Archiworks Architects Pty Limited v Sutherland Shire Council
[2004] NSWLEC 392
•07/15/2004
Land and Environment Court
of New South Wales
CITATION: Archiworks Architects Pty Limited v Sutherland Shire Council [2004] NSWLEC 392 PARTIES: APPLICANT:
Archiworks Architects Pty Limited
RESPONDENT:
APPLICANT:
Archiworks Architects Pty Limited
RESPONDENT:
Sutherland Shire CouncilFILE NUMBER(S): 10434 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Height - bulk and scale - Privacy
StreetscapeLEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000 - (SSLEP)Development Control Plan for Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones - Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: Meriton v Sydney City Council [2004] NSWLEC 313 - Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, DATES OF HEARING: 15/07/2004 EX TEMPORE
JUDGMENT DATE :07/15/2004 LEGAL REPRESENTATIVES:
APPLICANT:
Mr Minh Van Hoang
SOLICITOR:
N/A
RESPONDENT:
Mr C R Mathieson, solicitor
SOLICITOR:
N/A
JUDGMENT:
Appeal No 10434 of 2004
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
15 July 2004
10434 of 2004 Archiworks Architects Pty Limited v Sutherland Shire Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the decision of Sutherland Shire Council, (the council) to refuse a development application to demolish the existing dwelling on the land and to erect a new dwelling at Lot 72 DP 873237, being No. 9 Gascoyne Place, Illawong, NSW, 2234.
2 I incorporate Exhibit 6, which is a statement of basic facts in the decision, [Note Annexure A and in Annexure B the issues].
3 Nearby residents gave oral evidence at the s 34 conference, which was held on site. Residents present were:
· Mrs K Dickman, resident of No 14 Gascoyne Place, Illawong;
· Mr D Dickman, resident of No 14 Gascoyne Place, Illawong;
· Mr S Thomson, resident of No 4 Gascoyne Place, Illawong;
· Mrs M Uzelal, resident of No 12 Gascoyne Place, Illawong;
· Mr I Uzelal, resident of No 12 Gascoyne Place, Illawong;
· Mrs J Mitchell, resident of No 6 Gascoyne Place, Illawong; and
· Mr L Cvetkovski, resident of No 188A Fowler Road, Illawong.
Height, bulk and scale
4 Mr Hoang architect, for the applicant, agreed that the site is difficult to develop and explained that he has tried to design a development on the steeply sloping site to fit-in. He agreed that numerical compliance is difficult and in some places he has not achieved the 7.2m-wall height or the 9m-ridgeline height and these deficiencies are shown in the plan prepared by the council in Exhibit 10. He also agreed that the erection of a garage at the top is also a difficult design exercise, given the steepness of the site. He asked the Court to look at the ‘total building’ and to assess the bulk and scale in the context of the development as a whole.
5 Mr Mathieson pointed to anomalies in the plans and Mr Hoang generally agreed with these. For instance, on the northern elevation the privacy screens are not shown in the correct locations and some windows that are not shown correctly. The slope of the roof over Bedroom No 2 is not accurately depicted in plan and elevation in the north-eastern sector of the building. There are number of other minor deficiencies concerning the ground lines especially under the proposed garage.
6 The main controls are set out in the Statement of Evidence prepared by Mr G Hand, town planner of the council in Exhibit 7 and in the statement of evidence prepared by Mr M Devlin, senior town planner of the council.
7 The first control of importance is cl 30 - Special Considerations under the Sutherland Shire Local Environmental Plan 2000, (SSLEP) and Mr Devlin maintained that the proposal is unsatisfactory having regard to (b) the effect of the proposed development on the quality of the streetscape and (d) the impact of the proposed development on adjoining properties in terms of size, bulk and height.
8 The next important control under the SSLEP is cl 33 and it was Mr Devlin’s view that the proposal offends the objectives:
(a) the scale, amenity and general character of the area where that character should be preserved and
(b) whether streetscape is characterised by detached 1 and 2 storey residential buildings the proposal should conform with that character.
