BT Goldsmith Planning Services Pty Ltd v Pittwater Council

[2003] NSWLEC 323

>

Land and Environment Court

of New South Wales

CITATION:

BT Goldsmith Planning Services Pty Ltd v Pittwater Council [2003] NSWLEC 323

PARTIES:

APPLICANT
BT Goldsmith Planning Services Pty Ltd

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10707 of 2003; 10708 of 2003

CORAM:

Bly C

KEY ISSUES:

Development Application :- Building bulk - height and materials - front bulding line - set-backs - building height - wall length - landscaped area

LEGISLATION CITED:

Environmental Planning and Assessemt Act 1979
Pittwater Local Environmental Plan 1993
Development Control Plan No. LP9

CASES CITED:

DATES OF HEARING:

20, 21 November 2003

DATE OF JUDGMENT:

12/09/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Goldsmith, town planner

RESPONDENT
Mr D Parry, barrister
SOLICITORS
Mallesons Stephen Jacques

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10707 of 2003
10708 of 2003

Bly C

26 November 2003

BT Goldsmith Planning Services Pty Ltd

Applicant
v

Pittwater Council

Respondent

Judgment

Introduction

1 These two appeals relate to the refusal of development applications Nos. 110/03 and 109/03 for the construction of a detached dwelling house on each of lots 48 and 49 being Nos. 95 and 97 Grandview Drive, Newport.

2 The two dwellings are predominantly two-storey although each dwelling comprises five different levels which generally step up the sites from their garages at street level.

3 The sites have respective areas of about 436 m2 and 484 m2 and have relatively steep slopes of about 20.

Statutory Provisions

4 The two sites are zoned Residential 2(a) under the Pittwater Local Environmental Plan 1993 ("the LEP") and the proposed dwellings are permissible with development consent.

5 Relevantly applicable to these sites is Development Control Plan No. LP9 - Bilgoa Plateau and Ridge Locality ("the DCP").

6 The general aims and objectives of the DCP include the following:

· To conserve and where possible enhance desirable characteristics identified in the Character Evaluation Report.

· To ensure that future development has minimal effect upon the natural topography and environmental attributes of the land.

· To ensure that development shall harmonise with the natural setting and enhance the visual amenity.

· To ensure that the residential amenity shall be maintained and that the locality is a desirable place to live.

· To ensure that the indigenous vegetation shall be maintained and enhanced, with existing tree canopy l levels being preserved.

7 Part 2 of the DCP - Character Evaluation in Section 2.4 - Building Bulk, Height and Materials describes existing and proposed development on the Bilgoa plateau and ridge locality generally as follows:

Most houses are two storeys, with a few reaching three storeys as they step down the escarpment. However, some of the older houses found on Bilgoa Plateau are only single storey, as they are on relatively level land with no views. A two-storey height limit should be maintained so as to allow an equitable share of views. On the more steeply sloping sites, particularly on the escarpment three storeys may be permitted provided a maximum of two storeys is maintained at street frontage. Buildings must be designed to ensure that views are not obstructed and so that the development does not create a visual scar on the escarpment.

8 Section 2.4 of the DCP encourages the retention of existing canopy trees and the provision of additional species to complement the surrounding area when new development is taking place. The retention of mature trees close to the roadside is desirable.

9 Relevant development controls are to be found in Pt 3 of the DCP and these include a front building line and set-backs, building height, wall length and landscaped area.

Advertising and council's decision

10 The applications were advertised and eight submissions were received from residents of Grandview Drive and York Terrace at the rear. These submissions include objections to the proposals on the basis of excessive site coverage, insufficient setbacks, excessive wall length and building height, the removal of trees and the loss of views.

11 Council's decisions to refuse the applications were effected by Notices of Determination dated 4th June 2003 for reasons relating to site coverage, side boundary setbacks, front building line and building height.

The evidence

12 Expert town planning evidence was given behalf of the respondent council by:

· Mr C Scott, town planner

13 Evidence on behalf of the applicant was given by:

· Mr A Ludvik, town planner

· Miss N Sonter, landscape consultant

14 Taking into account all of the evidence including the site inspection the salient issues to emerge from the hearing were essentially twofold:

1 Whether the proposed dwellings would result in a loss of views for the adjoining property at the rear being No. 36 York Terrace.
2 Whether the development proposals would adversely impact upon the character and streetscape of Grandview Drive taking into account the height, bulk and scale of the dwellings, the removal of vegetation and proposed landscaping.

