Brent v Newcastle City Council
[2011] NSWLEC 1130
•24 May 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Brent v Newcastle City Council [2011] NSWLEC 1130 Hearing dates: 28-29 April 2011 Decision date: 24 May 2011 Jurisdiction: Class 1 Before: Morris C Decision: 1.The application is dismissed.
2.The exhibits, other than Exhibits 1, A and C are returned
Catchwords: Development Application; Additions to Dwelling; s 88B Instrument; Compliance with the council's planning controls; Views. Legislation Cited: Conveyancing Act 1919; Environmental Planning & Assessment Act 1979; Newcastle Local Environmental Plan 2003; State Environmental Planning Policy No. 71 - Coastal Protection. Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140. Texts Cited: Draft Newcastle Local Environmental Plan; Newcastle Development Control Plan 2005. Category: Principal judgment Parties: J A Brent (Applicant)
Newcastle City Council (Respondent)Representation: Mr C Ireland (Applicant)
Ms A Pearman (Respondent)
O'Sullivan & Saddington (Applicant)
Mr J Marshall (Respondent)
File Number(s): 10933 of 2010
Judgment
This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning & Assessment Act 1979 against the refusal by Newcastle City Council (the council) of Development Application No. 10/0072 (the application) which proposed the addition of a bedroom, bathroom and media room to an existing dwelling house and the release of a s88B instrument to allow the resulting additions and alterations to be constructed.
The main contentions in the matter are the impact of the development on the escarpment and ridgeline, the adjoining neighbours' view and the development being contrary to a s 88B instrument that applies to the site.
The site and its context
The site is known as No. 38A Lloyd Street, Merewether (the site) and is an irregular shaped, battle-axe allotment located on the southern side and at the eastern end of the street. The site falls steeply from the rear (south) towards Lloyd Street. A public reserve is located to the south of the site and extends along the rear and side boundary of the adjoining residential allotment to the east of the site and further north along the coast. The rear property boundary approximates the ridgeline that defines the southern extent of the suburb of Merewether. The Pacific Ocean is to the immediate east of this reserve and Merewether Baths and Beach is to the north/north east.
Development in the vicinity of the site comprises primarily single dwelling houses ranging in height from one to two storeys designed to follow the slope of the land and accordingly, many present as large, multi-level dwellings when viewed from the north. A multi-unit housing development has recently been constructed on the lot to the immediate west of the site and contains three dwellings. It is apparent that the area is undergoing redevelopment with new, larger dwellings being constructed and older style cottages being refurbished and extended.
The site and the adjacent properties enjoy panoramic views of the Pacific Ocean, Merewether Beach and the coastline northwards towards Fingal Bay together with district views of the Newcastle area.
Background and the proposal
The site was created in a two-lot subdivision approved by the council in 1996, consent No.S0126/95. This subdivision created Lot 861, which contains the dwelling house known as No. 38 Lloyd Street and the site, Lot 862 (No. 38A), a battle-axe lot that is subject to an easement for drainage and enjoys a right-of-way and easement for services over part of Lot 861. A condition of the consent was applied to restrict the height on any development on the site as follows:
A restriction as to user being provided on the final plan of subdivision and the required 88b instrument ensuring any future building on proposed Lot 2 does not exceed a building envelope height greater than 62 metres AHD and extending a vertical distance of 7.2 metres from natural ground level to the ceiling of the uppermost floor.
Consent has been granted by the council (DA06/1839) to construct a roofed deck above the existing garage. That garage is attached to, at a lower level than and to the north of the dwelling house on the site. That works authorised by that consent have not commenced and, unless that occurs, the consent would lapse on 16 February 2012.
The site contains a part one and part two storey, four bedroom dwelling with attached double garage. The dwelling is built as two pavilions connected by a glass walled link. The ridge of the front portion of the dwelling is constructed to RL62.1 and the rear portion to RL61.8.
