Gelder Architects Group v Pittwater Council

[2004] NSWLEC 76

Land and Environment Court

of New South Wales

CITATION:

Gelder Architects Group v Pittwater Council [2004] NSWLEC 76

PARTIES:

APPLICANT
Gelder Architects Group

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11247 of 2003

CORAM:

Murrell C

KEY ISSUES:

Development Application :- alterations and additions to existing dwelling
impact on foreshore
bulk and mass of dwelling
landscaped area
setbacks

LEGISLATION CITED:

Pittwater Local Environmental Plan 1993
Development Control Plan No. LP 15
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

10/02/2004, 11/02/2004 and 12/02/2004

EX TEMPORE
JUDGMENT DATE :

02/12/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Goldsmith, solicitor
instructed by
Gelder Architects

RESPONDENT
Mr A Pickles, barrister
instructed by
Rachel Fife
of Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11247 of 2003

Murrell C

12 February 2004

Applicant

v

Respondent

Judgment

1. This is an extempore judgement in respect of an appeal against Pittwater Council for a development application at the property known as 1738A Pittwater Road, Bayview. The development application was submitted to the Council for a three-storey dwelling, which is described as alterations and additions to the existing dwelling. There are parts of the existing dwelling that would be retained in the proposal and would form the fabric of a future dwelling on the subject site. The proposal was submitted to the Council and an appeal was lodged initially against a deemed refusal. Subsequent to that time a refusal has been issued by the Council.

2. The dwelling house can be described as a two and three storey building on the foreshores of Pittwater. The Statement of Issues provided by the Council in these proceedings and the more significant issues are stated as: whether the proposed development will result in a building of unacceptable bulk, scale and height having regard to Council’s controls; and whether the proposal will have an unacceptable aesthetic appearance when viewed from Pittwater. Another issue in the proceedings is whether there is appropriate landscaping to soften the appearance of the development when viewed from Pittwater. The issues were also supported by particulars in terms of the planning controls and guidelines of the Council.

3. The subject site is on the foreshores of Pittwater with a frontage of some 20.5 m. The subject property is between the foreshore of Pittwater and Pittwater Road with the frontage to Pittwater Road of 18.5 m. The south-eastern boundary of the property is some 29 m and the north-western boundary some 38.5 metres, yielding a total site area of 917 square metres approximately. The land could be described as a transitional site rising from a flat area to a hillside area. The property immediately to the south of the subject site is on a very flat level block of land and the property to the north is elevated in terms of the slope rising from within the subject property and continuing to rise up the hill both to the north and west.

4. The issues in these proceedings need to be looked at in terms of the planning controls and for the purposes of this judgment the Pittwater LocalEnvironmental Plan1993 zones the subject site ‘Residential A’ and a dwelling house is permissible with consent in the subject zone. There are very few controls within the LEP itself pertaining to the development application. It is noted that the LEP picks up certain clauses of the 1980 Model Provisions for the foreshore. The plan defines the foreshore scenic protection area, mean high water mark, and the measurement of building height.

5. The Development Control Plan –Locality Plan 15 was adopted by the Council and has been in force since June 2003 in its current form. This DCP has a number of aims and objectives, those of relevance to this development application include: to ensure that future development has minimal effect on 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 indigenous vegetation shall be maintained and enhanced; and to minimise the impact of development when viewed from public places. There is no question that body of water known as Pittwater is a public place and public domain.

6. There is currently erected on the subject site a dwelling house that at one point is three storeys although it is predominantly a two-storey dwelling house, with garages to Pittwater Road. The site also is one that has a large fig tree in the front yard to Pittwater Road and it is now proposed that it be retained in the amended development application. It is important to note that the development application is as submitted to Pittwater Council excepting the applicant during the proceedings proffered that the boatshed could be deleted from the proposed development by way of a condition, and also that a Casuarina towards the northern boundary of the subject site, together with the mound, could be retained in a future landscaping plan. And it is with these changes that I have considered the development application.

7. Despite the fact that I have assessed the application on the basis of the boatshed as shown on the plan being deleted, by way of comment though I make the following observation on the boatshed element. In the court’s assessment it does not constitute a boatshed and it does not satisfy the provisions of Council’s controls with respect to a boatshed. The boatshed as shown on the plans, for all intents and purposes, would appear to be a part of the dwelling house as it is not only attached to the dwelling house but it has multi-glass louvred doors facing the water, some three to four metres from the foreshore, and double doors to the northern terrace and internal double doors to the billiard room. In my assessment it is not an element in the design that could be considered in the genre of a boatshed.