15 There is no doubt that from different vantage points on the property at No. 36 York Terrace that views of Newport Beach are available over the existing house on the subject sites. These views are restricted to some degree by existing vegetation and most of what exists would be lost as a result of the proposals.

16 It is also clear that reasonable buildings complying with the height and other requirements in the DCP would remove these views and as a consequence the view loss would not have been a determinative consideration.

17 In relation to the issue of streetscape and character the most relevant provisions of the DCP in addition to the general aims and objectives are to be found in Sections 3.1.7 and 3.3.1.

18 In relation to building height the relevant aim of the DCP is:

To maintain building height below the existing tree canopy level, so as to screen development from the street and to soften views within the locality. To maintain a scale of building that complements the natural character of the area.

19 The associated control is:

The maximum height of a building shall be 8.5 metres. However, on sites with slopes greater than 20% within the building platform, a height of up to 10 m may be considered subject to other site constraints and provided such allowance does not lead to over bulky design which may adversely impact on neighbours or view loss.

20 In relation to the natural environment the relevant aim of the DCP is:

To retain, regenerate and promote the planting of indigenous trees, shrubs and ground cover wherever possible. To increase the canopy cover, and the habitat value and to improve the natural landscape character of the area.

21 The associated control is:

Applications shall be designed to maximise the retention and preservation of indigenous trees, shrubs and ground covers, as well as natural features including rocks and water courses. All upper canopy trees shall be indigenous to the local area and, where suitable, shall be habitat trees for endangered fauna.

22 In addition in relation to building bulk, height and materials section 2.4 of the DCP provides that:

A two-storey height limit should be maintained so as to allow an equitable share of views. On the more steeply sloping sides particularly on the escarpment three storeys may be permitted provided a maximum of two storeys is maintained at the street frontage. Buildings must be designed to ensure that views are not obstructed and so that the development does not create a visual scar on the escarpment. Design considerations that reduce visual bulk, provide facade modulation, and shade elements such as verandas, pergolas and a reduction of large reflected window areas should be encouraged. The retention and additional planting of vegetation on sites also helps to reduce the mass of buildings and therefore should be encouraged.

The evidence

23 In their joint reports Mr Scott and Mr Ludvik agreed that the proposed buildings were modest in their gross floor area. However they disagreed in relation to the impact of the buildings on the streetscape and the character of the area. In this regard they agreed that the matters that need to be considered in determining the appropriateness of the bulk and scale of these buildings are height, the setback of the upper levels from Grandview Drive and the distribution of landscaping.

24 In relation to the landscape proposals they agreed that it was not the quantum of landscaping that was in issue but rather its distribution around the site. In this regard I am not concerned at the relatively minor non-compliance with the landscaped area requirement in the DCP for No. 95 Grandview Drive especially since the introduction of the planter boxes on top of the garages.

25 Mr Scott noted that the two sites have slopes greater than 20% which enables the height concession up to 10 m in Section 3.1.7 of the DCP to be considered. However both proposals would not maintain the existing consistent two-storey roofline in the street and would also exceed the 10 m limit which is considered to be an absolute maximum. In this context he was especially concerned at how the height and bulk of the proposal would adversely affect the natural character of the area.

26 He was also concerned that as a result of the removal of existing canopy trees along the street frontage, the height of the proposed buildings would exceed the remaining tree canopy level. The resulting predominantly visual impact within the locality would be inconsistent with the requirements of the DCP. There would be no effective screening from the street even with the proposed landscaping. In these circumstances the two proposals should not be able to benefit from the 10 m height provision in the DCP.

27 Mr Scott was also concerned that because the roof lines of the proposed dwellings would project well above nearby dwellings and would appear as four or five storey structures when viewed from the street they would be inconsistent with the prevailing streetscape. The removal of canopy trees will further emphasise the heights of these buildings and hence their bulk and scale generally. He noted that whilst the exceedances of the 10 m height limit were not great, this occurs at the front of the building where, in terms of streetscape, it has the greatest impact.