The application seeks to remove the existing hipped roof above the garage and develop this area as a roof deck. To address privacy to the adjacent property, a 1.6m high privacy screen is proposed to be erected along the western edge of the deck and return along the south to meet the wall of the existing dwelling. The plans lodged with the application show that screen being erected 0.197m from the western property boundary. Unlike the works authorised by consent to DA 06/1839, roofing of the deck is not proposed.
It is also proposed to add a third level to the front pavilion of the dwelling. The additions would comprise a fifth bedroom, retreat, walk-in wardrobe and ensuite and would sit above the northern, southern and eastern walls of the existing dwelling and be set in from the western boundary to provide a greater setback of 2.869m. The first floor level is setback 1.223m from that boundary and the lower level approximately 1.8m. External dimensions of the proposed addition are 7.63m x 9.46m resulting in an area of 72.18 sqm. Ridge height of the proposed addition would be RL64.66. This exceeds the height restriction imposed by the consent by 2.66m. The application includes a request to release the restriction as to user that was created pursuant to the provisions of s 88 of the Conveyancing Act 1919 to allow the additions to be constructed .
The council refused consent to the application on 12 October 2010 for the following reasons:
(a) The proposed release of the Section 88B instrument
(b) Visual impact on the escarpment and ridgeline
(c) Impact on neighbours' view
(d) Non-compliance with building envelope.
despite the application having been recommended for approval by its officers.
The planning controls
The site is zoned Residential 2(a) pursuant to the provisions of Newcastle Local Environmental Plan 2003 (the LEP). Relevant zone objectives are:
(a) To accommodate a diversity of housing forms that respect the amenity, heritage and character of surrounding development and the quality of the environment....
(c) To require the retention of existing housing stock where appropriate, having regard to ESD principles.
Clause 18 of the LEP applies to covenants and states:
(1)Any covenant, agreement or like instrument, which is contrary to development that is permitted and for which consent has been granted under this plan, does not apply to the extent to which the covenant, agreement or instrument would prevent or restrict the development from being undertaken in accordance with the consent.
(2)Subclause (1) does not apply to a registered instrument that confers a benefit on a public authority.
(3)The Governor approved of subclauses (1) and (2) pursuant to section 28 of the Act prior to the making of this plan.
The council has exhibited the draft Newcastle Local Environmental Plan (the draft LEP). The parties agree that there is no certainty that this plan will be made as exhibited however, acknowledge that if it was made, the height map would limit development on the site to 8.5m.
Newcastle Development Control Plan 2005 (the DCP) applies to the site and Part 5.1 Single Dwellings is relevant to the application. The relevant objectives of that part are:
- Encourage development that complements and enhances the built environment and has minimal impact upon the existing amenity.
- Provide a reference for design and assessment of single dwellings in the City of Newcastle.
- Encourage innovation and diversification in site layout and building design.
The DCP includes controls based on a series of design principles and those relevant relate to street frontage appearance, building envelope and view sharing. Development is required to address the street and be compatible with and reflect positive design elements evident in the existing streetscape where appropriate; to be contained within a defined building envelope which is determined from planes projected at 45 from a height of 4.5 metres above natural ground level at the side boundaries; and to a maximum height of 9 metres.
In relation to view sharing, clause 5.1.6 establishes a principle for consideration of views and privacy as follows:
- Dwellings should be designed to encourage the sharing of views whilst not restricting the reasonable development potential of a site.
- Dwellings should be designed to meet projected use requirements for visual and acoustic privacy.
- Dwellings should protect the visual and acoustic privacy of nearby buildings.
Guidelines relating to this principle are:
(i) All property owners should be able to develop their property within the established planning guidelines, however, existing views should not be substantially affected where it is possible to design for the sharing of views.
(ii) Grand vistas and views which are recognised and valued by the community should not be obscured by new development.
(iii) Heritage or familiar dominant landmarks should be retained and not obscured.