8. The DCP LP 15 contains a number of relevant provisions. The character evaluation of the DCP states that development controls for the area need to recognise that most developments have been designed to be sympathetic and ensure that no excessive developments are permitted. A 15 m foreshore building line applies to the subject site however, structures considered appropriate forward of that include swimming pools and boatsheds. It also contains provisions with respect to building, bulk, height and materials stating that most houses are two storeys and on more steeply sloping sites buildings should step down the escarpment and buildings should be designed so that development does not become visually obtrusive on the escarpment or the waterfront. Designs that reduce visual bulk, provide for side modulation and provide shade elements are encouraged and the retention and additional planting of vegetation also reduces visual impact of the bulk and scale of buildings.

9. Other relevant provisions in DCP- LP 15 relate to the existing and future character and the protection of native tree cover and the existing vegetation to be retained and enhanced by additional planting to reduce the visual impact of the built form to ensure that development blends in with the natural environment.

10. The provisions with respect to built form provide for a detailed survey plan to be submitted. A survey plan was submitted with the development application. The site coverage provision includes the following aims “to restrict the footprint of development on site; to enable the retention of natural vegetation; and facilitate planting of additional landscaping; and to minimise the bulk of buildings”. The control is for a total built upon area not to exceed 40%, the remaining 60% shall be landscaped. There is also a 6% concession with respect to single dwelling houses such that the built upon area including footpaths and other structures could be increased to 46%.

11. There are provisions with respect to side boundary setbacks and a ten metre building line to Pittwater Road, with variations to be considered where there are special circumstances as well as the 15 metre foreshore building line referred to above.

12. The building height is provided in clause 3.1.7, the maximum height is 8.5 m, however, sites with greater than 20% slope a height up to ten metres may be considered subject to other site constraints and provided such allowance does not lead to over bulky design that may adversely impact on neighbours and view loss. The document also contains a definition of natural ground level relevant to the proceedings.

13. There is a provision with respect to front fences. Council considers that the front fence proposed is not in accordance with the DCP provision that requires increased setbacks for fences with a height over one metre. The proposed fence is 1.8 m and the control requires an equivalent setback.

14. The Pittwater Waterways DCP 14 contains provisions with respect to boatsheds and this provides for a minimum dimension and of a simple structure. I will not go into great details with respect to this DCP given the fact that the applicant has elected to delete the boathouse component. (Although I note that the boatshed was not consistent with this DCP).

15. The Development Control Plan 21 was recently adopted by the Council as of 1 February this year, however, a savings provision states that: "any development application submitted before, but not finally determined when, this plan took effect for the land to which they relate are to be determined as if the previous development control plans continue to have effect and as if this DCP had been exhibited but had not been made”. In this regard the experts agreed to list the more relevant provisions of this plan, and in particular it is noted that the new DCP provides for a foreshore building line on the southern portion of the site at some six metres, this is comparable to the setback of the adjoining dwelling, increasing to 15 m on the northern boundary. It was agreed between the parties that whilst The new DCP is a matter that the court should take into consideration , however, given the savings provision and given the fact that the experts had both assessed the application in terms of the previous DCP that the new DCP should be given little weight, or minimum weight, in terms of the planning regime under which the development application is to be considered.

16. The proposal is for a building that rises to approximately some 10.3 m. There was an assessment of the slope of the land and in places the slope of the land is greater than the 20%, thereby the provision for the concession to ten metres can be considered. It is noted that the slope of the land on the northern portion where the northern wing of the proposed three-storey element of the development is, however, less than 20%.

17. The proposal is one that must be considered in the context of the planning regime established by the Council and this is made clear to us in the decision of Zhang v Canterbury Council, a decision of the Court of Appeal wherein his Honour, the Chief Justice, stated that the DCP’s must be a ‘focal point’ in consideration of development applications and ‘proper genuine and realistic consideration’ must be given to the provisions of development control plans.

