Lightning Investments Pty Ltd v Pittwater Council - [2003] NSWLEC 292

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Land and Environment Court

of New South Wales

CITATION: Lightning Investments Pty Ltd v Pittwater Council [2003] NSWLEC 292

PARTIES:
APPLICANT:
Lightning Investments Pty Ltd
RESPONDENT:
Pittwater Council

FILE NUMBER(S): 10878 of 2001

CORAM: Hoffman C

KEY ISSUES:
Development Application :- The design
height
bulk and excavation required for the proposed home and driveway
The character of the locality and whether the proposed house would conserve or enhance orbe detrimental to those characteristics
The impact on the topography and vegetation and the scenic quality of the coastal landscape·
Privacy of neighbours

LEGISLATION CITED: Environmental Planning and Assessment Act 1979· Pittwater Local Environmental Plan 1993

CASES CITED:

DATES OF HEARING: 14, 15, 19 August 2003

DATE OF JUDGMENT:
11/14/2003

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, barrister
SOLICITORS:
McKees Legal Solutions
RESPONDENT:
Ms G Furness, barrister
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

Appeal No: 10878 of 2001

In the Land and
Environment Court
of New South Wales

Heard by: Commissioner K G Hoffman
Decision Date: 14 November 2003

Lightning Investments Pty Ltd
v
Pittwater Council

Judgment

The issues
6 The issues were:

Character and locality

Excessive Excavation

and the swimming pool.

