Executive Products Pty Limited v Nambucca Shire Council
[2008] NSWLEC 1523
•14 October 2008
Land and Environment Court
of New South Wales
CITATION: Executive Products Pty Limited v Nambucca Shire Council & Ors [2008] NSWLEC 1523 PARTIES: APPLICANT
RESPONDENT
Executive Products Pty Limited
Nambucca Shire Council & OrsFILE NUMBER(S): 10423 of 2008 CORAM: Bly C KEY ISSUES: Development Application :- alterations and additions to the existing two storey dwelling house, loss of views, height. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 71 Coastal Protection
North Coast Regional Environmental Plan
Nambucca Local Environmental Plan 1995
Nambucca Development Control Plan 3, Residential Development.DATES OF HEARING: 13/10/2008 and 14/10/2008 EX TEMPORE JUDGMENT DATE: 14 October 2008 LEGAL REPRESENTATIVES: APPLICANT
Mrs M.L. Taylor, solicitor
of Bartier Perry SolicitorsRESPONDENT
2nd RESPONDENT
Mr M. Coulter, general manager
Mr M. Seymour, barrister
Instructed by Mr D Dunn, solicitor
of Stacks the Law Firm
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBly C
10423 of 2008 Executive Products Pty Limited v Nambucca Shire Council & Ors14 October 2008
This decision was given extemporaneously. It has been revised and edited prior to publication.
JUDGMENT
1 This appeal relates to a development application for alterations and additions to the existing two storey dwelling house at 18A Matthew Street, Scotts Head. The additions involved comprise, a two storey extension stepping down from the rear of the existing house towards the rear of the site. It is to provide a games room and a living room each having internal dimensions of about 8.5 m by 5.8 m.
2 The irregular shaped site has an area of about 480 sq m and extends between Matthew Street and a public reserve at the rear. It generally falls from the street towards this public reserve and has views of the Pacific Ocean including the nearby coastline, and the headland known as Elephant Head. Surrounding lands are predominantly residential comprising one and two storey detached dwellings of various construction types and ages.
3 Relevantly applicable planning controls comprise State Environmental Planning Policy No 71 - Coastal Protection, North Coast Regional Environmental Plan, Nambucca Local Environmental Plan 1995 and Nambucca Development Control Plan 3 - Residential Development.
4 The application was advertised on several occasions and in excess of 100 objections were received by the council. These objections raised concerns, including the excessive height of the dwelling extensions contrary to the provisions of the DCP, amenity impacts on neighbouring properties including overshadowing and view loss, overdevelopment of the site resulting from excessive visual bulk and scale and approval would represent an inappropriate precedent in this locality.
5 A number of these residents explained these concerns in some detail when the hearing began on site. Two of the residents of 16 and 19 Matthew Street were together admitted as a second respondent in the proceedings.
6 In its various forms the proposal was the subject of a number of reports prepared by council town planners who recommended in each case that the application be approved. Despite this, the application was refused by the council.
7 Expert town planning evidence in the form of individual reports and a joint report were provided on behalf of the first respondent by Mr A Thorne, on behalf of the second respondent by Mr S Lawer and on behalf of the applicant by Mr P Drake.
8 According to the Statement of Facts and Contentions the matters in contention comprise under the heading Non-Compliance with DCP3-Residential Development:
- “(a) The proposed 1.8 m exceedence of the identified 5 m height limit outlined in Development Control Plan 3, Residential Development, is unacceptable due to the impact this will have on the loss of views from adjoining and nearby properties.
(b) Because of the value of the land on the eastern side of Matthew Street and its depreciated housing stock non-adherence to the provisions of the DCP will result in an unsatisfactory built form outcome for the street.
(c) Council has recently completed an extensive review of DCP 3 involving expert advice and community consultation which confirmed the building height provisions.”
9 The matters in contention as raised by the second respondent are essentially contained within the above contention (a) although the view loss concern also includes loss of views from public places. The question of precedent was also raised. All things considered, this case is about view loss and view sharing, mainly involving impacts on the property at 16 Matthew Street and, to a lesser extent, on the properties at 14A and 19 Matthew Street. There are also some views from Matthew Street itself across the site that could be lost.
10 The property at 16 Matthew Street is positioned next door but one to the site of the application and has coastal views of about 70 degrees across the adjoining reserve. This viewing arc projects across the site of the proposed development as well as over the cottage at the rear of 18 Matthew Street, its own rear yard and the rear yards of 14A and 14 Matthew Street.
11 The town planners agreed that the photo montage in Annexure C to Exhibit 6 provides a reasonable representation of the extent to which the proposed extension affects views from 16 Matthew Street and exceeds the said to be applicable 5 m height control.