9 The third major point in the SSLEP is cl 34 relating to height and it was Mr Devlin’s view that the proposal offends objectives:
(a) To achieve a consistence in the scale of buildings;
(b) Minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy and views, particularly in terms of Nos. 8 and 14 Gascoyne Place and 188A Fowler Road and
(c) Relate the building form to the topography of the site and
(d) Buildings are to maintain a maximum two-storey appearance.
10 Mr Mathieson referred to these controls and stressed the need to maintain a two-storey streetscape character in Gascoyne Place and that most of the buildings Gascoyne Place are setback 7.5m from the street alignment. He pointed to the fact that the proposed building, which in part reaches three-storeys in height, exceeds the 7.2m wall height in places and the 9.0m ridge height as shown in Exhibit 10.
11 He also referred to the breach in the ceiling height of up to 2m, over the bedrooms on the north-eastern corner of the proposal and that the ceiling height in the lower level is 3.85m, which he submitted adds to the bulk of the building and there are also large roof voids above the bedroom. He submitted that the height and bulk of the proposal is clearly visible from adjoining properties especially on the north and eastern side and that the garage is not consistent with the 7.2m wall height and inconsistent as well with a 9m-ridge height at in one point.
12 He submitted that the elevated drive is not characteristic with the area and that overall the building will present as a substantial structure clearly visible from various points around the site. He submitted that the proposal would be difficult to landscape within the property boundaries and the building being set down low requires quite substantial landscaping in order to achieve some measure of screening.
13 He submitted that the layout could be modified to minimise impacts on the adjoining properties and he took into account in making that submission that it is a difficult site but it has a site area that is reasonable for development.
14 Especially, along the south-eastern side he submitted that the proposal presents a two-storey wall quite close to the boundary and would be difficult to screen. But given the width of the site, I satisfied that it may be necessary for some parts of a building on the land to be reasonably close to the boundary but it would be ideal if some parts could be setback further especially the upper levels.
15 I agree that the bulk, height and scale of the proposal is excessive and this is made clear in Exhibit 10, which is the drawing prepared by Mr Devlin, and was not contested by Mr Hoang. I refuse the application for this reason.
Privacy
16 Mr Mathieson submitted that there is an impact on the privacy of Nos. 14 Gascoyne Place and 188A Fowler Road and he pointed to the northern elevation which is some 7m to the first floor level above the ground line at that north-eastern corner and to the roof of the building about 7m above the fence of No. 14 Gascoyne Place.
17 I am satisfied that the first floor will be elevated above the garden of No. 14 Gascoyne Place and removed by only a metre from the northern boundary. Not only will the building present as massive quite close to the boundary it is difficult to screen. This is likely to give a perception of a lack of both physical and certainly oral privacy. This is accentuated because that balcony is one of the balconies off the main living area, on the northern side of the building, and one expected to be used quite heavily for entertainment.
18 There are proposed screens on the north and horizontal elements on the east, to reduce privacy impacts. The screens on the north, I accept, would significantly add to the bulk of the building and would physically intrude on the private open space of No. 14 Gascoyne Place. In relation to privacy Mr Mathieson made reference to the principles in the decision of Senior Commissioner Roseth in Meriton v Sydney City Council [2004] NSWLEC 313 paras 45-6.
45. When visual privacy is referred to in the context of residential design, it means the freedom of one dwelling and its private open space from being overlooked by another dwelling and its private open space. Most planning instruments and development control plans acknowledge the need for privacy, but leave it to be assessed qualitatively. Numerical guidelines for the separation of dwellings exist in the Australia-wide guideline, AMCORD; as well is in the NSW-specific Residential Flat Design Code attached to SEPP 65. AMCORD recommends a separation of 9m between habitable rooms. The Residential Flat Design Code recommends increasing separation between buildings, as they get taller. For buildings up to three storeys, it suggests 12m between habitable rooms and balconies, 9m between a habitable and non-habitable room, and 6m between non-habitable rooms. For tall buildings it suggests 24m between habitable rooms, 18m between habitable rooms and non-habitable rooms, and 12m between non-habitable rooms.
