Hartog v Pittwater Council

[2006] NSWLEC 643

Land and Environment Court

of New South Wales

CITATION:

Hartog v Pittwater Council [2006] NSWLEC 643

PARTIES:

APPLICANT
Phillip Henry Richard Hartog

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10578 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- elevated plunge pool, acoustic impact, visual privacy, drainage, landscaping, site coverage.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 1993

DATES OF HEARING:

3/10/2006

EX TEMPORE JUDGMENT DATE:

10/03/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Hones, solicitor
of Hones Lawyers

RESPONDENT
Ms R. Dixon, solicitor
of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

3 October 2006

10578 of 2006 Phillip Henry Richard Hartog v Pittwater Council

JUDGMENT

1 This is a Class 1 Appeal No. 10578 of 2006 between Phillip Henry Richard Hartog and Pittwater Council in regards to the refusal of consent for an elevated plunge pool located adjacent and existing elevated depth of a house at No. 16 Pacific Road, Palm Beach.

2 The pool is to be accessed from the existing elevated deck and it will be below the windows to the living room on the upper floor of the house.

3 To the north is No. 26 Pacific Road and it is an adjoining dwelling having pitched clear glass roofs facing towards the subject house. The clear glass roofs give direct vision into three bedrooms and two bathrooms and a laundry and was built some years before the subject house.

4 The subject site is more or less near the top of the hill overlooking the Pacific Ocean and northwards towards Barrenjoey. The subject property and adjoining properties enjoy panoramic views. Whilst the site is accessed by a very steep driveway from Pacific Road, that serves approximately six other houses, the site itself is relatively level. The allotment is an irregular shape having an area of 792.3 sq m excluding the access handle from the street. The existing house is two storeys with a double car garage and is relatively new construction. Houses on the adjoining properties are one and two storey detached dwellings also.

5 There is minimal significant vegetation on the property that might be identified under the Pittwater tree preservation order. Screen trees on the boundaries have been planted and are in various stages of growth.

6 The locality is identified on the Part A4.12 Pittwater 21 Development Control Plan which outlines the context of the character of the Palm Beach locality in which the site is located. The character is described as primarily low density with one and two storey residences in a natural landscape setting. The desirable elements include the low-density character with the dominant bushland. The development should address the street to integrate with the public domain and be at the appropriate scale. The character also requires indigenous tree canopy and vegetation to be retained and enhanced to assist the development blending into the natural environment and enhance wildlife corridors, natural outcrops of rock, bushland and natural water courses are to be preserved.

7 The site is zoned Residential 2(a) under the Pittwater Local Environmental Plan 1993 and is designated area 1 under the Dual Occupancy Control 1993 Pittwater Local Environmental Plan, Pittwater 21 Development Control Plan and Interim Geotechnical Risk Management Policy for Pittwater, and Habitat Category 3 land.

8 The proposal was notified to the adjoining property owners and three submissions were received. No. 26 was you might say the principle objector. The overall concerns were:

• stormwater discharge into the public domain,
• landscaping,
• solar access,
• visual privacy,
• acoustic privacy,
• building colours, materials and construction,
• side and rear building line and
• site coverage

9 After some negotiation between the parties and prior to the hearing, the council filed the following Statement of Issues:

Excessive site coverage

1. Site coverage is excessive and the proposal will unacceptably reduce landscaping on; the site.

Particulars

(a) The existing site coverage is 48.53%, which is already greater than the 40% maximum site area permitted by the DCP control.
(b) The proposal increases the coverage, of the site by impervious surfaces to 51.2%.
(c) The proposal decreases the amount of landscaped area or the site to 44%. The proposal does not provide the minimum amount of landscaped area of 60% prescribed by the DCP.

Control

D12.10 Site Coverage - Environmentally Sensitive Land of Pittwater 21 DCP.

Unsatisfactory impact on acoustic privacy

2. The proposal will result in an unsatisfactory acoustic impact on 26 Pacific Road Palm Beach.

Control

C 1.6 Acoustic Privacy of Pittwater 21 DCP. Loss of Visual Privacy

3. The proposal will result in a loss of visual privacy to the occupiers of 26 Pacific Road Palm Beach.

Control

C 1.5 Visual Privacy of Pittwater 21 DCP.

10 Appearing for the respondent was:

• Ms R. Dixon, solicitor
• Mr G. Walsh, development officer, Pittwater Council

• Mr C. S. Barwick, consultant planner for Pittwater Council

11 The objector appearing was:

• Mr P. Kumin, resident of No. 24 Pacific Road

12 Appearing for the applicant was:

• Mr B. Hones, solicitor

13 Mr Kumin advised that his objection was primarily in regard to a proposal on Drawing 550.1 to remove part of the existing entrance driveway to replace it with lawn in order to achieve the landscape area. This seem to be quite an impracticable proposal since the driveway is a narrow shared driveway servicing a number of houses and the removal of the existing concrete would only cause a difficulty for both the subject site and the adjoining owners by the moving cars over the lawn area. The applicant deleted this part of the proposal and Mr Kumin said his objection was withdrawn.

14 The owner of No. 26 was overseas and could not attend however his daughter allowed us to inspect the interior of the house to observe visual privacy impacts. Prior to entering the site it was notable that from the subject house, when persons at No. 26 came into their rear courtyard adjoining the common boundary, voices at normal speaking levels could be clearly heard. The pool being between the two houses it is obvious that persons splashing, yelling and enjoying themselves in the pool would be clearly heard in the bedrooms at No. 26.