12 The LEP does not contain any particular provisions that are said to be relevant to this application with the exception of cl 18 (2) that simply directs the consent authority to consider height limits specified in any relevantly applicable development control plan.
13 Section 3.0 of the DCP contains a number of specific requirements relevantly including the requirement that the maximum height of a dwelling is to comply with the height limits described on the maps in s 2.0 that are otherwise applicable to multi-unit development. The relevant Scotts Head map shows that the lands on the north and east side of Matthew Street have a height limit of 5 m and lands on the opposite side of Matthew Street have a height limit of 8 m.
14 Section 2.3 provides an indication of the weight to be given to certain design elements and in relation to height this is indicated as being critical. As for view sharing the weight will vary depending on the site conditions. Relevantly, the objectives of the height controls include the maintenance of existing residential character and the preservation of the amenity of surrounding development. The objectives also seek to minimise streetscape impacts and minimise the loss of solar access and privacy.
15 In relation to building height for this site the relevantly applicable design solution requires that in the case of areas designated with a maximum 5 m height limit on sloping land the lower side of the building may be permitted to a maximum height of 8 m provided views from adjoining residences and waterways remain unaffected. Otherwise, a 5 m maximum height limit to roof ridge should apply from natural ground level by stepping the building down the slope following the natural topography.
16 In dealing with view sharing the DCP requires that:
- “Building form and design allow for view sharing where possible, views including vistas of heritage items or dominant landmarks are not substantially affected by new development.”
17 The associated design solution makes reference to the reasonable sharing of views between proposed and neighbouring dwellings. In the council town planner’s report of 6 March 2008 it is noted that the proposal generally complies with the DCP notwithstanding that the additions exceed 5 m in height and that views from adjoining residences will be affected. In this context the report notes that it is considered that a literal interpretation of the DCP which arguably states that the proposal is unacceptable solely on the basis that views are affected would be unreasonable and incorrect. Rather, the issue of views being affected by the development deserves critical assessment and the relative impacts of the development need to be weighed up as part of the proper assessment of the proposal under s 79C of the Environmental Planning and Assessment Act 1979.
18 Plainly, by affecting views form 16 Matthew Street as this development does and by exceeding the 5 m height limit the DCP requirement is not met. But this does not mean that the application must be refused. Instead, the requirement is an important matter for consideration under s 79C of the EPA Act and this consideration is to be distinguished from the consideration required for a higher order development standard or a prohibition under a local environmental plan.
19 In this context one can readily think of a non-compliant building that is barely higher than 5 m and causes the loss of a view that is minor or inconsequential and is of no concern. In such circumstances it would not make planning sense to refuse such a building simply because it does not strictly comply with the DCP requirement. In my opinion the provision can be applied flexibly, especially bearing in mind that where there is no view loss a building could be as high as 8 m. I thus agree with the approach adopted by the council’s town planner. Hence, the question that arises is whether the consequences of the non-compliance attract such significance as to justify a refusal of the application.
20 In order to answer this question it is appropriate to consider, as required by the DCP’s performance criteria, the notion of view sharing. The DCP provides little assistance as to how view sharing is to be applied and hence the experts made reference to the decision of Roseth SC in Tenacity Consulting v Warringah 2004 NSWLEC 140. In that case the Senior Commissioner identified a four step approach to decide whether or not view sharing is reasonable.
21 Having reviewed all of the evidence it is my opinion that whilst there are some impacts on the views of several properties the only property affected to any significant degree is 16 Matthew Street and it is this impact that needs to be the subject of particular analysis.
22 In applying Tenacity to this property the first step is to assess the views that are likely to be affected. The property has expansive views over Elephant Head, the Pacific Ocean, the foreshore including the cove immediately to the south of Elephant Head and the distant foreshore to the north. The second step involves an assessment of the affected views. Plainly, Elephant Head is a dominant landmark of the kind referred to in the DCP and probably falls into the Senior Commissioner’s category of an iconic view. The protection of this landmark was of considerable concern to many of the residents who wrote to the council objecting to the proposal.
23 Both Mr Lawer and Mr Thorne were of the opinion that the distant foreshore was also a significant and highly valued feature said to be an element that frames the ocean. Mr Drake disagreed, contending that it is little seen and is not a significant feature. In this context I was not shown any written resident submission in relation to this feature although oral resident evidence given on site was to the effect that it is important and valued. The remaining views, being those of the Pacific Ocean and the other foreshores, are plainly also significant elements in the view sharing analysis.