46. Generalised numerical guidelines such as above, need to be applied with a great deal of judgment, taking into consideration density, separation, use and design. The following principles may assist:
· The ease with which privacy can be protected is inversely proportional to the density of development. At low-densities there is a reasonable expectation that a dwelling and some of its private open space will remain private. At high-densities it is more difficult to protect privacy.
· Privacy can be achieved by separation. The required distance depends upon density and whether windows are at the same level and directly facing each other. Privacy is hardest to achieve in developments that face each other at the same level. Even in high-density development it is unacceptable to have windows at the same level close to each other. Conversely, in a low-density area, the objective should be to achieve separation between windows that exceed the numerical standards above. (Objectives are, of course, not always achievable.)
· The use of a space determines the importance of its privacy. Within a dwelling, the privacy of living areas, including kitchens, is more important than that of bedrooms. Conversely, overlooking from a living area is more objectionable than overlooking from a bedroom where people tend to spend less waking time.
· Overlooking of neighbours that arises out of poor design is not acceptable. A poor design is demonstrated where an alternative design, that provides the same amenity to the applicant at no additional cost, has a reduced impact on privacy.
· Where the whole or most of a private open space cannot be protected from overlooking, the part adjoining the living area of a dwelling should be given the highest level of protection.
· Apart from adequate separation, the most effective way to protect privacy is by the skewed arrangement of windows and the use of devices such as fixed louvres, high and/or deep sills and planter boxes. The use of obscure glass and privacy screens, while sometimes being the only solution, is less desirable.
· Landscaping should not be relied on as the sole protection against overlooking. While existing dense vegetation within a development is valuable, planting proposed in a landscaping plan should be given little weight.
· In areas undergoing change, the impact on what is likely to be built on adjoining sites, as well as the existing development, should be considered.
19 In that decision it was held that it is a reasonable expectation that private open space of adjoining properties would remain private and poor design is certainly not acceptable. It also is authority that the use of privacy screens is not preferred when other methods can be incorporated to achieve same end.
20 The screens on the east come quite close to the boundary at one point and at the north-eastern corner these would be setback only 500mm from the common boundary with No. 118A Fowler Road. Visual screening by trees is difficult as shown in Exhibit E and there would still be some downward looking potential to the adjoining property at No. 188A Fowler Road.
Access
21 Mr Mathieson submitted that there is legal access from Fowler Road. He also submitted that when the council approved the subdivision, this vehicular access was shown on the plans as being the main access to the property. He submitted that an adequate turning area has been provided within the land and this would enable vehicles to enter and leave along the site’s panhandle in the forward direction. However, should this prove to be difficult for the occupants of the dwelling, this turning area could be increased in area to facilitate turning movements.
22 Mr Mathieson submitted, and I accept the supporting evidence, that there is sufficient area for a three-point turn and for vehicles to enter and leave the site in a forward direction. I also accept the evidence that no safety issues would arise as the sightlines of drivers entering onto Fowler Road are good and the width of the road at that point has been increased by providing a slip-lane, which is very unusual in residential areas. As a result, main through traffic is well visible to drivers leaving the site in a forward direction. Mr Hoang accepted that for drivers leaving in a forward direction there would be no problem with sightlines.
Access from Gascoyne Place to the proposed garage
23 The height limits seem to be exceeded as a result of the applicant’s desire to obtain vehicular access to and from Gascoyne Place. The garage is included above the proposed building and the entire roof of the garage exceeds the 7.2m wall height and ridge itself exceeds the 9 m height limit for at least two-thirds of its length.
SEPP1 objection
24 The applicant in a SEPP1 objection sought dispensation for height in respect of one isolated position. But as can be seen in Exhibit 10 the height has been exceeded along the eastern side and above the garage. So in terms of the prescription laid down in Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, 6 April 2001, paras 22 – 26, Mr Mathieson submitted that the applicant’s SEPP1 objection should not be upheld as the applicant failed to demonstrate that compliance with the standard is unreasonable and unnecessary in the circumstance of the case.