15 Mr Barwick in his report on the proposal was of the opinion that this activity would not be sufficient for refusal partly because the swimming pool is plunge pool only of some 2 m x 5 m in size which would not allow significant activity to occur.

16 In looking at the visual privacy matters Mr Barwick had concluded that there was an overlooking problem particularly at night when the rooms inside No. 26 would be illuminated and that the swimming pool should be lowered by 1 m in order to avoid persons in the pool being able to look over the edge and down into those rooms.

17 The applicant Mr Hones noted the amount of existing screen vegetation and the fact that from existing windows and the deck of the subject house there was already a certain amount of overlooking into the same rooms. The difference would be the pool would be closer and within the 9 m radius set by council controls for reasonable privacy to be achieved between neighbours.

18 The owners daughter of No. 26 allowed us to inspect the interior of the house. The applicant had surveyed in a yellow horizontal ribbon in the same location as the northern edge of the pool, from which observations might be made by a swimmer into No. 26. From the three bedrooms and from one of the two bathrooms this yellow ribbon could be clearly seem through the vegetation and it was obvious that what ever privacy existed by way of the intervening vegetation, there would a greater privacy loss due to persons in the pool.

19 Bearing in mind the planning principles established by the Court in Tenacity, I should disregard the screening capacity of the vegetation existing as it does have only a partial effect, and also I should ignore the proposed additional planting proposed by the applicant.

20 Therefore the only reasonable solution is to undertake the lowering of the pool as proposed by Mr Barwick. If the pool was lowered by a metre then persons in the pool would not be able to see into the rooms, or if they could, it would be only to a person’s head height. In two of the bedrooms it seemed to me, with the pool as proposed, one would be able to see persons in certain parts of the room below the waist level.

21 Turning back to the acoustic impact Mr Barwick had also recommended that the wet edge treatment proposed by the pool would result in a noisy cascade of water into the balance tank on the northern side facing No. 26. The noise of this could become objectionable but it was his experience that alternative designs of having a spill way design for the wet edge reduced the noise to almost nothing, and that this would be an acceptable solution along with lowering the pool.

22 In considering the plans to comprehend what the lowering of the pool would mean, it was clear that the subject plans really only dealt with the pool itself, and did not properly show the impact on the existing structures. For instance there is a swim-out in the pool proposed which overlaps onto the existing elevated terrace. The structural slab of that terrace shown in section AA of Drawing 550.3 appears far thicker than actual. The swim-out is shown as jack hammered into this concrete slab and the thickness shown would mean that part of the existing elevated slab, which forms the roof of the garage below, would be in fact be taken out completely, along with a substantial part of a concrete beam that spans across the back wall of the garage. The back wall does not appear to be load bearing. Within the back wall is a double glass door to the yard area, above which the proposed pool is to be suspended. There is no recognition on the plans of these glass doors or how they would be dealt with as they would be partially blocked by the proposed pool.

23 Other matters indicated showed on the plans that the wet edge treatment is only about two thirds the length of the northern side of the pool and yet in the elevation of that northern side there is no wet edge shown. Only in section does one see a minor lowering of that side of the pool so that the water would cascade over the northern side. In fact it is so close to the level of the rest of the top of the pool one would think any waves in the pool would over top all of the other edges. The drawings as they stand are insufficient for any consent, particularly if the lowering of the pool and a spill way wet edge is to be undertaken.

24 The other matters of concern to the objectors, such as the stormwater discharge, appeared to be related to an understanding that the pool would discharge into the existing stormwater drains, which are currently overloaded. The council assured me that any water from the pool being waste water, or overflow in times of rain, would be directed to the sewer.

25 In inspecting the site it was found on the southern side of the house there is a large broken stormwater pipe, which appears to take most of the rainwater from the roof. The obvious flow marks on the ground around the house show that stormwater flows around the side of the house onto the driveway and down hill into at least two of the adjoining houses. No doubt this is at least part of the source of their complaint, which is not part of this application.

26 In regards to site coverage, Mr Barwick concluded that the pool was in what amounts to a courtyard between the house and the garage and the side boundary garden, and that it has no significant impacts in the way of bulk. It does not occupy space where any significant vegetation exists and it actually occupies (being such a small pool) only 1% of the site area. As such I do not consider that the increase in site coverage would cause the objectives of the site coverage in the Development Control Plan to be any less achieved than they are with existing house as approved by the council.

27 Overall I have come to the conclusion that with the amendments suggested by Mr Barwick the proposal is acceptable subject to appropriate conditions. Amongst those there must be a deferred commencement condition to require the appropriate drawings to be prepared to satisfy the council that all matters have been properly dealt with.

28 Therefore the Orders of the Court are:

1. The appeal is upheld.

2. Deferred Commencement condition is granted to a swim-plunge pool at No. 16 Pacific Road, Palm Beach as shown on Drawing Nos. 550.1 issue B dated 23/02/06 and 550.2, 550.3, 550.4, 550.5, 550.6 all dated 24/10/05 all by “Outside Living” and geo-technical report by Jeffery and Katauskas P/L Ref: 19863ZRrpt dated 3/11/05 all as amended in red and as amended by the deferred commencement conditions and as further amended and built in accordance with the conditions in Annexure ‘A’ hereto.

3. The exhibits are returned to the parties except Exhibits A, B, C, D, E, F, G and 1, 2, 3 and 4.

___________________

K G Hoffman
Commissioner of the Court
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