Evenden v Pittwater Council - [2009] NSWLEC 1174

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Evenden v Pittwater Council [2009] NSWLEC 1174

PARTIES:
APPLICANT
Peter Evenden
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10188 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Height of fence in Foreshore Scenic Protection Area, view impact, character

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993
Pittwater 21 Development Control Plan
State Environmental Planning Policy 71 – Coastal Protection

CASES CITED: Tenacity v Warringah Council [2004] NSWLEC 140
Pafburn v North Sydney Council [2005] NSWLEC 444

DATES OF HEARING: 19 May 2009

DATE OF JUDGMENT:
4 June 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Sattler (Solicitor)
SOLICITOR
Sattler & Associates
RESPONDENT
Ms S Puckeridge (Solicitor)
SOLICITOR
Mallesons Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

4June 2009

10188 of 2009 Peter Evenden v Pittwater Council
JUDGMENT

Background

1 This appeal was lodged against council’s refusal of a development application for the erection of a 1.8m high by 6.2m long fence adjacent to the rear portion of 90 George Street, Avalon. The applicant requires this fence in order to achieve a satisfactory level of privacy to this part of the garden area of the property.

2 As the property is situated on the Pittwater waterfrontage, the proposed fence would restrict views from other neighbouring properties. Consequently the issues concern the loss of visual amenity and the fence is out of character with the area.

The site

3 The site contains a 2-storey dwelling, a detached single storey outbuilding, decks, swimming pool and a sandstone seawall along the MHWM. It is located on the north-eastern side of George Street in a strip of residential houses. Immediately to the south is a single storey dwelling No. 88. To the north is Pittwater Waterway.

4 The surrounding area comprises low density dwellings that are oriented with attractive easterly/northerly aspects towards the waterway. Further to the east and south are mangrove areas.

5 The following controls apply:

Pittwater LEP 1993; under which the land is zoned Residential 2(a) (Residential A), “Area 1” under the Dual Occupancy Control and it is located within the Foreshore Scenic Protection Area.
State Environmental Planning Policy 71 – Coastal Protection (SEPP 71).
Pittwater 21 DCP – Amendment 3, adopted 4 February 2008, in force from 18 February 2008 until 28 November 2008. It contains relevant controls on:
Wave action and tidal inundation.
Habitat category 2.
C1.3 View Sharing.

The evidence

6 Detailed evidence was presented by Mr M Edwards, council planner and Mr D Fish consulting planner for the applicant. Other objections were presented by neighbours, including the owners of the adjoining No 88 George Street.

7 At the on-site hearing there was the opportunity of assessing the location of the proposed fence and undertaking view impact assessments from the neighbouring properties. It is obvious that the living areas and primary open space areas on the subject property have a favourable northerly orientation, towards Pittwater.

8 The location of the proposed fence is along the southern boundary of the property, which is adjacent to a detached entertainment/living room that is directly connected to a large terrace with north orientation. The fence is to screen the existing garden area and clothes line. In this area, the entertainment room is setback approximately 9m from the seawall. This indicated on title plan 1.

9 The property owners from No 88 would be most affected by the fence. According to their objection, they renovated their house to provide a large open plan, with a partially open area at the rear of the house, to enjoy the views of Careel Bay, Pittwater and the distant National Park. They do not consider the proposed fence results in a reasonable application of the view sharing principles.

10 The view sharing controls are contained in C1.3 of the 21 DCP. It provides for:

Outcomes

A reasonable sharing of views amongst dwellings…

Controls

All new development is to be designed to achieve a reasonable sharing of views available from surrounding and nearby properties.

The proposal must demonstrate that view sharing is achieved through the application of the Land and Environment Court’s planning principles for view sharing.

Where a view may be obstructed, built structures within the setback areas are to maximise visual access through the structure e.g. by the provision of an open structure or transparent building materials

11 The view sharing principles were stated in the matter of Tenacity v WarringahCouncil [2004] NSWLEC 140 and they basically provide for:

An assessment of the value of views to be affected by reference to their nature, extent and completeness.
A consideration of how views are obtained and what part of the property the views are obtained from.
A qualitative assessment of the extent of the impact in terms of severity, particularly as to whether the impact is either negligible, minor, moderate, severe or devastating.
An assessment of the reasonableness of the proposal that is causing the impact particularly in terms of compliance with the applicable planning controls and whether a different or complying design might produce a better result.