25 I accept that submission, and I consider that it would be possible to erect a building, certainly, that would be more in compliance with the height limits set by the council and if not completely so. The areas of non-compliance could be thus substantially reduced.
26 Mr Hoang raised objections to some of the submissions made by Mr Mathieson but none of those objections persuades me that I should do otherwise than refuse the application.
27 My orders are:
- 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.
2. Development application No. 03/1980 lodged with the respondent council on 18 November 2003 to demolish the existing dwellings and to erect a new dwelling at Lot 72, DP 873237, being No. 9 Gascoyne Place, Illawong, NSW, 2234, is refused consent.
3. The exhibits are retained.
S J Watts
Commissioner of the Court
rjs
Appeal No 10434 of 2004
Annexure A
STATEMENT OF BASIC FACTS
9 Gascoyne Place, Illawong
Prepared by
Greg Hand
Town Planner, Legal Services Department
Sutherland Shire Council
May 2004
1. The proposal
The application is for demolition of an existing dwelling house and construction of a new dwelling house. The dwelling comprises:
· Basement – 3 bedrooms, 2 studies and 2 balconies.
· Ground floor – living, dining and family rooms, kitchen laundry and 3 balconies.
· First floor – double garage.
Vehicular access to the site is currently available over an access handle off Fowler Road. The new dwelling will have vehicular access off Gascoyne Place by an elevated bridge structure due to the difference in ground levels along that particular frontage.
The proposed dwelling observes a 1 metre building line [to the point of the balcony but generally between 5m and 7m] to Gascoyne Place.
2. The site
The development site is known as Lot 72 Deposited Plan 873237, being No. 9 Gascoyne Place, Illawong.
The land is “battle-axe” in shape with access to and from Fowler Road by an access handle and a right of carriageway and a frontage of 42.04 metres to Gascoyne Place. The depth of the site, measured from Gascoyne Place, is 22 metres. It contains an area of 1,018 square metres.
The site contains a freestanding 2-storey dwelling house with vehicular access off Fowler Road.
There is a level difference across the site, from north/west to south east of about 8 metres and the site is about 4 metres below the level of Gascoyne Place. There are a number of trees and shrubs around the northern, southern and western site boundaries.
a. The locality
The subject site is within a residential area characterised by detached dwellings. The distinctive visual characteristic of the locality is the open landscaped streetscene.
b. The statutory controls
The applicable statutory planning instruments are:
(a) Sutherland Shire Local Environmental Plan 2000
The site is zoned 2(a1) Residential and it is within a Foreshore Scenic Protection Area.
The objective of the 2(a1) zone is
A residential environment:
a where the scale, amenity and general character of the area is preserved, and
b where the streetscape is characterised by detached 1 and 2 storey residential buildings, and
c where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, town house or villa house developments, and
d where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity.
Development that requires development consent includes
Dwelling houses,
Demolition not included in development allowed without development consent.
Clause 19 of SSLEP states:
What is a Foreshore Scenic Protection Area?
(1) The objective of a foreshore scenic protection area is to limit the scale of development and protect the landscape and visual character of foreshore areas of Sutherland Shire.
(2) A foreshore scenic protection area is shown on the maps by hatching. It applies to land within a number of zones next to Bate Bay, Port Hacking, the Georges River and Woronora River.
(3) Buildings in a foreshore scenic protection area are required by the development control tables to have more landscaped area than buildings outside the area.
Clause 30(a) of SSLEP 2000 states:
When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it:
(a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy,
(b) the effect of the proposed development on the quality of the streetscape,
(c) the cumulative impact of successive development on the general character of the neighbourhood,
(d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area,
(e) the retention and enhancement of existing vegetation,
(f) any adverse impact on the natural and built environment,
(g) the location of the proposed development in relation to potential risks, including flooding, bushfire and other hazards,
(h) the impact that the proposed development may have on any public area or waterbody from loss of sunlight, views and visual amenity.
