John Parkes v Sutherland Shire Council

[2006] NSWLEC 389

Land and Environment Court

of New South Wales

CITATION:	John Parkes v Sutherland Shire Council [2006] NSWLEC 389
PARTIES:	APPLICANT John Parkes RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10308 of 2006
CORAM:	Brown C
KEY ISSUES:	Appeal :- modification of approval for dwelling - roof form - effect on heritage item from view loss
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2000
CASES CITED:	Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
DATES OF HEARING:	29/06/06
DATE OF JUDGMENT:	07/06/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr B Phillips, solicitor Of: Macedone Christie Willis Lawyers RESPONDENT Mr C Mathieson, solicitor SOLICITORS Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

6 July 2006

10308 of 2006 John Parkes v Sutherland Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Sutherland Shire Council to modify, under s 96 of the Environmental Planning and Assessment Act 1979, Development Application No. 04/0300 for the erection of the erection of a dwelling at 4 Loch Lomond Crescent, Burraneer (the site).

2 The modification application relates to the change of the approved curved roof form to a more of traditional pitched roof form. The dwelling approved under Development Application No. 04/0300 has been erected with the roof form proposed in the modification application. In accordance with the decision of Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, a s 96 application that relates to development that has already being carried out can be considered on its merits.

3 The site has a frontage to Loch Lomond Crescent and slopes from the street to the high watermark of Port Hacking.

4 The site is within the 2(e2) Residential zone of Sutherland Shire Local Environmental Plan 2000 (LEP 2000). The site is located within a Foreshore Scenic Protection Area. The site is also within the vicinity of a heritage item in LEP 2000 identified as "Loch Lomond". The heritage item is located at 3 – 5 Loch Lomond Crescent, on the opposite side of the street and generally to the north east of the site. The description of the heritage item states:

Good Post-war house. Now fully rendered. Rounded projection, central two storey section. Single storey wing to one side with parapet forming balaustrade to roof deck. Prominently sited on sloping block.

5 Clause 14 of LEP 2000 states:

How are heritage items and relics protected?

(1) The following development may be carried out only with development consent:


(a) demolishing or damaging a heritage item,

(b) altering a heritage item by making structural changes to its exterior

(c) altering a heritage item by making non-structural changes to the detail, fabric, finish or appearance of its exterior, (d) moving a relic, or excavating land for the purpose of discovering, exposing or moving a relic,

(e) erecting a building on, or subdividing, land on which a heritage item is located,

(f) development, other than exempt development, on land abutting land that is listed as, or contains an item listed as, a heritage item in Schedule 2 that is not:

(i) an item of landscape significance (being an item listed in Schedule 2 with an identifier containing the letter “L” corresponding to the item), or

(ii) an item of archaeological significance (being an item listed in Schedule 2 with an identifier containing the letter “A” corresponding to the item).

(2) When determining a development application required by this clause, the consent authority:


(a) must consider the effect of the development on the heritage significance of the heritage item and its setting, and

(b) is to consider any conservation plan that assesses the impact of the proposal on the heritage significance of the item and its setting.

6 The single issue in the Statement of Issues was “Matters raised by objectors”. This was identified as the unacceptable impacts on the heritage item and more specifically the loss of views to and from the heritage item.

7 The council provided no evidence but relied on the submission by Dr Richard Lamb on behalf of Mr and Mrs D Knight, the owners of Loch Lomond. The submission was provided to the council when the application for modification was advertised. The applicant provided a statement of evidence from Mr Peter Lonergan, a heritage architect.

8 The Court convened at 9.30 am on site with legal representatives of both parties, Dr Lamb and Mr Lonergan. Unfortunately access was not available to Loch Lomond however Dr Lamb and Mr Lonergan explained their respective positions at this time.

9 Dr Lamb accepted that additional loss of views created by the change in roof form was not significant however it was his opinion that the significance of Loch Lomond was already severley impacted upon by the subdivision of land around the heritage item and the construction of dwellings on the new lots. In his opinion, there should be no further development that may impact on the significance of Loch Lomond.

10 Mr Lonergan states cl 14 does not apply as the site does not abut the heritage item. Notwithstanding this, he states that it is reasonable and consistent with the public interest to assess whether the significance of the item would be adversely impacted by the proposed modification. In his view, the modifications are not an unacceptable addition to the current built form of the locality because the modification has not unreasonably or unacceptably obscured views to or from the heritage item. While accepting that there will be a marginal increase in view loss from the heritage item, this loss is not significant and does not adversely impact on the heritage significance of the heritage item.

11 Mr Lonergan calculates a distance of some 800 metres from the Royal National Park across Port Hacking to the site. Because of this distance and development around the heritage item and the general development of the Burraneer peninsular, he does not accept that any existing views from the Royal National Park to Loch Lomond could be said to be integral to the significance of the heritage item.

12 With the benefit of the documentation available to the Court and an understanding of the relationship between the dwellings and the water views, I have little trouble in accepting Mr Lonergan's conclusions. In general terms, Dr Lamb is correct in that there must be a time when further development should not proceed because of the impact on a heritage item however I do not accept that the proposal reaches this point. Helpfully, Mr Lonergan provided a photomontage that showed both the approved roof and the roof proposed with the modification application. This indicated that the modified roof level would reduce the views available from Loch Lomond although the additional areas of view loss are very small. When considered in the context of the panoramic views available from Loch Lomond, the additional view loss would be largely unnoticeable.

13 I also accept Mr Lonergan’s evidence that while there may be specific features within the Royal National Park, such as the Bonni Vale camping ground that may be marginally obscured by the changed roof form, these features could not be classified as significant and as such do not require greater protection.

14 I also agree that the impact of view losses between the approved roof form and the modified roof form from the Royal National Park would not be noticeable because of the distance of some 800 metres. The potential impact on the heritage significance of Loch Lomond from this area is not an argument that, in my view can be sustained.

15 In most cases where view loss is an issue, it is necessary to view the source of the potential view loss. In this case, and with the marginal difference between the approved roof form and the modified roof form and the documentation available to the Court on-site, I can comfortably conclude that it was not necessary to have access to Loch Lomond to properly assess the impact of the modified roof form.

16 As the proceedings involved a s 96 modification, the On Site Hearing provisions in the Land and Environment Court Act 1979 were not available however because of the limited scope of the issue and the evidence available on-site, I indicated to the parties my preliminary view on the issue and adjourned the proceedings. The judgement confirms my preliminary view given on-site and the reasons for the decision.

17 The Orders of the Court are:

1) The appeal is upheld.

2) The application to modify Development Application No. 04/0300 to provide for a different roof form for the dwelling at 4 Loch Lomond Crescent, Burraneer is approved subject to the conditions in Annexure A.

___________
G T Brown
Commissioner of the Court