18. I have assessed this development application with the benefit of a view undertaken in the presence of the parties at the commencement of the proceedings. I have also had the benefit of expert evidence and reports prepared by Ms D Laidlaw for the respondent Council and Mr Lance Doyle for the applicant. There were also joint statements prepared to assist the court in its deliberations of this matter. In terms of the controls as I stated I must use these as a focal point in my consideration of the development application. Clearly also the provisions of s 79C of the Environmental Planning & Assessment Act are relevant and of particular relevance to this development application is the suitability of the site for the development. It was submitted on behalf of the respondent Council that “the proposed development presents as an overly bulky building and one that is excessive in terms of its dominance on the foreshore of Pittwater”.

19. It is clear from the controls that they are designed to ensure that development does not dominate the foreshore. That is not to say that dwelling houses will not be visible on the foreshore and the lay of this parcel of land is such that any dwelling house would be visible and indeed the current dwelling house is visible on the foreshore. The merits assessment must also be made having regard to whether the built form is appropriate in terms of its dominance and mass having regard to the context in which the proposal is situated and the assessment against Council’s controls.

20. I will state at this point in my judgment that I have concluded that the proposed development is not appropriate for the subject site and in that regard I was persuaded by the evidence of the expert, Ms Laidlaw that “the proposed development is excessive and that it is a development which seeks to maximise its internal quality of accommodation at the expense of the visual quality of the waterfront and foreshore and views from Pittwater”.

21. The proposed dwelling will be read as substantially a three-storey building. It is noted that the southern portion is two-storeys however the rest of the development will be read as a dominant three-storey building sitting relatively close to the foreshore with. The fact that it is a three storey building in itself does not mean that the application fails but this particular development seeks to maximise or push the envelopes of both the height limits, the site coverage and the width of the development on the subject parcel of land. The development will be overly dominant. While the design provides articulation and modulation, and the use of verandahs and other components to provide for shadow elements, nonetheless, it is inappropriate for the subject site because it consumes too much of the site and it presents as a built form which is excessive for the subject parcel of land.

22. The 8.5 m and the ten m height limit concession in certain parts of the site would allow for certain elements to rise above a two storey height limit as such. The proposed development will however read as a predominantly three-storey building for the majority of its width across the block. It is noted that the retention of the Casuarina on the northern boundary will allow for the proposed knoll or rise in the landform where it adjoins the house to the north, and while this may assist, it is not sufficient to ameliorate the impact of the extensive three-storey component, especially when one has regard to the fact that the contour of the mound is some three metres which is the same level and approximate height of the floor of what is called the basement in the development application and above the ground level on the southern portion of the three storey component. From the lower terrace the proposal is some eleven and a half to 12 metres to the top of the roof. It is noted that the top storey is some 3 to 4.3 m (thereabouts) in height. This is not inappropriate in itself and does provide for design variation, however, it is inappropriate as a third storey on the subject site. In my assessment the proposed development is excessive for the site and location and whilst there are architectural design features of the building that have merit it must also be well-designed having regard to its context to ensure the built form does not dominate the site and the foreshore area.

23. The landscaping of the proposed development is one that is also not commensurate with the height and bulk of the proposed development. It would appear the landscape plan has taken its cues more from the property to the south rather than having regard to the fact that it is a transitional site, there is vegetation in front of dwellings on the northern side of the subject property and there it would certainly be the space to allow for the planting of canopy trees on the subject site, not a forest. The purpose of vegetation is to complement a development and in my assessment the landscaping as proposed is not one that would complement especially the bulk and height of the proposed development.

24. The landscaping on the property to the south is not a justification for the landscaping that has been proposed for this development where no canopy trees have been proposed. Granted it is now agreed that the fig on the Pittwater Road side which would also form an important backdrop to any future development has been agreed to by the applicant to be retained. Apart from one Casuarina, and in terms of its position this would be of limited use in terms of complementing the proposed built form when viewed from the foreshore, the proposed landscaping plan is not satisfactory in the court’s assessment. The applicant relies on the fact that no native vegetation is being removed, the controls are clear in that they call for enhancing vegetation as well, not just the retention of vegetation.

25. As I stated the proposed building in an architectural sense is attractive and has aesthetic appeal. However it is inappropriate in the Court’s assessment for the site and the Court must have regard to Council’s controls in terms of the LEP and DCP as its focal point for assessment. Similarly in the formulation of a proposal the controls should be the focal point for the design of a building.