Clause 32 Bushland Considerations in SSLEP 2000 states:
Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on:
(a) the protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna, or
(b) the protection of wildlife corridors and vegetation links with other nearby bushland vegetation, or
(c) the protection of bushland vegetation as a natural stabiliser of the soil surface and the protection of existing landforms such as natural drainage lines, water courses and foreshores, or
(d) the protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape.
Clause 34(2) of SSLEP 2000 sets height limits, ie
· 7.2 metres to any point on the uppermost ceiling
· 9 metres to the highest point of the roof
Clause 35(2) of SSLEP 2000 sets out the maximum floor space ratio for a 2(a1) zone as 0.45:1.
Clause 36(2) of SSLEP 2000 sets out the minimum landscaped area for a 2(a1) zone as 50% of the site area.
(b) The DCP
The Council adopted the Development Control Plan for Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones on 19 March 2001. It came into effect on 27 March 2001.
The purpose of the DCP, in clause 2, is stated to be to provide for energy efficient dwelling houses in the Residential 2(a1) and 2(a2) Residential zones to ensure consistency with other forms of residential development in the Shire.
Clause 9 has objectives and controls for energy efficiency. New dwellings are required to achieve a minimum 3.5 star energy rating using an approved HER tool such as NatHERS.
(c) Draft Sutherland Shire Local Environmental Plan 2004.
The site is affected by the provisions of Draft Sutherland Shire Local Environmental Plan 2004. This Plan zones the site Environmental Housing (Environmentally Sensitive Land).
The Draft Plan covers the whole of the Shire (except for the Kurnell Peninsula) and was originally exhibited from 18 February to 3 May 2003 as Draft Sutherland Shire Local Environmental Plan 2003.
Submissions received during the exhibition period were considered by Council in September 2003 and, following amendments to the draft instrument, a s.65 Certificate was issued by the Department of Infrastructure, Planning and Natural Resources to re-exhibit the Draft LEP. It was again exhibited, this time as Draft Sutherland Shire Local Environmental Plan 2004, from 1 December 2003 to 18 January 2004.
The objectives, development controls and development standards in DSSLEP 2004 generally remain the same as DSSLEP 2003, however the structure and format of the instrument has changed significantly.
Council adopted DSSLEP 2004, with amendments, on 15 March 2004 and a report in accordance with s.68(4) of the EP&A Act was forwarded to the Department of Infrastructure, Planning and Natural Resources on 24 March 2004 for consideration and gazettal.
A dwelling house is “development that requires development consent” in the Environmental Housing (Environmentally Sensitive Land) zone as set out in clause 26.1.4 in the Development Control Tables.
Building height is controlled in clause 8.4 in the same manner as SSLEP 2000.
Floor space ratio controls are in clause 8.5(3). For the subject site the maximum FSR is 358 square metres based on a site area of 908.74 square metres excluding the access handle.
Landscaped area controls are in clause 8.6(3). For the subject site the minimum landscaped area is 415 square metres.
Clause 9.1 deals with matters relating to bush fire risk. The subject site is within “Bush Fire Prone Land – Vegetation Buffer – 100m and 30 m” on Bush Fire Prone Land Map No. 20 accompanying the Draft Plan. Clauses 9.1(3) and (4) contain prerequisite matters for Council to consider before deciding to grant development consent.
Clause 11.3 deals with greenweb considerations. The subject site is noted as being within “Greenweb Support” on Greenweb Map No. 20 accompanying the Draft Plan. Controls for development in Greenweb Areas are contained in clause 11.3(4).
3. Actions of the Council
Chronology
:
· 18 November 2003 - Development application received by the Council
· 20 November 2003 - Council writes to the applicant requesting additional information to enable assessment of the application.
· 2 December 2003 - The applicant submits additional information to the Council as requested.
· 4 December 2003 - Council notifies nearby property owners and invites written comment on the development proposal. Notification period expires on 18 December 2003.