State Environmental Planning Policy No. 71 - Coastal Protection (SEPP71) also applies and clause 8 requires the consent authority to take into consideration a range of matters, those relevant are:
(a) the aims of this Policy set out in clause 2,....
(d) the suitability of development given its type, location and design and its relationship with the surrounding area.
The relevant aims of SEPP71 are:
(e) to ensure that the visual amenity of the coast is protected, and
(k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area.
The issues
The matters in contention are whether:
- the proposal will have an acceptable visual impact on the escarpment and ridgeline;
- the s 88B instrument should be released;
- the proposal is acceptable in terms of the impacts on neighbour's views;
- the proposed deck is acceptable in terms of privacy and amenity impacts to neighbouring dwelling houses.
The evidence
The hearing commenced on site when a view of the site, the adjacent property to the west and a dwelling in Hickson Street, the street higher and to the south of the site, was undertaken. The applicant had arranged for a frame to be erected to indicate the location of the proposed third storey and this was particularly helpful in assessing the impact of the proposal. At the conclusion of the site view, the parties and the Court observed the site from a number of locations further to the north including Merewether Baths and Beach, Scenic Drive/Frederick Street and Dickson Park.
Evidence from residents was heard and the following matters raised:
- Non-compliances with the council's planning controls in relation to height and building envelope and the precedent and unacceptable impacts of allowing the proposal would have in the area;
- Unsatisfactory visual impact of the dwelling, particularly when viewed from the north;
- Loss of views, particularly from the adjacent site to the west and the rear dwelling on that site;
- Scale of building out of character;
- Height restriction imposed on the site when the land was subdivided and development should accord with that control;
Expert town planning evidence was heard from Mr Shiels for the council and Mr Lidis for the applicant.
Impact on the escarpment and ridgeline
The experts agree that the existing built form generally follows the ridgeline and that there is an established pattern of development in the vicinity of the site. They also agree that the proposed third storey is more prominent because it is sited on top of the existing two-storey component of the dwelling; would be less prominent if setback to the rear of the site and that appropriate colour selection could further reduce the visual impact of the work. Mr Lidis considers the proposal has been designed to minimise impacts on the escarpment and ridgeline and is in character with surrounding development. Mr Shiels disagrees and states that the proposal will break the built form on top of the ridge which, he says, follows a line down slope from west towards the ocean however concedes that this line is a notional consideration and not an express consideration of any planning instrument.
Mr Lidis says the proposal is consistent with the requirements of the relevant planning instruments in relation to built form and the character of the area. Mr Shiels disagrees and says that it would have an unacceptable impact on amenity, particularly that enjoyed by the adjoining property and does not complement and harmonise with the positive built form of the locality.
88B Instrument
The purpose of the Instrument is to control the height of the development on the site so that it does not exceed a building envelope height greater than 62 metres AHD and extending a vertical distance of 7.2 metres from natural ground level to the ceiling of the uppermost floor. The plans, which form Exhibit C, show a proposed ridge height of RL64.66, which exceeds that allowed by the covenant by 2.66m. The height of the building also exceeds the 7.2m control by up to 1.4m.
Mr Lidis argues that there is no sound planning reason to maintain the restriction as to height as he ways there are no unreasonable, demonstratable adverse impacts on the surrounding area or adjoining properties. Mr Shiels disagrees and says that the control was imposed to constrain bulk and retain views from neighbouring properties.
It is agreed that the Court has the power to release the 88B Instrument and that the relevant consideration is whether the development merits consent.
Impact on Views
The experts agree that the proposed development results in a 75% loss of water views from the primary viewing area (living area and balcony off that area) of the adjoining, rear multi-unit dwelling, No. 36A Lloyd Street and that the impact is a severe impact. They describe the view currently enjoyed from that property as "iconic" and comprising a view "towards Newcastle Harbour, Merewether Beach, Bar Beach and Shepherd's Hill, the ocean and other distant views". It is to the north and north-east across the side boundary of the site.