Environmental Planning and Assessment Act

The proposal
7 The site is about 2800 m2 in area. It is zoned Residential 2 (a) under the Pittwater Local Environmental Plan1993. The proposal is for a three-storey dwelling with a roof deck and associated facilities making a fourth level.
8 Due to the steepness of the site the driveway is progressively excavated down to 7.5 m below ground surface to obtain entry into the 4-car garage. On the same level, in front of the garage is a rumpus room that emerges above ground level due to the slope, and a swimming pool in front of the rumpus facing the ocean. There is an entry lobby on the side of the rumpus room and the stairs lead up to the next level.
9 This next level contains the living, family, dining and kitchen areas all fronting an extensive balcony oriented towards the ocean views.
10 There is a lift which runs between the levels from garage to the roof deck.
11 The third level contains a master bedroom and three others, and a study. All except one bedroom front a large balcony oriented towards the views of the ocean. At the rear of this level there is a sitting room that faces towards the west and a courtyard just below the ridge top of the hill.
12 The fourth level contains a deck covering most of the flat rooftop. The lift, a plant room, a toilet and vanity, an internal stair and lobby provide access to a roofed area over about 1/3 of the deck. The roofed area has a floor to ceiling brick wall on the southern side adjoining No. 162 Whale Beach Road, an allotment of about 5,000 m2.
13 Further to the west of the house existing vegetation including trees are to be retained and supplemented to provide a modified bush yard. The vegetation is to be controlled due to the high bush fire hazard location on the ridge. But the tree canopy on the ridge was sought to be retained for landscape and visual backdrop reasons.
14 During the hearing the wall to the roof deck on the southern side and the shade roof over part of the deck was removed in order to reduce the visual impact of that level. A planter box is now proposed along the southern side adjacent No. 162. Number 164 Whale Beach Road is below No. 162, and also below and just to the south of the swimming pool of the proposal.
15 Number 166 is directly below the swimming pool and deck east of the site. Number 170 is below and to the north of the proposed house on No. 168.
The evidence
16 Mr Jenkins of 162 Whale Beach Road has lived there for 25 years. His house was on about the same contour as the upper levels of the subject house and to the south. His house was on a large allotment which adjoined the subject property. It was set in amongst trees and barely visible from most vantage points in Whale Beach.
17 He said that the proposal would mean loss of amenity to his home due to the proximity to the subject development. He thought its excessive height and high visibility would create a precedent in the locality especially on the ridge where he thought minimal visual impact should be retained. He believed that proposal could not be adequately screened by trees, and contrary to his own home, it would be seen from many vantage points in Whale Beach.
18 The effect on his amenity would come from lights and activity at the house where currently he was largely surrounded by the quiet and the bush. The rooftop entertainment area was level with his own house and he would receive all the noise, lights and other impacts from entertainment,
19 He thought this would be unacceptable especially in the quiet at night. On still nights he could hear persons talking on the Beach due to the amphitheatre effect of the topography around Whale Beach Bay. He thought the noise of activities at the proposed house would probably be echoed around the Bay and affect other people's amenity as well as his own.
20 He said his concerns had been heightened by the declining health of the existing trees in the locality. He had employed 2 tree experts to minimise losses but they could not find the cause for the decline except for the drought conditions of the last many years. This would expose his house to more of the activities on the roof of the proposal.
21 He was concerned that the noise of air-conditioning plant and lift motor of the proposal would be heard from his house. He thought the extensive balconies at the other levels of the proposal should be ample for entertainment and more directly associated with the living rooms of the house.
22 The elimination of the rooftop deck would eliminate disturbances to him and reduce the visual impact of the proposal from vantage points around the Bay. He agreed that the windows in the proposal facing towards him could have vertical louvres erected on the exterior to give the applicant views of the morning sun and the ocean but prevent views towards his house.
23 He said during his life he had visited many places in the world and regarded Whale Beach has one of the most beautiful. He thought any changes to the area should be controlled so that they were an improvement rather than to its detriment.
24 An expert report by Ms K.Webb Senior Strategic Planner for the Council was in evidence on the proposal, and the need to conserve and enhance the desirable characteristics of the area as in Development Control Plan LP-3. She was not required for cross-examination.
25 The applicant made submissions in regard to the altered Bushland rear yard required for bushfire hazard reduction. The respondent had said about 50% of the tree canopy on the ridge would need to be removed. The applicant refuted this and told the Court that correspondence from the Rural Fire Service had indicated that trees 55, 64,69,75 and 76 on the tree survey plan would be removed and tree 99 pruned to create discontinuous canopy. The ground cover was also to be reduced in order to minimise potential fuel for a bushfire.
26 Mr Ingham town planner for the respondent had recently completed a formal course on bushfire hazard run by the Rural Fire Service. It was 2-day course. His certificate for the course had not yet been issued. He said prior to the course he was familiar with the Rural Fire Service’s manual, but prior to this he had obtained reports from other bushfire experts when needed for evidence.
27 He said within the 30 m Asset Protection Zone (APZ) to the west of the proposed house there was an Inner Protection Area (IPA) that has to be less vegetated than the Outer Protection Area (OPA). In the IPA shrubs had to be minimised, and both shrubs and trees had to be species that did not contain dead material, would not drop ground litter, and their canopies must be discontinuous. He said the landscape plan in Exhibit B did not represent that in his mind. In Revision D of the plan he said the OPA was suitably treated but not the IPA.
28 On planning matters, he agreed that the removal of part of the roof over the roofdeck gave less visual impact, but he believed that the proper solution was no use of the roof at all and no structures at roof level. The very large balconies on the other levels provided ample space for entertainment. The roof facilities added to the bulk of the building unnecessarily. The top of the roof structures was at RL 62 or about 4.5 m above the earth on the ridge. Because the roof deck itself was about 1m above the level of the ridgeline it would be possible to obtain views to the south into Pittwater, and he believed this might give rise to the loss of ridgetop trees in the future.
29 In regard to the privacy of Nos. 164 and No. 166 Whale Beach Road he thought the measures taken to retain their privacy were inadequate.
30 He noted in the amended plans, the swimming pool had been lowered by 750 mm and that the north-eastern corner of the structure had been curved, and by this shape and the reduction of the structure it would soften the visual impact to some extent and reduce its height above the slope.