· 15 December 2003 - Council receives a letter of objection from the owner of 8 Gascoyne Place.
· 16 December 2003 - Council receives a letter of objection from the owner of 6 Gascoyne Place.
· 23 December 2003 - Council receives a letter of objection from the owner of 14 Gascoyne Place.
· 28 January 2004 - Council writes to the applicant with a list of deficiencies in the proposal and invites the applicant to withdraw the development application.
· 4 February 2004 - Council receives a letter of advice from NSW Rural Fire Service with conditions should the development application be approved.
· 17 February 2004 - Council receives a letter from the applicant advising that additional information is to be provided in relation to affect on trees.
· 8 March 2004 - Council’s staff determine the development application by refusing to grant consent.
· 8 March 2004 - Notice of development refusal is produced.
· 10 March 2004 - Council notifies objectors of the decision to refuse the development application.
Greg Hand - Town Planner, prepared the above Statement of Basic Facts
T:\JUDGMENTS & ORDERS\2004\10434 of 2004 Watts.doc
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Annexure B
No 10434 of 2004ARCHIWORKS ARCHITECTS P/L
ApplicantSUTHERLAND SHIRE COUNCIL
RespondentSTATEMENT OF ISSUES
Filed for the Respondent
Chris Mathieson
Principal Environmental Lawyer
Sutherland Shire Council
4-20 Eton Street
SUTHERLAND 2232
DX 4511 SUTHERLAND
Phone: 9710 0676
Fax: 9710 0671
Ref: CRMThe Respondent contends that the following matters are in issue:
HEIGHT, BULK, SCALE AND SITING
1. The height, bulk, scale and siting of the development are unacceptable having regard to the adverse impacts on the streetscape and adjoining properties, and:
Particulars
Sutherland Shire Local Environmental Plan 2000
i. Clause 33 Objectives of the 2(a)(1) Residential zone – The proposal offends objectives (a) (the scale, amenity and general character of the area is to be preserved) and (b) (where the streetscape is characterised by detached 1 and 2 storey residential buildings).
ii. Clause 34 Height
(a) The proposal offends objectives (a) (achieve consistency in the scale of buildings); (b) (minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy and views) - particularly in terms of numbers 8 and 14 Gascoyne Place and 188A Fowler Road; (c) (relate the building form to the topography of the site), and (d) (buildings are to maintain a maximum 2 storey appearance).
(b) The proposal exceeds the height limit development standards of 7.2m to the underside of the uppermost ceiling and 9.0m to the highest point of the roof (clause 34(2)(a)). No State Environmental Planning Policy No. 1 objection has been provided.
iii. Clause 30 Special considerations – The proposal is unsatisfactory having regard to (b) (the effect of the proposed development on the quality of the streetscape) and (d) (the impact of the proposed development on adjoining properties in terms of size, bulk and height).
Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones Development Control Plan
iv. Clause 11 Building Lines to Streets – The proposal offends objectives (1) (the visual impact of buildings on the street scene is to be minimised), (2) (buildings are to be compatible with and enhance the existing street scene), (3) (impacts on views are to be minimised) and (6) (buildings are to be sited so that gardens can be planted between the building and the street).
v. Clause 11 Building Lines to Streets – Control: A minimum building line of 7.5m applies whereas the proposal is located 2.7m from the boundary.
Building Lines to Streets Development Control Plan
vi. Clause 6 Objectives
- (a) Clause 6.1 Overall Objectives – The proposal offends objectives (a) (minimise visual impact on the street scene), (b) (buildings are to be compatible with the street scene) and (c) (minimise impacts on views).
(b) Clause 6.2 Design Objectives – The proposal offends objectives (a) (structures are to blend into the residential environment and are to be unobtrusive in terms of size, bulk and height), (b) (structures designed and sited to protect the residential amenity of neighbours), (e) (parking which does not dominate the streetscape) and (f) (open form structures are preferred where there is an open street scene).
vii. Clause 7 – The proposed setback of 2.7m breaches the 7.5m building line.
