Iloski v Sutherland Shire Council

Case •

[2011] NSWLEC 1139

•

01 June 2011

Land and Environment Court


New South Wales

Medium Neutral Citation: Iloski v Sutherland Shire Council [2011] NSWLEC 1139
Hearing dates:13,14 April 2011
Decision date: 01 June 2011
Jurisdiction:Class 1
Before: Brown C
Decision:

Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION - alterations and additions to existing dwelling - whether SEPP 1 objections well founded for breaches of gross floor area, building height and landscaped area development standards - impact on the heritage significance of the heritage item on the adjoining property
Legislation Cited: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
State Environmental Planning Policy No 1
Cases Cited: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:Principal judgment
Parties:

APPLICANT
Natayle Iloski

RESPONDENT
Sutherland Shire Council
Representation:

Counsel:
APPLICANT
Mr A Galasso SC

RESPONDENT
Mr M Wright, Barrister
Solicitors:
APPLICANT
Maddocks Lawyers

RESPONDENT
Sutherland Shire Council
File Number(s):10956 of 2010

Judgment

  1. COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council (the council) of Development Application No 10/0608 for alterations and additions to an existing dwelling at 6-8 Kangaroo Point Road, Kangaroo Point (the site). The alterations and additions provide for an additional level to accommodate three additional bedrooms and associated facilities and occupy most of the length and width of the existing dwelling house footprint.

  1. The contentions raised by the council relate to

  • view loss
  • unacceptable impact on the heritage significance of the adjoining heritage listed dwelling at 10-12 Kangaroo Point Road, and
  • breaches of the building height and gross floor area development standards

  1. The council did not press contentions relating to the impact on the heritage significance of identified heritage boatshed and walls on the site and overshadowing of the courtyard area of10-12 Kangaroo Point Road. The council also did not press the breach of the landscaped area development standard.

The site

  1. The site comprises two separate lots, being Lots 22 and 23 in DP 7269. It has a frontage of 30.48 m to Kangaroo Point Road, a northern side boundary of 97.84 m and a southern side boundary of 80.47 m. The eastern rear boundary fronts directly onto the Georges River. The site area is 2,681 sq m.

  1. The site falls from Kangaroo Point Road at around 10 per cent to the Georges River where the grade is much steeper. The average grade of the site is around 20 to 25 per cent. The front yard is landscaped and the rear yard, facing the Georges River, has an elevated patio and swimming pool area and an elevated grassed area. The foreshore area between the elevated grassed area and the Georges River contains a boat shed, disused swimming pool and retaining walls and some scattered vegetation.

Relevant planning controls

  1. The site is located in Zone 1 Environmental Housing (Environmentally Sensitive Land) under Sutherland Shire Local Environmental Plan 2006 (LEP 2006). The proposed development is permissible with consent in this zone. Clause 17 applies as the site is traversed by a foreshore building line although the council raises no contentions in relation to this clause. Clause 33 provides building height requirements. Clause 33(4)(a) provides for a maximum two storeys, cl 33(b)(i) provides for a height measured to the ceiling of 7.2 m and cl 33(b)(ii) provides for a maximum height of 9.0 m. Clause 35(5) provides for a maximum gross floor area of 771.2 sq m. Clause 54 provides heritage provisions.

  1. It was agreed that the proposed development does not satisfy the development standards for height and gross floor area and the applicant has submitted objections under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) to show why strict compliance with the development standards is unreasonable or unnecessary in the circumstances of the case. The variation to the minimum landscaped area development standard was also subject to a SEPP 1 although the variation was not opposed by the council who found that the SEPP 1 objection was well founded.

  1. Sutherland Shire Development Control Plan 2006 (DCP 2006) applies. Clause 15 relevantly provides requirements for views.

SEPP 1 - Building density

The requirements

  1. Clause 35(5) provides a maximum gross floor area based on a formula contained within the clause. The town planner for the council, Ms Debbie Pinfold, and the town planner for the applicant, Mr Andrew Minto agree that the maximum gross floor area for the site is 771.2 sq m.

