Karahalios v Sutherland Shire Council
[2012] NSWLEC 1002
•10 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Karahalios v Sutherland Shire Council [2012] NSWLEC 1002 Hearing dates: 20-21 December 2011 Decision date: 10 January 2012 Jurisdiction: Class 1 Before: Morris C Decision: Applicant is to file detailed architectural plans and a corresponding BASIX certificate by 17 January 2012 in accordance with the sketch plans in Exhibit G and ensuring that the maximum height of the parapet is RL34.328. Upon receipt of those plans and certificate, final Orders will be made.
Catchwords: DEVELOPMENT APPLICATION: SEPP 1 objection to height development standards; heritage impacts; impacts on adjoining properties; amended plans Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; State Environmental Planning Policy No. 1 - Development Standards; Sutherland Local Environmental Plan 2006; Cases Cited: Tenacity Consulting v Warringah [2004] NSWLEC 140; Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. Texts Cited: Sutherland Shire Development Control Plan 2006 Category: Principal judgment Parties: Nick Karahalios (Applicant)
Sutherland Shire Council (Respondent)Representation: Ms J Reid
Ms J Amy
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 10949 of 2011
Judgment
Mr Karahalios lodged Development Application No. 10/1065, which proposed alterations and additions to an existing dwelling house at No. 24 Kangaroo Point Road, Kangaroo Point. Sutherland Shire Council refused that application. An application to review that determination including amended plans (RA11/0018) was lodged under s82A of the Environmental Planning and Assessment Act 1979 (the Act) however the council upheld its decision. Mr Karahalios is appealing that determination.
The matter was heard under the provisions of s34AA(2)(b)(i) of the Land and Environment Court Act 1979 (the LECAct) despite the majority of issues being resolved in the conciliation process by way of further amendments to the plans. Notwithstanding these further amendments, the contentions remaining are whether the proposal has adverse impacts on a heritage item opposite the site, its height and bulk are appropriate and it is acceptable in terms of privacy impacts to adjoining properties. The Court is also required to consider objections to development standards that apply to height controls in accordance with the provision of State Environmental Planning Policy No. 1 - Development Standards (SEPP1).
Background
The original development application was lodged with the council on 26 October 2010 and was refused on 25 January 2011 on 7 grounds. These are summarised as the height, in terms of storeys and actual height; the landscaped area provided not meeting the council's development standards and the objection to those standards was rejected; inadequate setbacks were provided for a deck and the proposal failed to satisfy the zone objectives.
Amended plans, which reduced the size of the proposed dwelling additions, accompanied the s82A review application. Those plans were considered by the council and it decision to refuse the application was upheld on 14 November 2011. Five reasons for refusal were provided and they were the breach of the height controls and floor space ratio (FSR) control, inconsistency with the zone objectives, adverse impacts to adjoining properties and that approval of the application would set an undesirable precedent so that it would not be in the public interest.
The site and its context
The site is irregular in shape and has a frontage of 15.24m to Kangaroo Point Road and a depth of 70.713m on the northern boundary and 69.19m on its southern boundary with site area of 1062sqm. The site falls significantly from the roadway to the rear property boundary which provides direct access to the Georges River however the title of the land does not extend to the water's edge. The fall of the property is not consistent across the site. It has a more gradual fall from the front to the midpoint of the site with a steep drop to the rear of the existing dwelling and then further grades towards the waterway. The lower portion of the site has been benched to provide usable terrace areas but retaining rocky outcrops.
A two and partly three storey dwelling with a low angled roof is erected on the site setback 7.5m from its front boundary. The lower level contains the master bedroom, study, rumpus room, laundry and bathroom areas, the mid level a double garage, main living and dining area, kitchen and family room with a further three bedrooms and bathroom provided on the upper level. A terrace and balcony extend across the entire building width at the lower and mid levels of the dwelling directed towards the eastern water views. Two balconies to the western elevation are located off the upper level bedrooms.
A two level boatshed, inground swimming pool and jetty are attached to the site forward of the Mean High Water Mark and that land is licensed to the owners of the site.