Sutherland Shire Draft Local Environmental Plan 2004
viii. Clause 8.2(2) Residential Development – The proposal offends objectives (c) (to improve the quality of the streetscape) and (f) (to minimise impacts on adjoining properties in terms of size, bulk, height, scale and siting).
ix. Clause 8.4(2) Building Height – The proposal offends objectives (a) (to ensure the scale of development is consistent with the desired scale and character of the street) and (d) (minimise visual impact when viewed from adjoining properties and the street).
x. Clause 8.4(3) Building Height – The proposal exceeds the maximum height of 7.2m to any point on the uppermost ceiling and 9.0m to the highest point on the roof.
xi. Clause 26.1 Environmental Housing (Environmentally Sensitive Land) Zone – The proposal offends objectives (a) (development is to compliment the natural landscape setting) and (b) (development is to be of a character, scale and nature that compliments the natural surroundings).
IMPACTS ON NEIGHBOURS
2. The proposal will have an unacceptable impact on the privacy and views of nearby properties.
i. Number 14 Gascoyne Place – loss of privacy in view of the proposed boundary setbacks and the design and placement of the windows and balconies on the northern side of the dwelling;
ii. Number 188A Fowler Road – loss of privacy in view of the design and placement of windows and balconies on the eastern side of the dwelling; and
iii. Number 8 Gascoyne Place - loss of views.
Sutherland Shire Local Environmental Plan 2000
iv. The proposal does not satisfy special consideration (a) in clause 30 (impacts on adjoining buildings from loss of views and privacy)
Sutherland Shire Draft Local Environmental Plan 2004
v. Clause 8.2(2) Residential Development – The proposal offends objective (b) (minimise the impacts on adjoining development in terms of overlooking, views and privacy).
vi. Clause 8.4(2) Building Height – The proposal offends objective (c) (minimise impacts on adjoining or nearby properties in terms of view loss and loss of privacy).
VEHICLE ACCESS
3. Whether the proposed suspended driveway over the road reserve and garage location should be approved, particularly having regard to:
Particulars
i. The visual impact on the streetscape;
ii. The likely impact on existing and future services in the road reserve;
iii. The fact that vehicle and pedestrian access is already available from Fowler Road;
iv. Whether it is appropriate to grant land owners consent to the development application in respect of that part of the suspended driveway to be located above the road reserve owned by Sutherland Shire Council.
Sutherland Shire Local Environmental Plan 2000
v. Clause 30 Special considerations – The proposal is unsatisfactory having regard to (f) (adverse impact on the natural and built environment).
Dwelling Houses in 2(a1), 2(a2) and 2(b) Residential Zones Development Control Plan
vi. Clause 10 Car Parking – The proposal offends objective (2) which requires garages to be designed and located to compliment the dwelling and to minimise the impact on the natural landscape and views from adjoining properties.
vii. Clause 10 Car Parking – The proposal offends Control 3, which provides that the minimum setback for a garage is 7.5m, as the proposed setback is 2.7m.
viii. Clause 11 Building Lines to Streets – The proposal offends objective (5) which requires suitable access for the parking of vehicles to be provided or maintained.
Building Lines to Streets Development Control Plan
ix. Clause 6 Objectives
- (a) Clause 6.1 Overall Objectives – The proposal offends objectives (a) (minimise visual impact on the street scene) and (b) (buildings are to be compatible with the street scene).
(b) Clause 6.2 Design Objectives – The proposal offends objectives (a) (structures are to blend into the residential environment and are to be unobtrusive in terms of size, bulk and height), (e) (parking which does not dominate the streetscape) and (f) (open form structures are preferred where there is an open street scene).
DESIGN
4. Whether the design of the dwelling is appropriate given the absence of ground level private open space off living areas and the excessive reliance upon balconies as private open space.
OBJECTIONS
5. Matters raised by objectors.
Christopher Robert Mathieson
Solicitor for the Respondent
Dated: 19 May 2004
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