31 He believed the solution to overlooking of No. 166’s back yard and No. 164’s living room and balcony was to lower the pool by 2 m. However this would not change the bulk of the house above, as it was shown unchanged.
32 In regard to the landscaping he thought any building design in the sensitive topography of Whale Beach should achieve the zone objectives without the need for screening by vegetation.
33 Other matters that made this design unacceptable in his opinion were: the deeply excavated driveway had not been altered in the amended drawings. He noted that the excavation went almost to the rear of the house in order to give access to the 4-car garage behind the rumpus room.
34 The resulting excavation was 7½ m deep. If the garage was moved down the driveway to be adjacent the swimming pool, the excavation could be reduced to 3 m and have considerably less impact on the topography and the vegetation and the scenic landscape. It would enable more planting on the site on the northern side of the house and on the roof of the relocated garage.
35 He noted that adjacent No. 166 the trees along the driveway had been pruned to a hedge to retain views from the side windows of the dwelling. He said the same would happen with the current design of the proposal. The dense vegetation shown on the plans along the driveway excavation, to hide it and the house, was unlikely to be allowed to grow to full height. The suggested screen vegetation would never eventuate in his opinion.
36 Relocating the garage and reducing the length of excavated driveway would avoid this situation he said.
37 Because of the competing interests of bushfire hazard reduction and scenic protection he said the only way to achieve the desired outcome was for houses to have a lower visual impact, and be kept away from the ridge so that trees in that location could remain.
38 With the height poles erected on site he said it was obvious that standing in different locations along Whale Beach Road close into the hill, the proposed house would stand out, to the casual observer, above the ridge line including the tree canopy. He agreed that from the headland on the northern side of Whale Beach Bay, the higher ridge above Careel Bay to the west, in Pittwater, would be above the house. But it was a kilometre or so beyond the site and did not provide that advantage when one stood at lower levels in the bay.
39 In cross-examination Mr Ingham was asked how many more trees would have to go from the IPA. He said he had not done that exercise.
40 It was put to him the house was only seen from occasional vantage points on the Beach. He said wherever one saw the house, one saw the penthouse on the fourth level.
41 It was said the design complied with criteria of the relevant development control plan DCP-LP3 - Palm Beach Ridgeline Locality Plan. He disagreed saying the house was 4-levels if not 4-storeys in a location where the height limit was 2-storeys with 3 being allowed in exceptional circumstances. It was put to him that the development controls in Part 3 of the DCP did not have a height limit. He said the storey control was in Part 2, in the character statement for the area. It was put to him that the words were “a two-storey height limit should be imposed”. He did not disagree, but said the DCP had to be read as a whole and the controls came from the objectives of the character statement.
42 It was put to him that the driveway vegetation would not block views from the house. He disagreed saying that when one looked at the relative levels and locations of rooms, the views to the north and north-east would be blocked if the vegetation grew to 3 m height or more. These locations included the pool, the rumpus room, the family room, the dining room, the kitchen and the balconies on the northern side of the house.
43 It was put to him that the views to the East over the Bay and headlands would be sufficient for any occupant of the house. Mr Ingham said that real estate was so expensive in this area, occupants expected ALL of the views to be available.
44 Dr Lamb, visual impact consultant gave evidence for the applicant. He said the reduced size of the roof above the roof deck was beneficial as it caused the front edge of the roof to move back away from the eastern elevation and would present less bulk as seen from across the Bay and the Beach. He said it would give the house more apparent stepping up the slope of the hill.
45 He thought the photomontage of the proposal in exhibit F by Mr Glendinning was accurate when compared with photographs of the height poles on site.
46 In regard to the additional trees to be removed along the ridge-top he believed they were open crown trees as seen during the view of the site and did not contribute much to the backdrop. He believed the larger trees to the west of the ridge would still provide a substantial canopy line and the house would be beneath it.
47 He said because of bushfire requirements it was very difficult to have a building that “nestled” into the vegetation anymore. However due to the topography and the development on the adjoining allotments on the north and south being No. 162 and No. 170 Whale Beach Road the house will be seen between the vegetation on those properties.
48 In cross-examination, it was put to Dr Lamb that the house would penetrate the tree line when seen from many locations in Whale Beach. He said from some locations it might be at the tree line but not above.
49 It was put to him that in his evidence, he had compared the proposal’s height with that of the yellow coloured house to the north a couple of allotments. He agreed the proposal would be about the same height. That particular house broke the skyline of the ridge in most photos in evidence.
50 On the photo montage, there was another tree which provided substantial screening to the proposed house. Dr Lamb agreed that if it was on the subject property that tree would be removed by the driveway excavation. He thought it was probably on No. 170. In photographs taken from the site in the general location of the tree in the montage, he agreed no such tree could be seen. It was artist’s licence, and did not appear on the landscape plan.
51 Dr Lamb had stated in his report in chief that the house would be visible from near and far within the Whale Beach Bay area. He agreed it was an area of high intrinsic scenic quality. It was put to him that any house on the site should be more modest in bulk, and a design that stepped up the hill being 1 or 2-storey at any point could achieve that. He disagreed saying that an excavated building with each storey above the other was a better solution than a step design because it had a smaller footprint.
52 He said the development control plan allowed 2-storeys to be exceeded on exceptional sites. This was a very steep site. He did not agree that the locality character description was a control when it stated that 2-storeys maximum was preferable. Also he disagreed with the Character Statement in saying that the typical height of dwellings in the locality was 1 and 2-storey. The steep topography around Whale Beach meant that the predominant height was 2- and 3-storeys with quite a few houses having a fourth storey.
53 In reply Dr Lamb was taken to the yellow house to the north of the proposal that featured in the photomontage. The survey plans showed that its ground level was at AHD 60, whereas the top of the penthouse roof of the proposal was at AHD 62. Given that be yellow house was two-storeys above AHD 60, Dr Lamb said that meant that the topmost point of the subject proposal would be below the tree canopy on the ridge.