Development in the vicinity of the site contains a range of dwelling houses of varied architectural style. The dwelling immediately to the north of the site is a three level dwelling with pitched roof and the dwelling to the south contains four levels, also with a pitched roof. Both of these dwellings contain a garage forward of the main dwelling building alignment. The majority of dwellings within the vicinity of the site present as three storeys when viewed from the water however some, which step down the topography of the land, contain five levels. Despite the number of levels within those dwellings, the majority present as two storeys when viewed from the street.
The house and garden of the property No. 25 Kangaroo Point Road, which is opposite the site, are listed heritage items under Sutherland Local Environmental Plan 2006 (the LEP) . The significance of the item is described in the heritage study undertaken for the council and the Department of Planning informed by an inspection conducted in 1992. That says: Ecclesiastical Gothic style, unusual for a domestic building seems always to have been a house. Probably c1940, going on the age of other houses nearby, but difficult to tell. A good individual design and little altered. Local significance. The garden is separately identified and the description provided in that reference is stone house in ecclesiastical Gothic style, probably c1940. Steep pitched, terra cotta tiled roof. Double gables at front. Arched openings to front including recessed entry. High stone fence. Modifications: sympathetic front garage.
The proposal
The works proposed involve the construction of an additional deck to the east of the dwelling and alteration and additions to the mid and upper floors with internal alterations also proposed to the lower level.
The new deck would be constructed at RL20.86, which is 4.24m below the existing lower ground floor level. That deck would be connected to the existing pathways and stairways that provide access from the dwelling to the water's edge and amenities.
The footprint of the lower floor would be retained and the works proposed at that level involve the replacement of existing doors to the openings that access the lower terrace and change of use of the rooms so that the use of the area would be as a gym, family room, guest bedroom, laundry, bathrooms and plant room.
The works to the mid level involve the extension of the eastern wall of the living area to the edge of the current verandah and the construction of a new balcony 2.71m in width across the eastern face of the building. The central portion of the balcony contains a 1m wider area. Internal walls would be removed to provide an open plan living, dining and kitchen area and stairs introduced to form a level change to a new entry foyer and study constructed in the existing front courtyard area and in line with the current garage which would also be elevated to reduce the grade of the driveway. The existing building line would be retained apart from a new entry porch that would encroach the setback by 1.41m.
The most significant changes are proposed to the upper level and involve extension of the eastern and western walls beyond the current envelope so that the eastern wall would extend 1.45m beyond the most eastern wall face and 3.69m from the main rear wall. A 3m wide balcony is proposed across the eastern faade. The western wall would extend to the 7.5m building alignment. That level would also be split level with the western portion being 1.1m above the eastern section.
A lift would be introduced to the structure and connect all three levels. A 20 degree tiled roof is proposed with a maximum ridge height of RL36.36.
The contentions
At the conclusion of the conciliation conference, the issues of landscaped area and building density were resolved as the planning experts agreed that the FSR of the proposal would comply with the maximum permitted under the LEP. The applicant had prepared a landscape plan that addressed the council's concerns in relation to area and, subject to that plan being a condition of any consent issued, the council did not press that contention. The remaining matters go to building height, view loss, privacy and heritage impacts.
The amended plans
During the conciliation conference a number of options were proposed by the parties in an attempt to resolve the matter. The applicant provided amended sketch plans that reflected those discussions as Exhibit G. Those plans make significant reductions to the building's height through the elimination of the split floor levels at both mid and upper floors and the change of roof form to a flat roof with a parapet height of RL34.328, a reduction at the highest point of around 2m and to the ceiling of the top level a reduction of 937mm.
Other than the removal of the internal stairs, no change to the floorplans of the lower and mid levels is made. In an attempt to address the concerns of the council and the owners of the immediately adjoining properties, Nos. 22 and 26 Kangaroo Point Road, the eastern wall of the main bedroom on the upper level has been setback by a further 1m and the width of the balcony reduced at each side boundary.
Despite the positive acceptance of the majority of changes made, the council did not accept that the plans satisfied all concerns and requested the upper floor level be further reduced so that the eastern wall did not extend any further than its current position. That change would require the bedroom wall to be cutback a further 2.69m and the extent of change was not acceptable to the applicant as he maintained the room would not be of a suitable size as a main bedroom. As no agreement could be reached, the conciliation conference was terminated and the hearing held under the provisions of s34AA(2)(b)(i) of the LEC Act.
