Artsands Pty Limited v Great Lakes Council

[2005] NSWLEC 462

Land and Environment Court

of New South Wales

CITATION:

Artsands Pty Limited v Great Lakes Council [2005] NSWLEC 462

PARTIES:

APPLICANT
Artsands Pty Limited

RESPONDENT
Great Lakes Council

FILE NUMBER(S):

10215 of 2005

CORAM:

Moore C

KEY ISSUES:

Development Application :-
Impact on neighbours
Bulk

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

17 August 2005

EX TEMPORE JUDGMENT DATE:

08/17/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green, solicitor
Pike Pike and Fenwick

RESPONDENT
Mr P Rees, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

17 August 2005

05/10215 Artsands Pty Limited v Great Lakes Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but will be available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 Commissioner: This is an Appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979, against the refusal by Great Lakes Council (the council) on 11 June 2004 of a proposed duplex development at 21A Coast Avenue, Boomerang Beach (the site).

2 I have had the opportunity of inspecting the site today in company with the legal representatives of parties and of viewing the proposal with the assistance of a height poles marked to delineate the eastern presentation of the proposal and to delineate the northern presentation of the proposed additional garaging.

3 I have also had the opportunity of inspecting the proposed development from adjacent properties which are potentially impacted, to varying degrees, as a result of the development.

4 During the course of that inspection, I have had the opportunity of hearing evidence from a number of the residents who put to me matters of concern relating to details of the proposal and matters of absolute opposition to the proposal.

5 Prior to adjourning to enable Mr Green, solicitor for the applicant, to get some instructions on a number of matters of detail, I indicated my prima facie view that, although the proposal was broadly capable of approval, it ought not be approved in its present form.

6 It was with respect to those matters of concern that Mr Green sought additional instructions and I have been informed of the outcome of them. They, for a very large part, result in a series of amendments being proposed to the plans which amendments will address a number (but not all) of the detail concerns of the surrounding residents.

7 I have had the opportunity of inspecting the proposal from the sites of a number of those surrounding residents being:

• Mr McNicol at 23 Coast Avenue;
• Mr Thompson at 23A Coast Avenue; and
• Mr and Mrs Ferris whose property comprises 19 Coast Avenue, and 3 Kula Close, their residence being located on the latter of those two allotments.

8 I have also considered the evidence given by Mr Fletcher, the Court appointed planning expert, who has concluded that, with a number of minor amendments that are, in fact, less than the amendments to which the applicant has agreed, the proposal was acceptable – both in its immediate impact on the surrounding residents and in its broader visual impact.

9 During my approach to the site, I had the opportunity of seeing that there are other prominent buildings located on the ridgelines of the dune system in the vicinity of the property.

10 Although, prominent in the immediate local landscape such prominence will not be out of character with the buildings that are otherwise in the Bluey’s Beach – Boomerang Beach precinct.

11 There are two significant amendments agreed to by the applicant to the upper level of the development – namely:

• lowering of the height of the roof by some 200 mm – the details of which are to be remained the determined by the applicant's architect; and
• shortening of the dwelling by 1.2 m from the west and 1 m or thereabouts from the east.

12 As a consequence, I am satisfied that the visual bulk of the upper level will be acceptable in the broader context and that the development is therefore capable of being given approval subject to the full range of amendments that have been proposed.

13 I am satisfied that the amendments that relate to Mr McNicol's property and to a lesser extent to the Thompson properly will be assisted by the ability to retain additional vegetation as a consequence of the greater eastern setback at the upper level and that subject to the final detail of that being worked out there is no reason of immediate bulk presentation of a properties to require the application to be refused.

14 A number of matters of detail were concerns expressed by Mr Collins who is the neighbour immediately to the north at 48 Boomerang Drive. These have been resolved as the consequence of the amendments that have agreed to by the applicant.

15 With respect to privacy for the McNicol residence, amendments to the line to the eastern edge of the upper level deck (removing it from a protrusion that addressed the McNicol residence to one which will now recede from it) coupled with a 1.8 m privacy screen will address that concern appropriately. There will also be some landscaping in the area on the site adjacent to the McNicol deck to be resolved between the applicant and the council at a later time.

16 The only matter, in effect, which remains for me to determine after the amendments was the question of whether or not there should the some protection for Mr and Mrs Ferris from overlooking from the proposed new deck.

17 I have the evidence of Mr Fletcher that is not necessary based on the separation between all parts of their property and the site – even on the assumption that the allotment known as 19 Coast Avenue will be developed.

18 The separation between the balcony and the Ferris allotments is acceptable on any rational planning standard and would not warrant the imposition of any restrictions on the balustrading on the balcony.

19 I am, however, not satisfied that that is the position with respect to the property known as 21 Coast Avenue and that the possible impact of overlooking by persons in a seated position on the proposed deck of that property.

20 I note that Mr Fletcher's expressed opinion is that has some concern concerning this but it is not sufficient to warrant the requirement of amendment to the balustrading.

21 However, I am of the view that, on balance, the scales tip moderately in the other direction due to the nature of the height and prominence of the proposed deck.

22 The extensive dimensions of the deck and its north facing aspect means that it is likely to be a highly trafficked and utilized area – particularly during the summer months which would be the months during which the occupants of any redeveloped property on 21 Coast Avenue would likely to be enjoying their private open space.

23 As a consequence, given that there is an element of uncertainty as to the overall height of the proposal and there may be questions as to the appropriateness of any exceedance of the overall height controls in the Development Control Plan, I am satisfied, on a very fine balance, that it would not be unreasonable to grant the consent but requiring the erection of a translucent glass element to the balustrading to a height of 600 mm above the deck.

24 This does not need to be for the entirety of the 600 mm as it could be a 475 mm panel to comply with BCA gaps with stainless-steel wiring or some other form of treatment above that.

25 That would have some incidental benefit in addressing the concerns expressed by Mr and Mrs Ferris, but it would not in any way be justified by my consideration of those concerns – those concerns, as ea

26 I therefore give the following directions:

1. The applicant is to file agreed amended plans by 7 September;
2. The respondent is to file agreed amended conditions by 7 September;
3. Callover before the Registrar on 13 September;
4. If (1) and (2) are complied with, I will make orders in Chambers and vacate the callover;
5. Liberty to relist before me at 9am on 2 days notice; and
6. The exhibits, other than Exhibits A, B and 10, are returned.
Tim Moore
Commissioner of the Court