  1. The objectives for the building density in cl 35(2) are:

(2) Objectives The objectives of this clause are as follows:
(a) to ensure that development is in keeping with the characteristics of the site and the local area,
(b) to provide a degree of consistency in the bulk and scale of new buildings that relates to the context and environmental qualities of the locality,
(c) to minimise the impact of buildings on the amenity of adjoining residential properties,
(d) to ensure, where possible, that non-residential buildings in residential zones are compatible with the scale and character of residential buildings on land in those zones.

The evidence

  1. Ms Pinfold and Mr Minto disagree on the extent of the exceedence of the 771. 2 sq m gross floor area development standard. Ms Pinfold calculates the gross floor area at 1009.517 sq m or a variation of 230 317 sq m (or 33 per cent) whereas Mr Minto calculates the gross floor area at 911.25 sq m or a variation of 140.005 sq m (or 18 per cent). The difference in the calculations is based on whether certain areas should be included within the definition of "basement" for the undercroft and lower ground floor levels and whether stairs should be included as gross floor area for the ground floor and the first floor levels.

  1. Mr Minto adopts the SEPP 1 objection although he did not prepare it. The SEPP 1 objection addresses the variation to the gross floor area development standard in the manner set out in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46. He states that the variations are acceptable in this case as the additional gross floor area will not unreasonably impact on:

  • the character of the area as viewed from the adjoining waterway streetscape or surrounding public spaces,
  • views,
  • solar access to adjoining properties,
  • the heritage significance of the adjoining heritage item, and
  • the height bulk and scale of surrounding development.

  1. For these reasons, Mr Minto states that the variation to the gross floor area development standard is not unreasonable or unnecessary in the circumstances of the case.

  1. Mr Pinfold states that the proposed development does not satisfy objectives (a), (b) and (c). Objective (a) addresses characteristics of the site and the local area and objective (b) addresses the bulk and scale of new buildings and the relationship with the context and environmental qualities of the locality. In relation to these objectives, Mr Pinfold states that:

  • the additional gross floor area is contained in a non compliant third storey and will be visible from both the street and the waterway
  • the width of the proposed addition results in a building of institutional scale
  • the proposed third storey element, some 24 m across the frontage of the site is not characteristic of the street
  • the proposed third storey element will have a multi-storey appearance from the water, and
  • the bulk and height will have an adverse impact on the adjoining heritage item

  1. Objective (c) addresses impact on adjoining residential properties and Ms Pinfold states that the proposed third storey contributes to the overshadowing and loss of privacy amenity impacts on the adjoining property.

  1. For these reasons Ms Pinfold concludes that compliance with the gross floor area development standard is unreasonable or unnecessary in the circumstances of the case.

Findings

  1. Winten asks a number of questions. T he first question is whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard and Mr Minto and Ms Pinfold appropriately adopt the objectives from cl 35(2) . The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

  1. This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:
to encourage -
(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land.

  1. The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

  1. While Ms Pinfold and Mr Minto disagree on the extent of the breach of the gross floor area development standard, I am satisfied that it is not necessary to establish which of the calculations is correct. Both accept that there is a breach and I accept that the breach is substantial even if Mr Minto's more conservative calculation is relied on.

  1. In considering the relationship of the proposed development in this context, the Court had the benefit of a site view, including Kangaroo Point Road and observations from the Georges River and from Bald Face Point Reserve. If the proposed development is tested against the objectives of the development standard I agree with the general conclusions of Ms Pinfold. Objectives (a) and (b) are similar in that they seek a development that, in terms of bulk and scale, relates to its context and the local area. This context must include its relationship with the adjoining heritage item, the presentation to the street, the Georges River and Bald Face Point to the east on the opposite side of the Georges River.