12 Mr Fish undertook a view assessment on the basis of this principle and found that:

Parts of the surrounding properties have highly valued water views and secondary land views. The proposal maintains the range of views enjoyed from these surrounding properties due to its siting, height & location and its open design.
Views from the surrounding buildings appear to be primarily obtained from living / lounge rooms, although it appears that some views may be obtained from bedrooms, bathrooms, kitchens and certainly from balconies and terraces, where these are provided.
Given the extensive water and foreshore views outlined above and the likely view loss assessment, we are able to conclude that the potential view loss can only be qualitatively assessed as 'negligible' or 'minor' under the parameters established by the Court's planning principle.
In relation to the reasonableness of the proposal, it is noted that the fence height, location and see-thru design comply with all of the prerequisites of the DCP.

13 Consequently Mr Fish considers that the proposal is reasonable in terms of satisfying the Tenacity principle.

14 An associated concern is the specification for the proposed fence. Section D 1.16 of the DCP contains the controls for fences in the designated Flora and Fauna Areas. As the property is within such area and the Avalon Beach Locality, any fence is required to satisfy the desired future character provisions. This includes:

d. Fencing adjoining Pittwater Waterway

Fences are to be setback 3 metres from the property boundary adjacent to the waterway, and shall have a maximum height of 1.8 metres.

Fences are to be constructed of open, see-through, dark-coloured materials. Landscaping is to screen the fence on the foreshore side.

Conclusion

15 Having considered the evidence and undertaken a view, I do not consider that the fence as proposed demonstrates reasonable satisfaction of the Tenacity principle to merit consent.

16 The application of the Tenacity principle requires the input of subjective judgements from the various points of view impact. My following assessment is primarily based on the impacts to the residents of No88, but I note there are other properties further to the south that have their views of Careel Bay impacted on.

There are presently attractive easterly and northerly views of Careel Bay available from the rear living areas of No 88. However I accept the owners concern that the partially oblique, northerly views of Careel Bay have a special attraction with the view of the boat moorings.
These views are available from the rear yard area of No 88, as well as the living rooms of the house and areas on the outdoor entertaining terrace and from the sun-room.
I consider the views towards the boat moorings and associated activity has particular appeal, as compared to the general water views. In my assessment, the loss of this component would have a severe impact on No 88, relative to the general open waterway and mangroves view.
Based on the evidence presented, the desire for this 6.2m fence is to provide a higher level of privacy to this section of the where the clothes line exists. But I note that because the proposed fence is in the FSPA, then any fence is restricted to a maximum height of 1.8m and should be of a see-through specification. Under these circumstances, I consider an alternate design should result in a more reasonable outcome in terms of the current controls and the view sharing principle.

17 As I have noted, I consider it reasonable for some compromise of the fencing specification to retain some views towards the Careel Bay moorings from the rear entertaining area of No 88. It seems to me that this can be achieved by reducing the length and height of the fence to a maximum of 1.4m above the natural ground level of No 88. This allows a reasonable degree of view sharing. Whilst the controls allow a fence height of 1.8m, this is the maximum height and it is likely that in some circumstances, such as the current matter, that the maximum height may not be reasonable.

18 Taking into account that any fence in this flora and fauna area is also required to have a degree of “openness”, both at the base and through its intermediate slats, I think that the degree of privacy sought by the applicant is unreasonable in this predominantly open foreshore area. It is apparent that the subject property enjoys extensive private, north-facing, primary open space areas, including the pool area, apart from the subject 9m long southern boundary area.

19 It was estimated that this primary area represents approximately 85% of the open spaces area on the property. Consequently, the remaining secondary area, where the clothesline is located represents the remaining 15%. In terms of Tenacity, it seems a somewhat unreasonable expectation to effectively fortify this remaining 15%, causing a considerable view loss.

20 The other issue concerns the compatibility of the fence with the character of the area, as stipulated in Section A4.1 and D1.16 of the DCP. From my observations of the site and neighbouring properties adjacent to the waterfront, this area is predominantly open. Whilst there are some older type fences adjoining the waterfront, they are of a lower height in the order of 1.2m and post and wire specification that allows unobstructed viewing.