It is also agreed that the impacts from the secondary viewing area (main bedroom) are significant however considered to be moderate and agreed that the view of the interface between the beach and the water would be retained, the view loss being confined to the ocean views and quantified as 33%.
Mr Lidis does not consider the proposal has any unreasonable adverse impacts on the existing views from No. 36A as the view is obtained looking across the site, what he considers to be extensive views will be retained to the north and north-east of the beaches and breaking surf (land/water interface), ocean views from the backyard would remain and that the additions would not be as intrusive as that which would occur if the consent for the roofed deck above the garage was acted on.
Mr Shiels disagrees and says that the extent of view loss is severe, and that a substantial proportion of the iconic views of the water will be unreasonably diminished.
Both experts provided a series of photographs that indicate the extent of view loss which were aided by the construction of the framework on site. These form parts of exhibits B and 3.
It is agreed that the proposed development does not fit within the building envelope controls contained within the DCP; that the proposal meets the 9m height limit in the DCP but would not satisfy the 8.5m control included in the draft LEP. Mr Lidis had provided some plans in his expert report which attempted to demonstrate the extent of non-compliance however when levels included in survey plans were compared, it became apparent that the variation is greater than demonstrated. Considerable analysis of the extent of that variation was conducted by the experts during the hearing and subsequently, further information was provided by both experts after the hearing. Mr Lidis agrees that the extent of variation is 0.24m different (greater) to that shown on the plans and Mr Shiels considers it to be in the vicinity of 0.24 and 0.26m. The variation involves the eaves, gutter and part of the eastern and western walls of the proposed addition. To achieve compliance, the walls would have to be setback further from the site's side boundaries however, there is no evidence available of the extent of that setback.
Mr Lidis sees no utility in complying with the envelope controls contained within the DCP as he considers there would be no material improvement in the built form or impacts of the proposal. Mr Shiels argues that it is difficult to determine the extent of the changes due to insufficient information being provided in relation to ground levels however considers that there would be a marginal improvement if the development met the control.
Impact on Privacy and Amenity
Whilst this aspect was raised in the council's contentions, no further evidence was provided. At the site inspection it was noted that a proposed 1.6m high privacy screen was proposed to screen the impacts of users of the roof deck. The matter was not pressed during the hearing.
Conclusions and findings
I find that the proposed development would not be inconsistent with any of the relevant objectives of the planning instruments including SEPP71 in terms of visual impacts. I do not agree with the proposition advanced by the council that development on the site should step down the ridgeline and observation of the site and locality when viewed from the north shows that there is no established line and, as depicted in photographs 23 and 24 of Exhibit B, there are interruptions along the length of the ridge and the proposed dwelling would not offend that ridgeline or the council's planning objectives. I do however agree that setting the development further back on the site and using subdued colours would further reduce the visual impact of the development as agreed by the planning experts.
There is no evidence to support the contention regarding privacy and amenity impacts from the proposed deck.
That leaves the primary consideration to be that of the location, size, bulk and scale of the proposed additions and how that work impacts on adjacent properties, particularly in terms of view loss.
Both legal representatives referred me to the planning principle detailed in Tenacity Consulting v Warringah [2004] NSWLEC 140 where the Senior Commissioner considered the principles of view sharing and the impact on neighbours. In that matter, the Senior Commissioner had to consider similar planning controls that required designs to take account of view sharing. The relevant controls in this case are set out in paras 17 and 18 of this judgment and appear to provide more detail than that available to the Senior Commissioner, however no quantitative considerations are provided.
The four steps assessment process outlined in Tenacity received detailed consideration by the planning experts and in submissions made. With regard to the first step, it is agreed by both parties that the view enjoyed by the neighbouring property and the site is an "iconic" and "whole" view.
