and scale problems. As put in Council’s amended statement of facts and contentions, provided to the Court on 23 February 2024 (Ex 1, Pt B.1, 2.c):

i.    The height, bulk and scale of the Proposed Development is not compatible with the existing and desired future character of the foreshore area and will:

1. have a negative visual impact and exaggerate the built form in a way that is not compatible with the locality and foreshore environment.

2. have adverse impacts on the foreshore area and streetscape.

3. result in adverse impacts impact on the amenity of the public domain.

ii.   The proposed modified building height and building envelope will add to the visual bulk of the building when viewed from the public foreshore reserve to the east and south. The development does not design higher or bulkier components of the building so that they are out of direct view and sympathetic to the foreshore environment. The Proposed Development increases building height above that originally approved and above that envisaged in the provisions of the LEP and DCP along the elevation which is most clearly observed from the public foreshore reserve and adjoining Site.

iii.   The provisions of the DCP read together with the LEP in relation to height bulk and scale gives effect to the orderly development of land in foreshore areas by reducing building height and building bulk as a transition where the built environment approaches foreshore areas. The proposed development does not achieve this transition and is not sympathetic the existing and future character of the foreshore area.

iv.   The proposed building height and building envelope encroachments will add to the visual bulk of the building when viewed from the public foreshore reserve to the east. The bulk and scale of the Proposed Development is not compatible with adjoining development or the foreshore area and streetscape character.

V.   The approval of proposed height, bulk and scale in this location would set an undesirable precedent within the locality and result in unacceptable built

Considering evidence and submissions

18. Expert town planning evidence was provided by J Mead for the applicant and P Woodworth for Council. Here I summarise their opinions in regard to three topics, which for me contextualise the building height and massing concern.

Local area planning context

19. In support of the applicant, there was reference to the surrounding zonings and considerably higher buildings which were already constructed or permissible to the site’s north and south-west within the MU1 zone.

20. Council, on the other hand, highlighted the fine policy difference which SLEP adopts in regard to building height for the immediate site environs, alone. That is to emphasise the distinctly different policy ambitions for the site environs, in its immediate coastal environs setting, when compared to the other residential areas to the north-west. As put by Mr Woodworth (Ex 2 par 25):

This foreshore area like other foreshore areas with the Shoalhaven local government area has been mapped with a 7.5m building height. The step down in building height as properties approach the foreshore creates a transition in the visual bulk of foreshore buildings by reducing building height, bulk and scale, and this is further reinforced by the development controls set out in Chapter G6 [of SDCP].

21. The applicant countered this by reference to the provisions of SDCP which suggest an allowance might be made for variations to building envelope controls when flood planning levels come into play.

Building presentation

22. Mr Woodworth considers the building design as "blocky" in form and suggests that the increased height would exaggerate the bulk and scale of the building (Ex 2 par 30). Mr Woodworth was concerned about the fact that the building massing would be (Ex 2 par 31):

… most observable from the foreshore reserve to the east and south of the site and from 90 Burrill Street to the north of the site. The resultant bulk and scale of the modified development is not consistent with neighbouring development to the north of the site and the development does not locate higher components of the building out of direct view from the foreshore area; rather the design imposes the highest parts of the building in areas most visible from the adjoining foreshore. This is not consistent with performance criteria P5.1 of Chapter G6 of the DCP.

23. This would bring about a negative adverse visual impact for this area of the foreshore and create a precedent for the immediate area (Ex 2 par 32).

24. Mr Mead disagreed with Mr Woodworth’s description of the proposed building (Ex 2 par 58):

…it is my view that the dwelling is sensitively modelled, well articulated and modulated in plan and elevation and that particularly the eastern façade takes on a lightweight and open (predominance of void to solid) appearance

Potential for taking in the proposed building from public viewpoints

25. Mr Woodworth highlighted the observability of the proposal from the foreshore reserve to the south and east of the site, “with a beach, walking/cycle path and grassed areas” (Ex 2 par 27).

26. Mr Mead indicated the limitations to the observability of the proposal from public vantage points with a series of photos and commentary as follows (Ex 2 par 51):

The part of the dwelling, being that above the height limit, will also from many vantage points within the character locality be obscured or concealed by existing vegetation, particular to the south and south-east and south-west. The area of non-compliance will not be viewed from the public domain to the north-west.

27. More broadly, the applicant argued that members of the public enjoying the foreshore area would be disinclined to pay much attention to individual buildings and whether or not a building was half a metre more or less in height. Instead attention would be paid to the natural scenic qualities of the area. It was additional noted that public seating generally faced away from, rather than towards, the Burrill Street residences.

Consideration

Evaluation framework and findings

28. Section 4.55(2) and (3) of the EPA Act establish the evaluation framework for this application, and are reproduced below:

(2) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

…

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

29. I accept the agreed position of the parties that the requirements of s 4.55(2)(a) of the EPA Act are met. With the scale and particulars of the changes proposed, in my view it is clear that development in accordance with MA DS23/1113 would be substantially the same development, both qualitatively and quantitively, as the development for which consent was originally granted with DA22/1985.