24 In Tenacity the protection of views across side boundaries is recognised as being more difficult but in this case taking into account the particular provisions of the DCP that make no exceptions in this regard I do not accept that this is a reason to suggest that the views across the subject property from 16 Matthew Street should be given less significance. Particularly considering the 5 m provision of the DCP I do not accept that it is an unrealistic expectation to retain some side views although I do agree that the expectation to retain sitting views would be unreasonable.
25 The third step in Tenacity requires the assessment of the extent of any view loss. For the purposes of this analysis it was accepted that a viewing position in the middle of the rear elevated deck associated with living areas at 16 Matthew Street can be utilised as being representative, noting that any impacts variously increase or decrease depending on where the viewer stands on the deck. It was not in dispute that the proposal does not affect views of Elephant Head or the cove, the ocean and the foreshore to the south. However, it obstructs some ocean views and about two-thirds of the views of the distant foreshore (on the horizon) to the north.
26 The fourth step involves the assessment of the reasonableness of the proposal in the light of the non-compliance with the relevantly applicable control. There was no suggestion that other than in terms of height and associated impacts on views that the proposal is unreasonable. Indeed, but for the loss of views caused by the development its height would meet the otherwise applicable 8 m height control. However, by failing to ensure that views remain unaffected as required by the DCP one can argue that the proposal is, prima facie, unreasonable but, as already indicated, this needs to be considered in the light of the provisions of the DCP that provide for view sharing.
27 In their evidence Mr Lawer and Mr Thorne both believe that whilst the view loss impact could be described as moderate it was of such significance, particularly taking into account the substantial loss of views of the distant foreshore to the north and the loss of some ocean views, as to make the proposal unacceptable. They reached this conclusion taking into account the importance of the foreshore element of the available views to the owner of the property and, as they describe it, the manner in which it frames the ocean.
28 Mr Drake disagreed, suggesting that this feature on the horizon is little seen and that the ocean is nevertheless framed by the sky.
29 The abovementioned council town planners report assessed the proposal in the light of the view sharing planning principle in Tenacity, finding it to be acceptable. The report also states that:
- “It is recognised that there will be some loss of views as a result of this proposal. However, the views that will be partially obstructed are shared views which primarily exist over the development site. These views over adjoining properties should not be relied on as primary views. Adjoining dwellings will continue to maintain views of the water irrespective of the development.”
30 As I have already indicated, I do not agree with what the council officer says about views over adjoining properties but taking this and all of the other evidence into account I have been persuaded that the proposed development for the most part represents a reasonable sharing of views as sought by the DCP. Whilst I can understand that the distant views of the northern foreshore are important, I do not accept that they are anywhere near as significant as the close views of the ocean, Elephant Head and other foreshores. It seems to me that this aspect of available views only really came to light as part of these proceedings. Had it been so important I am sure that it would have been referred to in the numerous submissions made to the council in a similar manner to the references to the need to protect Elephant Head. Despite this, I do accept that it is significant bearing in mind that Mr Drake accepted that the loss of this particular view could have a “minor-moderate impact”.
31 In Tenacity the Senior Commissioner also asks if a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. Having reviewed the plans for which the applicant seeks approval I referred the parties to a number of aspects of the design that I thought, if modified, would reduce the view impact and probably produce a more acceptable sharing of views. In this regard I noted that a marginal lowering of the building may not be of much assistance but that a shortening of the building would provide increased views of the horizon and of the northern foreshore. To facilitate this, the link between the extension and the house proper could be shortened perhaps with the stairs incorporated into the house or with a shortening of the extension itself by moving the eastern corner a distance to the west thus extending available ocean and northern foreshore views.
32 In the circumstances I have decided that subject to a condition requiring the shortening of the proposed extension by 1 m towards the west the development would be an appropriate response to the provisions of the DCP in terms of impacts not only on 16 Matthew Street, but also in relation to the relatively insignificant impacts on other private and public properties.
33 As for the question of precedent, I do not accept that in the circumstances of this case any concern in this regard arises. Any other applications for development of nearby properties will need to be dealt with on their own merits and in the light of the relevantly applicable planning controls which of course include the matters dealt with in this judgment.
34 The remaining general concerns of the resident objectors were not pressed by the respondent. There was no expert evidence in relation to those concerns other than the council officer’s report that did not find that any of those matters to be of determinative significance.
35 I have therefore decided to uphold the appeal and grant development consent subject to the conditions proposed by the council together with the additional conditions as proposed by the applicant in Exhibit D which exhibit will be retained by the Court together with Exhibit A, the plans, and Exhibit 8, the conditions.
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- T A Bly
Commissioner of the Court
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