28 His earlier concerns that the garage structure at street level would not be visually separated from the main part of the buildings seems to have been resolved by the provision of extensive landscaping on top of the garages and planting beside and between the two buildings.

29 Mr Ludvik was of the opinion that the exceedances above the 10 m height limit were minor, imperceptible and largely inconsequential particularly when compared to other taller buildings in Grandview Drive.

30 In dealing with bulk and scale he was of the opinion that buildings with these proportions would be generally considered to be within at the scale and bulk normally expected within detached dwelling house areas. The proposal would be compatible and consistent with the prevailing character of existing residential development on the high side of Grandview Drive in this locality.

31 In dealing with the relationship of this development to the retained tree canopy on the western part of the sites, he noted that the maximum ridge height of the buildings would be almost 2 m below this canopy

32 In response to concerns regarding the provision of garages adjacent to the street alignment he explained that the disturbance of sites to provide such carparking on these relatively narrow allotments does not permit the establishment of a typical landscaped front yards. Taking into account the topographic characteristics of these sites and their surroundings, buildings are not capable of being screened by landscaping when viewed from the street. As a consequence these buildings will inevitably be more visible when viewed from Grandview Drive.

33 More generally he was of the opinion that the two proposed houses represent a highly refined architectural approach providing an interesting streetscape presentation using a series of skillion forms. The introduction of landscaped planter boxes will visually separate the garage structures from the main part of the houses providing a softening effect for both.

Conclusions

34 Together with the removal of significant trees from within the frontage area of the sites these two, effectively five level buildings will result in a significant change to the natural character of these sites. Despite the landscaping designs, including the substantial planter boxes, these buildings will be highly visible when viewed from within the immediate vicinity.

35 However I do not accept that it would be necessary or even appropriate for a landscaping scheme to totally screen development from view, given that the existing character of this area generally comprises visible residential development in landscaped settings.

36 Although concern was expressed at the fact that the two double garages will be able to be seen in their full width, I have not been persuaded that this is a matter of critical concern. These garages provide an appropriate level of off-street parking in conveniently accessible locations in a manner very much the same as exists in other nearby locations. This together with the landscaping opportunities available beside and above the garages leads me to conclude that these elements of the buildings need not be inappropriate in the streetscape. In this regard I have taken into account the fact that about one-third of the total frontage is taken up by landscaping as well as the proposed substantial planter boxes.

37 Whilst Miss Sonter believed that her landscape design which introduces groves of native Frangipani into the front setback areas would be appropriate, I have not been persuaded that the introduction of replacement characteristic canopy trees in these areas could not be provided.

38 In all of the circumstances I have been persuaded that these two buildings would be too tall in their presentation to the street. When they are considered together, particularly when viewed obliquely this height results in them having an excessive bulk and scale which, despite the existence of other nearby buildings having a height approaching that proposed here, is unsatisfactory.

39 Whilst I have not been persuaded that the trees to be removed from the front part of the site must necessarily be retained, their retention would have enabled the proposed buildings to be viewed well below their canopies, thus mitigating to some degree the apparent height of these buildings. Although some of the retained tree canopy will appear beside and beyond these proposed buildings they will nevertheless dominate that canopy and would thus not meet the essence of the height objective in the DCP which is to maintain building heights below the tree canopy and soften the appearance of buildings.

40 Whilst I accept that the landscaping proposal could have the effect of softening the appearance of part of this development and that complete screening is not necessary, the buildings will nevertheless project above this landscaping to the extent that the scale of the buildings would not complement the natural character of the area.

41 Notwithstanding my conclusion that these buildings will present as being too tall when viewed within the immediate streetscape it seems to me that it is only the top most levels and balconies that are problematical. It may be that if these levels are further stepped and setback that designs very much like what are included in these proposals would be more responsive to the requirements of the DCP and may as a consequence be satisfactory.

42 Therefore for the above reasons and mainly because of the excessive height of the proposals it is the Court's decision that these applications should be refused.

43 The orders of the Court are therefore:

1. The appeal is dismissed.
2. Development applications Nos. 110/03 and 109/03 for the construction of an detached dwelling house on each of lots 48 and 49 being Nos. 95 and 97 Grandview Drive, Newport, are refused.
3. Exhibits B and C are retained.

_____________________

Commissioner of the Court

Rjs