30. Similarly, I understand that the notification requirements under s 4.55(2)(b) and (c) have been met. In respect to s 4.55(2)(d), I have given consideration to the objecting submissions, as provided to me by Council and as per the oral submissions made during the site inspection.

31. Mindful of s 4.55(3) I have given consideration to the regular evaluation criteria for development application, as put at s 4.15(1) of the EPA Act. This includes the consideration of the fact that the proposal breaches the height of buildings standard under cl 4.3 of SLEP. Mindful of North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468 at 481 D; [1998] NSWSC 163, and subsequent decisions, there is no requirement for a jurisdictional finding, under cl 4.6 of SLEP, in regard to this.

29. I have also given consideration to the provision of SEPP Resilience and Hazards as referenced above, at [1].

30. When these provisions and the evidence of the planning experts are considered, I am generally supportive of the applicant’s case. There are three key points to this.

31. First is in relation to the SDCP provisions which give direct consideration to the topic of flood planning levels and variations of building envelope controls. It is SDCP s 5.2.2 of Ch    G6 at A5.3 which provides that:

… [variations to building envelope controls] will be considered where minimum floor levels are required in flood prone land. Where such levels may necessitate two storey construction or elevated construction, consideration will still be required to be given to issues of privacy, overshadowing, and visual impact.

35. The requirement for adoption of a flood planning level has had an effect on building design in this instance, it seems to me. The amended plans show a flood planning level of RL 2.90 and infer a "required" minimum height above natural ground level of about 500mm at the western (front) entrance (Ex C Drawing C2.3-1). That is to say, were the building dropped to near natural ground level at the front entrance (something I understand not to be available due to the flood planning level requirements), then there would be compliance or near compliance.

36. Second, is in relation to neighbour amenity concerns. For me, the amendments which have occurred with the proposal as a consequence of the conciliation process are significant in regard to this topic. It was a direct concern expressed by the immediate neighbour that the massing of the building could readily be shifted somewhat to the south, as a means of general cushioning of impacts to the neighbour to the north. This has occurred with the amendments. The physical shifting of the built form to the south and the improved landscaping along the boundary are important in ensuring the proposal would not have an unreasonable effect on neighbours.

37. Third, is in relation to the wider public appreciation of the new building, as now proposed. I do need to note that I would not be a modest addition in its setting. But the variation in this massing and good levels of articulation, to the west and north particularly, are positive design features relating to the visual presence of the building. More generally, I accept the arguments of the applicant that the gaze of members of the public would not be drawn so much to the housing in the Burrell Street Moona Moona Creek residential enclave, when there is much more to be seen.

38. Council pointed to the need, under s 4.55(3) of the EPA Act, in relation to matters such as this, for consideration to be given to the reasons given by the consent authority for the grant of the consent that is sought to be modified. Council indicated that, as originally put, DA22/1985 sought consent for a maximum building height of 8.1m and a sunbed in the north-east area of the site with nil setback to the northern boundary. Council indicated its concerns with these aspects to the applicant and DA22/1985 was subsequently amended to bring the building height into compliance and to offset the sunbed area to about 1m from the boundary (Ex 4 Tab 2). I believe Council was indicating here that "the reasons" it approved DA22/1985, as was made clear to the applicant, were fundamentally related to aspects which were now being sought to be changed with MA DS23/1113. I have given consideration to this but do not find the concern as overly persuasive. The more direct evaluative considerations warrant greater attention.

Conclusion

39. The key issue in this case is the breach of the applicable building height control which is front and centre in regard to the central intention of MA DS23/1113. I do accept the view of the Council, that there needs to be sufficient environmental planning grounds to approve a development which involves a breach of this kind. For me the grounds are available in this instance. I can say that I was not persuaded by the suggestion that all of the building height was required to meet unexpected construction concerns. The planning grounds of relevance principally relate to the revised treatment of the neighbour interface. The increased building setback to the northern boundary, along with landscaping as provided for in the draft conditions offered by the parties, mean the modifications as proposed will now have an improved relationship with neighbouring property, than is the case under the current consent. This, along with my view that there are policy openings for the breach, relating to the site’s flood planning level constraints, and the acceptability of the built form in the wider setting, mean a positive determination for the applicant is warranted.

Orders

40. The Court orders:

1. The appeal is upheld.

2. Development Consent No. DA22/1985 is modified in the terms in Annexure A.

3. Development Consent No. DA22/1985 as modified by the Court is Annexure B.

4. The exhibits are returned with the exception of Ex 1, 8, C and D, which are retained.

Peter Walsh

Commissioner of the Court

Annexure A

Annexure B

**********

Amendments

19 April 2024 - Amendment to the coversheet

Decision last updated: 19 April 2024