  1. The locality is characterised exclusively by single and two storey dwellings with those properties on the eastern side of Kangaroo Point Road having a frontage to the Georges River. These dwellings take advantage of the views of the Georges River with dwellings generally stepping down the steep part of the site between Kangaroo Point Road and the foreshore building line area. Multiple levels of some dwellings can be seen from the Georges River. Some dwellings are constructed over two allotments, such as the proposed development and the adjoining heritage item, however the majority of dwellings are located on a single allotment.

  1. From Kangaroo Point Road, the existing dwelling presents largely as a single storey structure although a two-storey form can be seen when looking down the driveway to the garages. Putting aside the question of height, the proposed development will present as a two storey form from most locations but three storeys when the garages are visible. In my view, the issue of bulk and scale arises principally from the extent of the additional storey that extends the full 27.5 m width of the existing dwelling except for a 1.9 m setback on the southern end. Even though I accept that the applicant cannot reasonably be penalised for the fact that the dwelling occupies two allotments, this nonetheless raises the question of bulk and scale, particularly when the proposed additions covers most of the two allotments. Irrespective of the ability to use both allotments, the proposal still needs to be measured against other residential development in the locality. On this measure, there are no other dwellings in the locality that display a similar bulk and scale.

  1. When viewed from the Georges River and Bald Face Point Reserve the additional level is clearly visible. Again, the extent of the additional level is a significant feature. When combined with the clear perception of three storeys that forms a strong vertical elevation (as distinct from stepping down the steep site for other houses in the locality) I can comfortably conclude that the proposed development displays excessive bulk and scale in its context, even ignoring the undercroft area, the prominent pool and lower lawn areas and their substantial sandstone retaining walls that are also visible from the Georges River and Bald Face Point Reserve.

  1. Also on bulk and scale, I do not accept the argument that as the proposed maximum ridge height of RL 35.73 is lower than the ridge height of the adjoining heritage item of RL 35.90 that this supports the proposition that the bulk and scale of the proposed additions is consistent with the adjoining dwelling and dwellings in the locality. At present, there is consistency with the eave height of the dwelling on the site and the heritage item to the south. This relationship will be lost with the additional floor. The heritage item has a steeply pitched roof, that is a feature of its heritage significance, and the reason for its ridge height of RL 35.73. I do not accept that it is valid to simply compare the relative levels of the ridgelines of the adjoining roofs and not compare the bulk, scale and mass created by the additional floor with the existing roof form of the heritage item. In my view, there can be little doubt that the proposed additional floor has significantly greater mass, bulk and scale than the existing roof form of a heritage item notwithstanding the similar overall heights.

  1. As set out later in the judgment I have also found that the proposed development has an unacceptable impact on the heritage significance of the adjoining heritage item.

  1. With the benefit of the site inspection, including the adjoining heritage item, I am satisfied that there is no conflict with objective (c) that requires development minimise the impact of buildings on the amenity of adjoining residential properties.

  1. For the reasons set out in the preceding paragraphs, I find that compliance with the gross floor area development standard is not unreasonable or unnecessary in the circumstances of the case and that the SEPP 1 objection is not well founded. It follows that of the development application must be refused for this reason however I will briefly deal with the other issues in dispute.

SEPP 1 - height

The requirements

  1. Clause 33(4) provides that:

A building must comply with each of the following:
(a) the building must not comprise more than 2 storeys,
(b) the building must not exceed the following:
(i) a height of 7.2 metres, as measured vertically from ground level to any point on the uppermost ceiling in the building,
(ii) a height of 9 metres, as measured vertically from ground level to the highest point of the roof of the building.

  1. The objectives for building height in cl 33(2) are:

(2) Objectives The objectives of this clause are as follows:
(a) to ensure the scale of buildings:
(i) is consistent with the desired scale and character of the street and locality in which the buildings are located, and
(ii) complements any natural landscape setting of the buildings,
(b) to allow reasonable daylight access to all buildings and the public domain,
(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,
(e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings on land in those zones

The evidence

  1. When the proposed development is compared to the development standards in cl 33(4), Ms Pinfold and Mr Minto agree that the proposed development is three storeys (two storeys required by cl 33(4)(a)), has a height of 9.0 m (7.2 m required by cl 33(4)(b)(i)) as measured vertically from ground level to any point on the uppermost ceiling in the building, and a height of 10.9 m (9 m required by cl 33(4)(b)(ii)) as measured vertically from ground level to the highest point of the roof of the building.