26. With respect to the issue of the built upon area it is noted that the built upon area with deletion of the boatshed is some 51.6% inclusive of the boatshed and as originally submitted to the Council was 54%. And while there may be no magic in these figures, as put behalf of the applicant, nonetheless in combination when one looks at the built upon area, the site coverage, setbacks, the height and width of the development, together with the inappropriate landscaping the application fails having regard to the combination of these factors.

27. The controls must be read together and clearly any development of the subject site may encroach the foreshore building line, may encroach the height limit in certain places but in terms of this development as I said the boundaries have been excessively pushed to an unreasonable position that would make the development not consistent with the controls and development contemplated in Council’s planning regime. The built upon area has specific controls and it is the aims of those controls which I must also go to. Similarly the height control has aims and it is the aims of those controls also that the court must take into consideration. It is not just the numeric standard to be considered as variations to the DCP guidelines may be appropriate in certain circumstances. However, I must have regard to the intent of those controls and whether in fact the overall objectives are satisfied. And in my assessment in the overall objectives are not satisfied by the proposal before the court.

28. It is noted that there is a new development control plan number 21 and any future development application would have to be considered in the context of this and would have to be designed having regard to the provisions of that particular development control plan.

29. Furthermore, as assessed earlier, having regard only to s 79C(1)(c) of the Act -that is the suitability of the site for the development- the proposed development on a merits assessment fails.

30. The site coverage provision of 3.1.3 in DCP LP15 the site coverage aim is to restrict the footprint of development to enable the retention of natural vegetation. The proposal does that but it certainly does not provide for facilitating planting of additional landscaping and it does not minimise the bulk of the building when viewed from the public domain, the most important viewing point of this development, which is Pittwater itself. It is also noted that there is an extensive intertidal zone, which does have public access to it and therefore the development will be most conspicuous when viewed from the public domain.

31. The height provision includes an aim, that is to maintain building height below the existing tree canopy. The proposal achieves this as there is certainly a dramatic rise in the landform behind the subject site. The control being 8.5 m as I said is not in itself something that must be conformed to over the total development because there is some areas that are of a slope exceeding 20%, but the concession to ten metres can only be considered subject to other site constraints and to ensure that it does not lead to an over bulky design. In my opinion the proposal is an over bulky design in terms of its presentation to the foreshore. It is agreed that there is no adverse impact on neighbours or view loss from properties behind.

32. With respect to the issue of the front fence and the breach of the ten metre building setback from Pittwater Road that is not something that in the court’s assessment is fatal to the application. Clearly the subject site is one that is narrow in terms of its depth, that is the front foreshore through to the road boundary and there will therefore be a need for a carefully designed building with consideration of the suite of controls. The controls are there to ensure that development is not dominant in terms of the foreshore and provides for an appropriate fit in terms of the vision contemplated in Council’s planning controls. In the court’s assessment with respect to the frontage to Pittwater Road and the setback I am of the opinion by way of comment that the setback to Pittwater Road can be breached, having regard to the importance of ensuring that the presentation of any building to Pittwater is appropriate.

33. Therefore, on the basis of my overall assessment I agree with the conclusion of Ms Laidlaw that "the proposal introduces an unsatisfactory impact of bulk in terms of the apparent height, width and design and setbacks in this prominent and sensitive foreshore waterfront environment and the additional three storey element to the northern portion of the site will create a dominant element for the subject proposal". It is recognised that the current dwelling on the subject site does have a three-storey component but it is confined to one area of the site. There are setbacks with an increase in height from both the waterfrontage and also the side boundary with the current development. Clearly the subject site is capable of being developed with a new dwelling or extensive alterations and additions, however, the current proposal in my assessment seeks to excessively provide for a development, which will dominate the foreshore without any regard to how the impacts may be ameliorated. In that regard I also note that the Council officer’s report concluded that the proposal was one that resulted in the additional bulk being unsatisfactory in terms of the foreshore building line and the three storey component to the northern portion of the site.

34. As I said it is a combination of factors, which has led me to the conclusion that the proposal is not appropriate for the subject site. That is not to say that elements of the design of the building do not have merit, but the building is inappropriate for this particular location. Therefore on the basis of my assessment the orders of the court are:

1. The appeal in respect of the property known as 1738A Pittwater Road, Bayview is dismissed.

2. The development application submitted Pittwater Council for alterations and additions to a dwelling house on the above site is refused development consent and

3. The exhibits may be returned.

_______________________

J S Murrell

Commissioner of the Court

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