Featurewood Homes Pty Ltd v Shoalhaven City Council
[2004] NSWLEC 623
•11/04/2004
Land and Environment Court
of New South Wales
CITATION: Featurewood Homes Pty Ltd v Shoalhaven City Council [2004] NSWLEC 623 PARTIES: APPLICANT
Featurewood Homes Pty LtdRESPONDENT
Shoalhaven City CouncilFILE NUMBER(S): 10857 of 2004 CORAM: Brown C KEY ISSUES: Development Consent :- s 96 modification - whether substantially the same development - overlooking - streetscape - heritage LEGISLATION CITED: Environmental Planning and Assessment Act, 1979
Shoalhaven Local Environmental Plan 1985
Shoalhaven Draft Local Environmental Plan (Amendment 212)CASES CITED: DATES OF HEARING: 04/11/2004 EX TEMPORE
JUDGMENT DATE :11/04/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr P Moggah, solicitor
SOLICITORS
Kearns & Garside
Mr G Gleeson, solicitor
SOLICITORS
Morton & Harris
JUDGMENT:
JUDGMENT
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
4 November 2004
JUDGMENT10857 of 2004 Featurewood Homes Pty Ltd v
Shoalhaven City Council
1 This is an appeal against the refusal by Shoalhaven City Council (the council) of an application to modify Development Consent No. DA 02/1695 for the erection of two single storey attached dwellings at 143 Princes Highway, Milton (the site). The proposed dwelling is partially constructed up to the floor slab and is located behind an existing dwelling used for commercial purposes.
2 The modification application seeks to amend the level of the floor slab of the approved plans (to that currently constructed) by 845 mm and consequently the overall height of the dwelling by the same amount.
3 The council filed a Statement of Issues that related to:
1. whether the proposed modification is substantially the same development as that approved,
2. overshadowing,
3. loss of privacy,
4. visual impact, and
5. heritage impact.
4 The issue of public interest is addressed as part of the discussion on the above issues.
5 Mr Stephen Hills provided evidence for the council and Mr Stephen Richardson provided evidence for the applicant. Both are town planners. A joint expert report was provided but took the matter little way in addressing the issues.
6 At the time of the original approval on 27 August 2002, the site was zoned Residential 2(b2) under the Shoalhaven Local Environmental Plan 1985 (the LEP). The subject site and surrounding properties have since been rezoned to 3(d) Business Commercial under the same LEP.
7 The council’s Medium Density Housing – Development Control Plan No. 71 (DCP 71) also applies to the proposed amendment.
8 The site is also subject to draft Shoalhaven Local Environmental Plan (Amendment 212) (the draft plan) dealing with heritage matters. The draft plan has reached an advanced stage and as such must be afforded weight in the assessment process.
9 Clause 96(1A)(b) of the Environmental Planning and Assessment Act 1979 states that the Court may modify a consent if it is satisfied that the development to which the consent is modified relates is substantially the same development as the development for which the consent was originally granted.
10 Mr Hill’s position on this issue is that the proposed modification is not substantially the same development as that previously approved. He notes the height was the subject of some discussion prior to the original approval and the change is a significant departure from the approved height.
11 Mr Richardson comes to the opposite conclusion. He states the height is the only difference between the original approval and the modification. The footprint, layout, appearance and nature remain identical.
12 On this matter, I agree with Mr Richardson. The modified plans seek to change only the height with all other parts of the proposed dwellings being the same as the original approval. I have little trouble in concluding on both a qualitative and quantitative assessment’ that the modification sought is substantially the same as the original approval.
13 Overshadowing is addressed in s 3.3.6 of DCP 71. Objective 02 seeks:
To avoid the potential for significant overshadowing of habitable rooms and private open spaces.
14 In terms of compliance with the objectives and the stated performance criteria, the relevant Acceptable Solution for this section states:
North facing living areas of neighbouring dwellings do not have their sunlight reduced to less than 3 hours of sun between 9.00 am and 3.00 pm on June 21.
15 The shadow diagrams provided by the applicant indicate that the above criteria are satisfied. I did not understand Mr Hills’ evidence to suggest that the additional height would create “significant overshadowing”. In fact, he honestly conceded that overshadowing, by itself, was not a significant issue.
16 Privacy is addressed in s 3.3.2 of DCP 71. Objective 03 seeks:
To protect the visual and acoustic privacy of nearby residents in their dwellings and private open space to protect visual and acoustic privacy.