  1. Mr Minto again adopts the SEPP 1 objection although he did not prepare it and addresses the variation to the height development standard in the manner set out in Winten . He states that the variations are acceptable in this case as:

  • there is no adverse impact on the adjoining heritage property at 10-12 Kangaroo Point Road
  • there is no unreasonable view loss from 3 and 5-7 Kangaroo Point Road
  • the increased overshadowing on 10-12 Kangaroo Point Road is not unreasonable
  • there is no unacceptable visual impacts when viewed from the northern outdoor living area of 10-12 Kangaroo Point Road
  • when viewed from the street, the proposal will present as a two-storey built form having a height, bulk and scale consistent with the prevailing character of the streetscape, and
  • the definition of ground level for determining the height disadvantages the site, given the existing excavation

  1. For these reasons. Mr Minto states that the variations to the height development standards are not unreasonable or unnecessary in the circumstances of the case.

  1. Mr Pinfold comes to a different conclusion. She states that the proposed development does not satisfy objectives (a)(i), (b) (c) and (d). Objective (a)(i) addresses consistency with the desired scale and character of the street and locality. Mr Pinfold states that the proposed development adversely impacts the character of the street by diminishing the impact on the adjoining heritage item from the waterway. It is also not characteristic for a building to be stepped down the site to the waterway to also have a third storey, particularly 24 m in width. The proposal also does not contribute to the achievement of the desired character of the locality that relates to its natural qualities rather than built form. The concerns expressed by Mr Pinfold on the potential heritage impact shared by the council's heritage expert Ms Claudia Miro.

  1. Objective (b) addresses reasonable daylight access to all buildings and the public domain and Mr Pinfold states that the proposal fails to allow reasonable daylight access to the adjoining property although on submission of further plans, I did not understand this concern to be pressed.

  1. Objective (c) addresses impacts of adjoining on nearby properties and Ms Pinfold raises particular concern over loss of views from 3 and 5-7 Kangaroo Point Road as well as overshadowing and visual impact on the primary outdoor living area of 10-12 Kangaroo Point Road.

  1. Objective (d) addresses visual impact from adjoining properties and public areas and Ms Pinfold reiterates her concerns over the overshadowing and visual impact on the primary outdoor living area of 10-12 Kangaroo Point Road.

  1. For these reasons Ms Pinfold concludes that the variations to the height development standards are unreasonable or unnecessary n the circumstances of the case.

Findings

  1. Height objectives (a)(i), and (d) are similar to the building density development objectives (a) and (b) that relate to the form of the building and how it relates to its context and the local area. While the words are different in clauses, I am satisfied that the meaning is generally the same. A reference to "the desired scale and character of the street and locality" in cl 35(4) is similar to the words " in keeping with the characteristics of the site and the local area" and "consistency in the bulk and scale of new buildings that relates to the context" in cl 33(2). This relationship has been addressed previously (see paras 22 to 25) where it was found that the proposed development was unacceptable when viewed from the street, the Georges River and Bald Face Point Reserve. The same conclusion must be reached for height objectives (a)(i), and (d).

  1. Similarly, I accept that objectives (b) and (c) that relate to impacts on adjoining or nearby properties have the same general meaning as objective (c) in cl 35(2) (c), with the exception of the reference to loss of views which is addressed in the following paragraphs. Putting aside the issue of view loss, I am satisfied that there is no conflict with objectives (b) and (c).

  1. View loss was addressed by Ms Pinfold for the council and Dr Richard Lamb for the applicant. The properties that will experience view loss from the development are located on the opposite side of Kangaroo Point Road to the site at 3 and 5-7 Kangaroo Point Road.

