Huolohan and Dickson v Sutherland Shire Council

[2005] NSWLEC 377

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Huolohan and  Dickson v Sutherland Shire Council [2005]  NSWLEC 377

PARTIES:
APPLICANT
Patricia Huolohan and Ian Dickson

RESPONDENT
Sutherland Shire Council

CASE NUMBER:     10329 of        2005

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act
Sutherland Shire Local Environmental Plan 2000

CORAM:        Hussey C

DATES OF HEARING:        11/07/2005

EX TEMPORE DATE:          11/07/2005

LEGAL REPRESENTATIVES

APPLICANT
Mr I Dickson, self represented

RESPONDENT
Mr C Mathieson, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

15 July 2005

10329 of 2005                    Patricia Huolohan and Ian Dickson  v 
  Sutherland Shire Council

JUDGMENT

Background

1. This appeal relates to council's refusal of a development application for a partially elevated garage situated at 52 Buchanan Avenue, Bonnet Bay.

1. The proposed double garage is to be located approximately 3.9 m from the road boundary, with the side boundary setback of approximately 1.5 m from the adjoining property to the east, (No. 54 Buchanan Avenue).  Because of the steeply sloping topography of the land, the garage is proposed to be partially suspended on piers, with the garage floor approximately 3.5 m above natural ground level.

1. As the garage is to be located at the proposed 3.9 m setback, this encroaches on the 7.5 m building line adopted by council and consequently the following issues have been raised:

   streetscape and neighbour amenity impacts,

   vegetation removal,

   landscape areas,

   public interest.

Planning controls

1. A detailed summary of the relevant controls is contained in the Statement of Basic Facts.  This shows that the primary control is the Sutherland Shire Local Environmental Plan 2000, under which the site is zoned Residential 2(e1) and is within a Foreshore Scenic Protection Area.  However the proposal is permissible with consent.

Sutherland Shire Local Environmental Plan 2000 

1. The objective of the 2(e1) zone is:

   A residential environment in an environmentally and visually sensitive locality:

   (a)where the scale, amenity and general character of the area is preserved, and …

   (b)…

   (c)which is protected from visually intrusive development, especially where buildings or works may be viewed from the waterways for on sites which contain significant vegetation or natural features which should be preserved, and …

2. Clause 30 of SSLEP 2000 states:

   When assessing the impact a residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied those matters have been adequately addressed by relevant documentation submitting to it:

   (a)the impact that the proposed development may have on adjoining development, buildings and open space on loss of sunlight, views and privacy,

   (b)the effect of the proposed development on the quality of the streetscape,

   (c)the cumulative impact of successive development on the general character the neighbourhood,

   (d)the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscape area,    

   (e)retention and enhancement of existing vegetation,

   (f)any adverse impact on the natural and built environment,

   (g)the location of the proposed development in relation to potential risks, including flights, bushfire and other hazards,

   (h)the impact that the proposed development may have on any public area or what a body from loss of sunlight, views and visual amenity.

3. Clause 32 deals with bushland protection requirements.

Development Control Plan for Dwelling Houses in 2(e) Residential Zones and Kurnell 

1. This DCP contains detailed development controls to supplement the LEP provisions.  In accordance with the stated objectives, cl 10 deals with the design and siting of dwellings so that dwellings are to be designed with regard to the site conditions, to minimise impact on the land form and the adjacent waterways.  Also, dwellings are to blend into the natural surroundings and to have regard to the amenity impacts on surrounding properties.

2. Clause 10.4 sets a building line of 7.5 m from the road.

Development Control Plan for Building Lines to Street

1. This DCP came into effect on 8 May 2001 hand its purpose is to ensure that structures built forward of the building line will:

   (a)Be compatible with the existing or planned streetscape;

   (b)Minimise impact on residential properties, public places, and the environment;

   (c)          Protect the public interest.
   

Draft Sutherland Shire Local Environmental Plan 2004
The evidence

1. Detailed evidence on behalf of council was presented by:

   Mr G. Hand, council’s planning manager,

   Ms. K. Hall, council’s landscape officer,

   Mr P. Anderson, council’s engineer.

   Mrs Hatton, a neighbour from 54 Buchanan Avenue, also made submissions.