The planning controls
The site is within Zone 1 - Environmental Housing (Environmentally Sensitive Land) under the LEP. The proposed development is permissible with consent. The LEP contains a range of controls relevant to the application and they are the aims of the LEP (cl 3), the objectives of the zone and zoning table (cl 11) , foreshore building line (FBL) (cl 17), development adjacent to waterways (cl18), environmental risk - acid sulphate soils (cl 23), building height (cl 33), building density (cl 34) landscaped area (cl 36), urban design general (cl 48) urban design residential buildings (cl 49) and heritage (cl 54).
The site is subject to a 30m FBL and all work is outside that line so accords to that control.
Of the contentions remaining, the aims of the plan and zone objectives, building height, urban design and heritage require detailed consideration. The relevant aims of Zone 1 are:
(a) to allow development of a scale and nature that:
(i) complements the natural landscape setting of the zone, and
(ii) protects and conserves existing vegetation and other natural features of the zone,
(b) to limit development in the vicinity of the waterfront so that the environment's natural qualities can dominate,
(d) to minimise the impacts of development in the vicinity of heritage items,
(f) to ensure sharing of waterfront views between occupiers and users of new and existing buildings.
The objectives of the building height controls, that must be considered in determination of an application, are found in cl 33(2) of the LEP and are:
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 development standards relevant to the application are found in subclause (4) and state 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.
In this case, ground level is the existing level of the site.
Clauses 48 and 49 list mandatory considerations before consent can be granted to an application. Those are:
48(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,
(b) the extent to which any proposed buildings are designed and will be constructed to:
(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and
(ii) contribute to the desired future character of the locality concerned,
(c) the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,
(d) the extent to which the natural environment will be retained or enhanced by the proposed development,
(e) the extent to which the proposed development will respond to the natural landform of the site of the development,
(f) the extent to which the proposed development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,
(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.
49 (a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,
(b) the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised,
(c) the extent to which the quality of the streetscape concerned will be improved by the development,
(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,
(e) the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised,
(f) the extent to which the residential building concerned integrates with a well-designed landscaped setting,
(g) any opportunities for the provision of affordable housing.
The council's planning documents do not define the desired future character (DFC) of the locality and Ms Amy, for the council submits that it is determined from the application of the council's development controls for an area.
Whilst clause 54 contains heritage provisions, they apply to heritage items only and not to sites within the vicinity of a heritage item. One of the objectives of the clause is however a relevant consideration and requires the conservation of the heritage significance of heritage items, including associated fabric, settings and views.
Sutherland Shire Development Control Plan 2006 (the DCP) contains further controls of relevance to the determination of the remaining contentions and in particular those that relate to daylight access and privacy.
The evidence
An inspection of the site and the adjoining properties including the heritage item at No. 25 was undertaken at the commencement of the proceedings. The owners of the neighbouring dwellings provided evidence in relation to their concerns. All owners were concerned in relation to view loss, No. 22 of views to the south-east across the common side boundary from living and balcony areas, No. 26 to the north-east, also across the side boundary from the upper level living room and balcony area and No. 25 from the front, first floor bedroom window of views of the Georges River, Tom Uglys Bridge and what the owner described as "fairyland", the lights in that view.
In addition, the owners of Nos. 22 and 26 were concerned about visual intrusion of the building, particularly the eastern extension at the upper level and, in the case of No. 26, the proximity and height of that addition to the north facing window of the living area in that room.
Expert town planning evidence was heard from Mr Fletcher for the applicant and Ms Pinfold for the council and on heritage, Mr Staas for the applicant and Ms Miro for the council.
Building Height
The planners agree that the proposed building height has no unreasonable impact on No. 25 and that it is the ceiling height and two storey height that are the non-compliant development standards of relevance to consideration of the impacts on Nos. 22 and 26.