  1. The property at 5-7 Kangaroo Point Road is a single storey dwelling but with development consent for a second storey. Ms Pinfold and Dr Lamb agree that no views are available from the ground floor area of 5-7 Kangaroo Point Road over the existing dwelling on the subject site and that the existing views through the side setbacks will be retained. Ms Pinfold and Dr Lamb also agree that there are two view corridors potentially available from the first floor of the approved second storey; to the north east and south east. If the appeal were upheld, any view loss would occur within the north east view corridor. The effected views will extend along the entire length of the proposed development, including parts of the Georges River and the far shoreline of Blakehurst. Dr Lamb considered that, by itself the amount of view loss is not so severe as to be unacceptable whereas Mr Pinfold considers the impact is unacceptable because the view loss arises from a proposal that does not comply with the height or density development standards.

  1. For 3 Kangaroo Point Road, Ms Pinfold and Dr Lamb agree that partly filtered views to the north west, north east, east and south east are available to a varied extent from the balcony and living area. The views to the north west, south east and north east will be unaffected by the proposal. Views of Tom Ugly's Bridge and Captain Cook Bridge and a headland in a south east direction will be lost. Dr Lamb states that the view is oblique to the predominant orientation of the dwelling and is significantly screened by foreground trees. Overall, Dr Lamb concludes that the view loss is acceptable. Ms Pinfold states that the view loss is unacceptable in the circumstances of the case, particularly the loss of "iconic" features such as Tom Ugly's Bridge and Captain Cook Bridge.

  1. Ms Pinfold and Dr Lamb both rely on the principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 for their conclusions but with differing results. There was no disagreement that the potential view loss from 3 and 5-7 Kangaroo Point Road was the direct result of the width and height of the new first floor addition. While the issue of view loss is not critical given the inadequacies with density and height identified in the preceding paragraphs, I agree with Mr Pinfold that any view loss becomes difficult to justify when it is the direct result of breaches of development standards, particularly, as in this case, height and the building density specifically impact on view loss. In my opinion, the greater departure from the development standard or standards; the greater difficulty in supporting any view loss irrespective of the views to be effected, what part of the properties of views obtained and the extent of the impact. This falls squarely within the fourth step in Tenacity.

  1. The proposal is also in conflict with the objectives for views in cl 15.a.1 of DCP 2006 in that the proposal does not "minimise loss for neighbouring properties" (objective (a)) and provide "view sharing between new and existing development" (objective (c)).

  1. In this case, the proposal breaches development standards for the number of storeys, building height and building density and these breaches support a finding that the proposed development is in conflict with that part of objective (c) relating to loss of views.

  1. For the reasons set out in the preceding paragraphs, I find that compliance with the building height standard is not unreasonable or unnecessary in the circumstances of the case and that the SEPP 1 objection is not well founded. It follows that of the development application could be refused for this reason alone.

Heritage

The heritage item

  1. The property at 10-12 Kangaroo Point Road is identified as a heritage item in Schedule 6 of LEP 2006. It is known as "Green Gables". The Inventory Sheet [Item B304] identifies the significance of the heritage item as:

Good, early Post-War example of a "Tudorbethan" style, essentially intact. One of the more substantial residences built in the Shire during its first major growth period. Local significance.

  1. The Physical Characteristics are described as;

Description: Grand mention in light textured brick. Complex form with a attic storey. Steep pitched terra cotta tiled roof. Early Post-War version of the "Tudorbethan" style. Half timbered gables. Recessed entry below main gables. Outstanding bay window above. Excellent detail including timber work and leadlight.
Modifications: Sympathetic site addition including garage.

The statutory provisions

  1. Clause 54 provides heritage provisions. Clause 54(1) provides objectives and relevantly states:

( a) to conserve the environmental heritage of Sutherland Shire,
(b) to conserve the heritage significance of heritage items, including associated fabric, settings and views,
(h) to limit inappropriate and unsympathetic development in the vicinity of cultural heritage items.

