Dickson and Huolohan v Sutherland Shire Council

[2007] NSWLEC 176

Land and Environment Court

of New South Wales

CITATION:

Dickson and Huolohan v Sutherland Shire Council [2007] NSWLEC 176

PARTIES:

APPLICANT
Ian Dickson and Patricia Huolohan

RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10825 of 2006

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Elevated driveway and garage, adverse streetscape impacts, visual and privacy impacts on neighbours

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000
Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING:

19/12/2006, 2/03/2007 and 27/03/2007

EX TEMPORE JUDGMENT DATE:

27 March 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr. I. Dickson and Ms P. Huoldhan, litigants in person

RESPONDENT
Mr C. Mathieson, solicitor
of Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

27 March 2006

10825 of 2006 Ian Dickson and Patricia Huolohan v Sutherland Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background.

1 This appeal was lodged against council's refusal of a development application for an elevated driveway and erection of a freestanding brick garage in the front setback area of a dwelling situated at 52 Buchanan Avenue, Bonnet Bay.

2 This subsequent development application was lodged, following the refusal by the Court of an alternative design for the garage. Consequently, the issues identified for the subject appeal can be summarised as follows:

• unsatisfactory streetscape impacts,
• visual and privacy impacts on the neighbouring property,
• objections.

The Site.

3 The subject site is described as Lot 433 DP 232054. The land has a frontage of approximately 17.2 m to Buchanan Avenue and total area of 632.3 sq m. It contains a 2-storey dwelling and swimming pool.

4 The site slopes relatively steeply from Buchanan Avenue, to the front of the existing dwelling, which has a setback of approximately 12 m. There is an existing curved alignment driveway within the front setback area and various native canopy trees and understorey vegetation.

The Proposal.

5 This proposal involves the reconstruction and widening of the driveway to provide access to a new double garage, which is separated and offset from the dwelling by approximately 3 m (average, considering axis rotation). The garage is to be partly elevated on the dwelling side, allowing storage underneath. An access door is included in the northern elevation, leading to a small deck and stairs to the front of the dwelling.

6 The proposed garage is single storey, with a pitch roof incorporating dutch gables.

7 Insofar as the proposal involves removal of some of the existing vegetation, the applicant proposes the planting of supplementary planting to substantially screen the structure from neighbouring properties and the street.

Planning Controls.

8 Sutherland Shire Local Environmental Plan 2000. (SSLEP); under which the site is zoned 2 (e1) Residential and is within a Foreshore Scenic Protection Area. The proposal is permissible with consent.

9 Clause 30 of SSLEP contains special considerations for development in the residential zones. It specifies certain matters that are to be addressed and relevantly includes:

(a) the impact that the proposed development may have on adjoining development, building and open space from loss of sunlight, views and privacy ,
(b) the effect of the proposed development on the quality in 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 landscape area,
(e) 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.

10 Clause 36(1) establishes the objectives for landscape area requirements and cl 36(2) requires a minimum landscape area for an allotment in this zone of 50%.

11 Sutherland Shire Local Environmental Plan 2006. This LEP came into effect on 29 November 2006, after development application was lodged.

12 Clause 7(2)(b) provides the following savings clause:

“any development application lodged before the commencement of this plan, but not finally determined before its commencement, is to be determined as if this plan had been exhibited under s 66 of the Act , but had not been made.”

13 Clause 36 details the landscaped area requirements, which are determined on the basis of a sliding scale depending on lot area. In the subject case, a landscape area of 45% is required.

Development Control Plan for Dwelling Houses in the 2 (e) Residential Zones and Kurnell . This DCP contains overall and objectives for residential development, to encourage harmony with the natural surroundings and minimise impact on the natural environment. In cl 10.4, it prescribes a building line of 7.5 m. However, discretion can be exercised providing the objectives of the plan are achieved.

The evidence.

14 This matter commenced by way of an on-site hearing, involving a site inspection of the location of the garage to enable an assessment of its environmental impact. At this hearing, objections were made by Mr & Mrs Hatton, neighbours from 54 Buchanan Avenue. Their concerns were that the elevated driveway and garage on piers (within the setback area), was out of character, and would create unsatisfactory visual impacts from their property and would result in a loss of privacy.

15 The council officers expressed concern about the alignments of the driveway and proximity of the garage to the street in terms of unsatisfactory streetscape impact.

16 In response to these objections, the applicant amended the proposal by shifting the garage footprint further to the west and lowering the garage floor. This reduced visibility of the garage from the street and also from the neighbouring property.

Conclusions.

17 Having the evidence, the submissions and undertaken a view, I am now satisfied that the amended proposal reasonably satisfies the controls to merit conditional consent.

18 The type of garage proposed is permitted on this site, as is evidenced by other similarly sited garages is in this neighbourhood. The controls allow some discretion in respect of the topography of the land and I consider it reasonable that this be applied in the subject case as the general objectives of the zone are reasonably satisfied.

19 The amended location of the garage provides for it to be lowered and in my assessment results in an acceptable streetscape impact, because the structure is substantially within the backdrop of neighbouring and subject dwellings built form. With the proposed landscaping, the garage structure will be substantially screened, which I consider acceptable.

20 The relocation of the garage in a westerly direction together with the revised horizontal and vertical alignment of the driveway, effectively reduces the visual and privacy impacts on the neighbouring property 54 Buchanan Avenue. The site inspection revealed that the existing, mature pittosporum substantially screens the proposed structure. The retention of this tree, together with the proposed landscaping, effectively reduces the visual impacts and privacy concerns to a reasonable level, in my assessment.

21 Insofar as, there is some minor deficiency in the landscape area as required under SSLEP 2000, which is the prevailing control by virtue of the savings clause in SSLEP 2006, the applicant has lodged a SEPP 1 Objection, which the council accepts and I am satisfied that it should be allowed.

22 Therefore I am satisfied that this amended proposal demonstrates reasonable compliance with the zone objectives and development controls in the DCP to merit conditional consent.

23 Court Orders

1. The appeal is upheld.

2. The SEPP 1 objection to the minimum landscaped area development standard in cl 36 of SSLEP 2000 is allowed.

3. Development consent is granted to DA 05/1047, for the construction of an elevated driveway and erection of a freestanding brick garage, together with associated landscaping at 52 Buchanan Avenue, Bonnet Bay, subject to the conditions in Annexure A.
4. The exhibits may be returned except 13, D and E.

___________________

R Hussey
Commissioner of the Court
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