Mr Fletcher says that the existing dwelling and both neighbouring buildings exceed both of the development standards and that the proposal, as demonstrated in exhibit G, would comply with the maximum 9m height control and for that reason, the height of the proposal is satisfactory. Ms Pinfold disagrees and says that the height of the building, particularly in its south-eastern corner results in visual intrusion to the adjoining property and says that the proximity and height of the blank wall is an unacceptable impact. For that reason says the building should be set back at least 1m further than proposed in the Exhibit G plans and that if it corresponded to the location of the existing eastern wall, the development would be acceptable. To achieve the floor space proposed, Ms Pinfold says the building could be moved closer to the street despite this meaning the building alignment of 7.5m would be breached. She says that the location of the garages on the adjoining properties which also encroach the setback is reason to allow the building to move further forward than proposed and that any variation to the height controls that may remain as a result of those changes would be minimal and would satisfy the tests of SEPP1. Ms Pinfold accepted a proposition that splaying the corner wall of the main bedroom by 1m would address the visual intrusion issue.
Solar and privacy impacts
The town planning experts agree that the development would comply with the DCP controls for solar access. Ms Pinfold says that the privacy screen proposed by the applicant needs to be on an opaque material and accepts that by setting that back 800mm from the face of the balcony as proposed by the applicant, the privacy concerns of the two adjoining neighbours would be addressed.
Views
The planning experts agree that the proposal's impact on views from Nos. 25, 22 and 26 is acceptable from a town planning perspective having regard to the Land and Environment Court's Planning Principle on View Sharing however, they defer to the heritage experts to assess the heritage impact of the view loss to No. 25.
The heritage experts agree that the heritage item (dwelling and garage) at No. 25 Kangaroo Point Road was built in 1947 and that its carport appears to be a later addition. They also agree that Tom Uglys Bridge was completed in 1929 to replace the punt that operated between Tom Uglys Point and Horse Rock Point in Sylvania and that the bridge is a State significant item and is unique as a major work financed by a local government agency, Sutherland Shire Council.
They also agree that the heritage item enjoys views to the west over Oyster Bay in addition to the view to the east to the Georges River and Tom Uglys Bridge from the first floor bedroom window, that the proposal, with the pitched roof would result in loss of the existing view ot the bridge from that window and that there is no opportunity to regain additional views to the east within the heritage building without substantially altering the building unacceptably. It is also agreed that the view loss is not the result of non-compliance with the numerical controls on development.
They do not agree that the view from the heritage item across the site can be characterised as an iconic view, nor do they agree on the quality or significance of that view or whether there is any connection between the item and the bridge that is important to the understanding of the development of the area.
Ms Miro says the view enjoyed from No. 25 is iconic and the value of the view is high whereas Mr Staas considers the view to be incidental to the design of the house because nothing in its design indicates that any consideration was given to the visual connection of the present heritage item with the bridge.
Ms Miro says that the loss of the view will diminish the significance of the item and says there is a link between Kangaroo Point and the bridge. This is because the Shire President, Joe Munro, lived in Kangaroo Point and drove the construction of the bridge and it is part of the history of development of the suburb. She did concede that the dwelling was built well after the time the bridge was constructed and that the heritage item has no link to Mr Munroe. Mr Staas does not question the history but says there is no evidence of any connection between the house and the bridge and the only reason the dwelling is listed as a heritage item is due to its distinctive architectural character. He says that the fact that the view remains is an "accident" due to the design of the existing house on the site with its low pitched roof. Ms Miro says that because the view exists it should be retained.
SEPP 1 objection
The town planning experts agree that the development standards for FSR and landscaped area are met or would be met if the site is landscaped in accordance with the plans which form Exhibit E and that the development standards not met are those that relate to the floor to ceiling height and actual height of the building.
Mr Fletcher prepared an objection to those two development standards and that forms part of the documents in Exhibit 2. That objection was based on the plans that were lodged with the s82A review application. As the applicant agreed to further amendments to those plans during the conciliation process, it is appropriate that those plans, Exhibit G, are also considered by the Court in relation to the height controls.
It is agreed between the planning experts that the overall height of the building in accordance with Exhibit G would be compliant with the 9m control but the ground to ceiling control of 7.2m and the two storey control is exceeded across part of the building. It is acknowledged that the existing building currently exceeds the two storey height control.