21 Considering that the proposed fence is to be erected along the most visually prominent common boundary as viewed from the waterway, I do not consider the 1.8m high paling fence is consistent with the desired future character objectives to generally conserve the natural landscape and enhance the waterfront areas.

22 Insofar as reference was also made to the planning principle in Pafburn v North Sydney Council [2005] NSWLEC 444, this deals with the necessity of the proposed development. In that matter the Senior Commissioner Roseth dealt with this matter on the following basis:

Planning principle: criteria for assessing impact on neighbouring properties.

How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?
How necessary and/or reasonable is the proposal causing the impact?
How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?
Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?
Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?

23 Reference to the foregoing principles allows consideration of alternate, more sympathetic designs. In this case, I am satisfied that a reasonable privacy fence, consistent with the intent of the development controls would have a specification of:

24 The Court orders:

1 The appeal is upheld.
2 Consent is granted to DA No NO557/08 for the construction of a timber fence adjacent to the Pittwater Waterway at 90 George Street, Avalon in accordance with conditions in Annexure A.
3 The exhibits may be returned except for 1, 3, A and C.

___________________
R Hussey
Commissioner of the Court
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Annexure ‘A’

Conditions of Consent

Evenden v Pittwater Council

This consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate.

Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development.

A. Prescribed Conditions:

1. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force.

1A. The approved fence shall comply to the following specifications:

2. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house, and

c. stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

3. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information:

4. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information.

5. The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary.

1. There shall be no damage to intertidal habitats including rocky shores, seagrass beds, salt marshes or mangroves.

2. The fence shall have a maximum height of no more than 1.4m above the natural ground level at No. 88 George Street. The fence shall be constructed of open, see-through and dark- coloured materials and shall have an opening with minimum dimension of 150mm x 150mm where the proposed fence joins the existing masonry fence, to ensure that the fence is passable by Native Wildlife.

3. No building materials or other materials are to be placed on salt marsh or other foreshore vegetation. Sediment is not leave the site or enter areas of salt marsh or other foreshore vegetation.

4. No environmental weeds are to be planted on the site.

5. This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve.

Note: All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications / details cannot be accepted.

1. Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, satisfy all conditions shown in Part B above are to be submitted to the Principal Certifying Authority.

Note: It is an offence to commence works prior to issue of a Construction Certificate.

1. Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction.

2. No works are to be carried out in Council's Road Reserve without the written approval of the Council.

3. No skip bins or materials are to be stored on Councils Road Reserve.

4. A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: -

The builder's name, builder's telephone contact number both during work hours and after hours.
That no works are to be carried out in Council's Road Reserve without the written approval of the Council.
That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Councils Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site.
That no skip bins or materials are to be stored on Councils Road Reserve.
That the contact number for Pittwater Council for permits is 9970 1111.

5. A stamped copy of the approved plans is to be kept on the site at all times, during construction.

E. Matters to be satisfied prior to the issue of Occupation Certificate:

Note: Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works.

Note: It is an offence to occupy the building or part thereof to which this consent relates prior to the issue of an Occupation Certificate.

1. An Occupation Certificate application stating that the development complies with the Development Consent and that a Construction Certificate has been issued must be obtained on completion of the construction work approved by this Development Consent.

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Citations

Evenden v Pittwater Council [2009] NSWLEC 1174

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

4

Tenacity Consulting v Warringah [2004] NSWLEC 140

Pafburn v North Sydney Council [2005] NSWLEC 444

CITATION:	Evenden v Pittwater Council [2009] NSWLEC 1174
PARTIES:	APPLICANT Peter Evenden RESPONDENT Pittwater Council
FILE NUMBER(S):	10188 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Height of fence in Foreshore Scenic Protection Area, view impact, character
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 1993 Pittwater 21 Development Control Plan State Environmental Planning Policy 71 – Coastal Protection
CASES CITED:	Tenacity v Warringah Council [2004] NSWLEC 140 Pafburn v North Sydney Council [2005] NSWLEC 444
DATES OF HEARING:	19 May 2009
DATE OF JUDGMENT:	4 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Sattler (Solicitor) SOLICITOR Sattler & Associates RESPONDENT Ms S Puckeridge (Solicitor) SOLICITOR Mallesons Stephen Jacques