2. A detailed submission was made by the applicant's and that was marked Exhibit B.

1. From the evidence submitted, it is apparent the applicants have given some consideration to the impacts of this proposed garage, which is required to provide security for their vehicles.  In support of their application, they have identified other similar type elevated garages, which they say sets a precedent for this type of proposal.  These other garages have been inspected on the view.  Apart from this, the applicants agree that they are prepared to fill in the under storey of the garage, landscape it and utilise recessive colours in order to minimise the visual impacts.

1. From my assessment of the evidence, it is also apparent that the current controls seek to regulate garages structures, which are proposed within the building line area.  In this regard, I accept Mr Hand’s opinion that the appropriate context for the visual catchment is the relatively discreet section between Roosevelt Place the end of the cul-de-sac.  I also accept his opinion that development on the lower side of the street has a different impact to that on the opposite higher side of the street, in this relatively steeply sloping topography.

1. On this basis then, the existing dwellings and other structures predominantly have setbacks well in excess of the prescribed 7.5 m building line.  Accordingly, this creates an obvious vegetative, landscaped setback area, which provides screening to the dwellings and their access ways.  These access ways are mainly aligned across the setback area, in order to achieve satisfactory gradients to their lower-level garages, carports.

1. However, the proposed enclosed garage, only has the 3.9 m setback, which results in a substantial part of the floor and side and rear walls being elevated.  As such, the proposal will be very obvious within the defined visual catchment area, and in my opinion not consistent with the amenity and visual impact objectives of the LEP and DCP.  Insofar as Mr Hand does not consider the proposal merit consent and has described the proposal as being alien in this context, I agree that it is certainly does not preserve the amenity and general character of the streetscape, to a reasonable degree as required by the various controls.

1. While there are some examples of garages/carports being erected forward of the building line, Mr Hand says that this generally only occurs when the topography of the site practically prevents some form of access way on the land.  As this is not the case in the current situation, because there is an existing driveway to the lower-level house, Mr Hand says that consideration should be given to some other alternative, which utilises this driveway, so as to provide for some form of garaging towards the western side of the land and at a lower-level, which minimises visual and streetscape impacts.

1. The associated controls also require any development to minimise impact on adjoining properties.  In this case, Mrs Hatton explained the effort her family has gone to landscape the front entry area to her house and how she considered the elevated garage would be visually out of character and create adverse impact on her property.  Having taken the opportunity to view the potential impacts on this property, I am satisfied that the height and bulk of the structure are excessive in this context, particularly considering the proximity of the front entry arrangements into Mrs Hatton's house.

Conclusions

1. Having considered the evidence and undertaken a view, I do not consider this application merits consent.  This section of Buchanan Avenue has a reasonably distinct character where the buildings on the lower side of the street observe relatively large setbacks, which contain extensive planting.

1. However the proposed garage, at the proposed 3.5 m setback and elevation will be very prominent in the streetscape because of its height and scale.  In my opinion, this proposal then does not demonstrate reasonable compliance with the objectives of this 2(e1) zone, where the general scale, amenity and general character is to be preserved.

1. Notwithstanding this, evidence was presented that an alternative location may exist on the western side of subject property.  This would likely involve utilisation of part of the existing driveway and the construction of a security garage at a lower-level, which would significantly reduce adverse streetscape impacts.  Even though this alternative may involve some encroachment into the 7.5 m building line, the discussions at the hearing indicate that this would likely have less adverse impacts than the proposal.  In the circumstances of this case, some consideration of the merits of a garage at this alternative location, is warranted prior to exercising any discretion to relax the existing planning controls for the site.

1. Therefore in balancing the competing private and public interests, it seems to me that the private interest to have the elevated security garage is unreasonable in the circumstances because those benefits outweigh the other public interest considerations of adverse impact on neighbouring properties and adverse impact on the streetscape.  Accordingly, I consider this particular application should fail because it does not demonstrate reasonable compliance with the LEP and DCP provisions.

Court orders

1.            The appeal is dismissed.

2.            The development application No. 04/1064 for the construction of an elevated garage at 52 Buchanan Avenue, Bonnet Bay, is     refused.

3.            The exhibits may be returned except for Exhibit A.

_______________________
R Hussey
Commissioner of the Court
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