17 The relevant Acceptable Solutions provides for:-
- Direct views between living areas, windows of adjacent dwelling should be screened where -
- ground and first floor windows are within a 9 m radius of any window in an adjoining dwelling or where other windows are within 12 m radius
- direct views from living rooms into principal areas of private open space are within a 12 m radius.
18 The issue for the Court is whether the additional height will create additional loss of privacy and whether those additional privacy impacts would warrant the refusal of the application.
19 There was agreement between Mr Hills and Mr Richardson that the original approval provided for overlooking of the adjoining rear yards whilst Mr Hills suggests that this overlooking will be exacerbated by the increased height, I am, not convinced that this raises the impact of overlooking to the level where it would support the refusal of the application.
20 The two adjoining properties consist of an art gallery to the south and a Salvation Army Hall to the north. I do not consider any loss of privacy to these properties, considering their respective uses, is to be an issue.
21 The properties directly to the rear and facing Wolseley Street will suffer no greater loss of privacy than in the original approved form. For this reason, the loss of privacy to these properties cannot be a reason to refuse the application.
22 In terms of visual impact, the increased visual impact of the additional height was seen by Mr Hills to relate to three separate areas; these being the adjoining properties, the Milton streetscape and the more distant views. All were seen to be unacceptable by Mr Hills although he concedes that the more distant views are not significant in themselves but add to the overall unsuitability of the modification.
23 Mr Richardson takes the opposite view and while acknowledging the added area of building that will be visible, he does not consider that this additional area is significant.
24 While the building will clearly be more visible because of the increased height, I am not convinced that this additional visibility is a sufficient reason for the refusal of the application for a number of reasons. Importantly, the modification still satisfies the requirements in cl 3.7 of DCP 71 for building design and specifically height and building envelope. The building between the proposed dwellings and the Princes Highway still largely blocks the views from the Princes Highway. For pedestrians and vehicles using the Pacific Highway, the increased height will not be observed above the building. The increased height can only be observed along either side of the building but as the proposed dwellings are over 30 m from the street and lower than the street level, the additional height will not be overly noticeable. Similarly the view from Gordon Street will not be overly conspicuously compared with the approved plans.
25 I accept the generally agreed position that the additional visual impact for more distant positions is not significant and not a matter that warrants the refusal of the application.
26 In terms of heritage impact, the subject site is not an identified heritage item. It is situated within the Milton Conservation Area and adjacent to buildings identified in the Shoalhaven Heritage Study as being of heritage significance but neither the Milton Conservation Area nor the properties identified in the Shoalhaven Heritage Study are identified in the LEP.
27 The Milton Streetscape is identified in the LEP. Clause 32A provides an objective for the streetscape. It seeks to “maintain and enhance the heritage character of the streetscape” and to ensure that new development is “compatible”. The Court must also take into account the general measures proposed to ensure that the objectives are met.
28 The draft plan identifies the Milton Streetscape at cl 20M. The draft plan also identifies both adjoining properties as heritage items. Clause 20G of the draft plan provides requirements for the development in the vicinity of a heritage item.
29 With the benefit of the site view, and even using the higher tests in the draft plan, I can comfortably include that the proposed modification will have no impact on the proposed heritage items.
30 They are sufficiently separated from the proposed dwellings to have little impact on their significance. The comments previously made on the impact on the Milton Streetscape are also relevant in the heritage assessment.
31 In considering the issues raised by the council, there are no issues that would warrant the refusal of the modification application. While the applicant offered to reduce to ceiling height within the building by 300 mm, I am not convinced that this is necessary for the reasons in the preceding paragraphs.
32 On the matters leading up to the appeal and the need for expert reports, I would say that the reports provided by Mr Hill and Mr Richardson were helpful but not necessary for the Courts consideration of the issues to be determined. The Statement of Issues, the Statement of Basic Facts and the council report provided a good outline of the issues to be addressed.
33 For these reasons, the orders of the Court are:
1. The appeal is upheld.
3. The exhibits are returned with the exception of Exhibits 1, 2, 8, A and B.2. The application to modify development consent DA 02/1695 for the erection of two attached dwellings at 143 Princes Highway, Milton, is approved and modified in the manner set out in Annexure “A”.
- ___________________
G T Brown
Commissioner of the Court
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