The parties disagreed from what part of the property the views were obtained. Mr Lidis considered the view was across the adjoining property and therefore, in accordance with Tenacity would be one that would be more difficult to accept. Mr Shiels considered the view to be to the front of the property and therefore, there is an expectation that it should be retained. I do not agree that the view is a side view, however do accept that the siting of No36A at the rear of the allotment means that the arc of the view is perhaps wider than that which would be enjoyed by the front dwelling on the same allotment. I accept Mr Shiels opinion that the side view from the property is that which would be gained when facing east and that such a view does not exist as it is either lost by the provision of existing privacy screens installed at No. 36A as a condition of consent for the multi-unit housing development or the rear pavilion on the site and the common boundary fencing.
The experts agreed that the extent of impact from the primary viewing area i.e. the living area of No 36A from both a standing and sitting position was severely impacted. I agree. I also consider that the extent of that impact, being some 75% of water views, is, both from a qualitative and quantitative sense, severe.
Finally, the fourth step is to assess the reasonableness of the proposal. In this regard, there are two matters that must be considered, firstly the council's planning controls, in particular the building envelope and secondly, the s88B Instrument. I note that the development does not meet the council's building envelope control and whilst I do not have evidence of the precise breach of the control, the fact is that the western wall of the addition is closer to the side boundary than would be acceptable applying the control. In addition, in allowing the subdivision of the land to create the site, the council had considered the potential impact of any development of the site on adjoining properties and attempted to control that impact through the imposition of a height control. Whilst the DCP allows development of the site higher than that imposed by the s88B instrument, and clause 18 of the LEP allows a consent authority to approve development which is contrary to the restriction where that development accords with its planning controls, I consider that the instrument remains a valid consideration.
It is apparent that the recent development constructed on the whole of the land which was No 36 Lloyd Street took into consideration the height controls imposed under the 88B Instrument, particularly in the design of the rear dwelling No. 36A which has been sited to take advantage of the available views outside the envelope that those height controls would establish. The evidence heard from the owners of that property confirm this is the case and that they had an expectation that the council would enforce the control and subdivision consent condition. That expectation cannot be guaranteed, particularly because of clause 18 of the LEP. Whilst the Court can vary the restriction, in the circumstances of this case, I do not consider that it is appropriate to do so.
Whether there is a more skilful design that could provide the applicant with the same development potential and amenity and reduce the impact on the views of the neighbours is the second leg of the fourth step in Tenacity. The planning experts were shown a plan of an alternate design which proposed a bedroom, ensuite and retreat above the rear or southern pavilion of the existing dwelling on the site. I note that the experts agree that the size of the alternate plan was smaller than that proposed in the application and that there was insufficient detail provided to allow proper assessment of the impacts of that proposal or how it would actually work in terms of stair location, roof intrusions and the like. Accordingly, I do not rely on that particular plan. I do however, accept Mr Shiels' proposition that a more skilful design at the rear of the site could provide the same development potential and amenity and reduce the view loss to the adjoining property.
I give minimal weight to the draft LEP, to the extent only that I note that the effect of this plan, if made as exhibited, would be to introduce a height control on 8.5m, being less than the current 9m control in the DCP.
Having undertaken a merits assessment of the application in accordance with the provisions of s79C of the Act, particularly the DCP provisions in relation to building envelope and view sharing, as well as having regard to the planning principles in Tenacity, I find that the development as proposed is unsuitable in the form proposed. It would have an unreasonable impact on the amenity of the surrounding area and would therefore be inconsistent with the zone objectives. I note that the latter is not fatal to the application however, with the failure to comply with the council's planning controls, the height restrictions in place through the s88B Instrument and the unsatisfactory amenity impacts to the adjoining property, the application must fail.
The Orders of the Court are:
(1) The application is dismissed.
(2) The exhibits, other than Exhibits 1, A and C are returned.
Sue Morris
Commissioner of the Court
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Decision last updated: 25 May 2011
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