The area where the control is currently exceeded is at the eastern face of the upper floor and the extension of the dwelling further to the east exacerbates the breach. The exhibit G plans reduce the extent of the variation but do not resolve it and the additional extent is a section of wall approximately 2.5m long on both the north and south elevations with the exceedance being greater on the southern side due to the slope of the site where it is up to 2m.
Mr Fletcher says that it is appropriate to vary the development standards as the scale of the development is consistent with development in the locality, the impacts are acceptable and satisfy the objectives of the zone. Ms Pinfold disagrees and says that the development when viewed from the water will not satisfy the objectives of the zone as the DFC envisages two storey development and one where the environment, rather than built form, dominates. She also says that the additional height has unreasonable impacts on No. 26 in terms of solar access and visual intrusion however acknowledges the council's control for solar access is met but says those impacts would be improved through a complying development.
Conclusion and findings
Having considered all of the evidence provided and the council's planning controls for the site, I am satisfied that the amended plans prepared during the conciliation phase of the process, Exhibit G, sufficiently address all of the council's planning contentions. In particular, the elimination of the split level sections of the mid and upper floors and the change in roof profile and the setting back of the upper eastern wall by a further metre provide significant improvements to the bulk and scale of the development and reduce the impacts of the built form to an acceptable level.
I note the council's and neighbours' concerns in relation to visual privacy and am satisfied that the provision of privacy screens as proposed by the applicant and agreed by Ms Pinfold will address those concerns and that solar access controls are met.
With regard to views, I have regard to the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 and in particular, the fact that side views are harder to protect. The site and both adjoining properties currently enjoy panoramic views across the Georges River and whilst the proposed development will reduce that view, and the cause of that view loss is from the non-compliant section of building, I consider the impact to be minor and therefore reasonable. Both properties will retain extensive views from all east facing windows and balconies at all levels.
I do not consider that setting back the upper floor by a further 1m or splaying the south-eastern corner of bedroom 1 as recommended by Ms Pinfold would make a significant difference to the impacts of the building. This is because I find the 3m separation between buildings is sufficient to address the issue of visual intrusion between the site and No. 26 and that the main view from the living room is to the east. I also note that the Exhibit G plans provide for the rear, upper floor walls of the proposed dwelling and the adjoining dwelling to follow a similar line.
With regard to the impacts of the development in regard to the views enjoyed by the adjacent heritage item, I prefer the evidence of Mr Staas. It is apparent when inspecting the building that the view towards Tom Uglys Bridge was not the prime design consideration. The dwelling is designed to capture the western view of Oyster Bay. I also consider that the reduction of building height proposed will allow for the retention of much of the view to the bridge however, if this is not the case, I do not consider that the loss of view from the heritage item would be fatal to the application.
With regard to the SEPP 1 objection, I have regard to the provisions in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. It is agreed that the controls are development standards. The objectives of the standard are those detailed in [22] and I am satisfied that the development is consistent with the scale and character of the street and locality and whilst Ms Pinfold says that the DFC contemplates two storey development, in the circumstances of the case where the existing building and the adjoining development exceeds that control, I find the variation to be appropriate. I also consider the impacts of the proposal having regard to those objectives are acceptable and that, in the circumstances of the case, compliance with the height controls would not be reasonable or necessary nor hinder the objects of the Act. This leads me to conclude that the objection is well founded and determine that the SEPP 1 objection to the development standard for building height should be upheld.
I am satisfied that the further amendments made to the plans for the development satisfactorily address the impacts of the proposal and ensure consistency with the council's planning objectives for the locality. As the plans have not been developed to a stage that would allow the grant of consent and the mandatory BASIX certificate has not been provided to the Court in accordance with those plans, it is appropriate to allow the applicant time to lodge proper plans and the certificate with the Court. On receipt, final Orders can be issued.
Directions
The applicant is to file detailed architectural plans and a corresponding BASIX certificate by 17 January 2012 in accordance with the sketch plans in Exhibit G and ensuring that the maximum height of the parapet is RL34.328. Upon receipt of those plans and certificate, final Orders will be made.
Sue Morris
Commissioner of the Court
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Decision last updated: 12 January 2012
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