The evidence

  1. Ms Miro provided evidence for the council and Ms Susan O'Neill provided evidence for the applicant. Ms Miro states that the proposed development has a negative and unacceptable impact on the heritage significance of the heritage item. This takes the form of the excessive height that spans the frontage of the two lots and the excessive bulk and scale that will obscure the features of the heritage item and dominate the streetscape. Ms Miro states that the prominence of the pitched roof and the distinctive green colour of the roof tiles are inherently part of its landmark qualities and easily identified from the rear of the site, the waterway and Bald Point Reserve. These features should be conserved protected and enhanced and not diminished by unsympathetic development.

  1. Ms Miro notes that the proposed ridge height is only 170 mm lower than the ridge height of the heritage item, and in her opinion the difference in height cannot be distinguished from the street and does not reduce the visual prominence of the proposal. The additional setback of 1.9 m from the heritage item is insufficient and fails to create a substantial visual separation between the two buildings. The dominance of the heritage item roof line is fundamental to the understanding of its significance and when viewed from the street, the proposed development will result in a visually dominant element of strong horizontal proportions and greater scale and bulk than the heritage item and will dominate the heritage item and adversely impact on its street presence.

  1. Ms O'Neill believes that the design of the proposed development does not have an adverse impact on the heritage item. She states that it has been designed to appear as a deferential addition to the original house, by retaining a portion of the existing roof form on three elevations and by using a smaller footprint when compared to the existing floor plan. This has the effect of creating a cascading roof, diminishing the overall scale of the dwelling as it steps inward on the upper level. Ms O'Neill notes that the rear elevation of the heritage item, viewed from the water and Bald Point Reserve has no distinguishing architectural features. The alterations and additions to the rear are detached from its identified significance and any ability to appreciate its significance.

  1. Ms O'Neill notes that the roof line of the heritage item was identified by the council as one of the most contributing aspects of its heritage significance however this feature is only able to be appreciated from the street, as the steeply pitched cross gables and stylistic architectural elements are confined to the street elevation. The prominence of the heritage item is further enhanced by the fact that it is set forward towards the street boundary when compared to the existing building on the subject site.

  1. Overall, Ms O'Neill states that the proposal will present as a two storey form with a height, bulk and sale consistent with the prevailing character of the streetscape and will not have an adverse impact on the heritage item.

Findings

  1. On the question of the impact on the heritage item at 10-12 Kangaroo Point Road, I agree with the general conclusions of Ms Miro. I accept that the roof form with the steep pitch and distinctive green tiles is a significant element in the heritage significance of the dwelling. This feature can be appreciated from both the street and from the water although I would accept that the more recent additions at the rear of the dwelling that are visible from the water diminish the heritage significance of the dwelling but not to the extent that it cannot be appreciated and understood. I agree with Ms Miro that the significance of the roof form is unacceptably impacted upon by the height, bulk, scale and proximity of the proposed alterations from the waterway.

  1. From the street, the appreciation of the heritage significance of the dwelling is more obvious notwithstanding the recent additions, although I note that these additions had been completed at the time of the heritage listing. I do not accept Ms O'Neill's evidence that the proposed cascading roof diminishes the overall scale of the dwelling as it steps inward on the upper level. The proposed addition essentially raises the existing building a further level. The proposed 1.9 m setback to the heritage item is largely ineffective and fails to provide any meaning visual separation between the two dwellings. The difference in setback to the street also has little, if any effect in minimising the bulk and scale of the proposed development in relation to the heritage item.

  1. In my view, the unacceptable impact on the heritage item would be a sufficient reason to refuse the development application for this reason alone.

Orders

  1. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 10/0608 for alterations and additions to an existing dwelling at 6-8 Kangaroo Point Road, Kangaroo Point is refused.

3. The exhibits are returned with the exception of exhibit 1.

G T Brown

Commissioner of the Court

Decision last updated: 02 June 2011

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Tenacity Consulting v Warringah [2004] NSWLEC 140