54 Mr Eriksson landscape architect for the council said along the northern boundary beside the excavated driveway there was a retaining wall. Between it and the boundary there was space to plant hedge vegetation but not space enough to grow trees. He said trees were proposed to be planted between 300 and 500 mm away from the wall, and in the same spot there was a major water main running from the top of the hill down to Whale Beach Road along the boundary of the subject property in an easement. Trees should not be planted over it, as the pipe would require maintenance and replacement in the future and at that time any trees would be destroyed.
55 He added in any case large trees would need a larger root bowl for stability from strong winds than would be available between the retaining wall and the boundary. Also the root bowl available would be too small for them to reach their maximum height. If the trees were aggressive and damaged either the water main or wall, the council would have no option but to approve removal.
56 The locality was a harsh growing environment even though the species chosen by Mr Pittendrigh were endemic. The dieback of existing trees on the subject and nearby allotments showed that the high winds, salt spray and lack of water in the drought did not allow vegetation to reach normal height. He thought any trees that grew would be windcropped and have a sparse canopy due to exposure.
57 The trees proposed on the eastern side of the pool area would do better but were unlikely to reach the 15 m projected.
58 He noted that the planter area between the visitor carpark and the house was approximately 5.5 m long by 2.5 m wide. It was enclosed by the house and driveway retaining walls, and on the downhill side there was an excavated stormwater detention tank (OSD) under the visitor carpark. The soil bowl available in that space was too small to grow the trees proposed except as stunted examples. If they were aggressive they would damage the walls and justify their removal.
59 He agreed with Mr Ingham's suggestion to move the garage downhill to a point just above the visitor carpark and turnaround area in order to provide additional significant deep soil landscaped area.
60 Mr Eriksson agreed that successful growth of vegetation depended a lot on management by the resident including regular irrigation. He agreed that coastal banksia on site had some examples at 9 m height and 5 to 8 m was a reasonable expectation versus the optimal maximum of 10 to 12 m. He agreed if trees were planted on the boundary 2.5 m from the retaining wall instead of the 500 mm shown, there would be a more substantial root area available.
61 He agreed with Mr Ingham that if the trees grew to 3 m or more then views would be obscured in the locations he described.
62 The trees needed to grow 5 m in order to provide the screening to the extensive driveway retaining walls and excavation and the house as expounded by the applicant.
63 Mr Pittendrigh was the landscape architect and arborist for the applicant. He indicated the existing banksia and angophora trees on site and noted that they had achieved the heights he proposed even though growing against a rock shelf in places. The driveway retaining walls were intended to be reinforced concrete with sandstone biscuit facings. He said the roots of trees would not damage them. The endemic vegetation he proposed was suited to harsh conditions and their roots sought soil and moisture.
64 He believed that the trees to be planted on the northern side of the driveway would have enough soil to grow especially if moved across to the boundary instead of being planted directly over the pipes in the easement.
65 It was his opinion that in the planter area above the visitor car park there would be 27 cubic metres of soil and this was ample for the three trees he proposed there.
66 He said the retaining wall for the driveway was about 2 m high on the low side of the visitor area and about 3.4 m high on the upper side near the pool.
67 He believed the banksia trees would reach between 5 and 8 m in height because of being planted in cultivated soil and irrigated. The trees on the northern side of driveway were to be the same as those planted opposite No.166 so that existing feature would be extended along the driveway. He said they were planted two years ago and had already reached 3 m height. This height was not obvious from the driveway as they were planted on the downhill side and the lower parts of the trees were hidden.
68 In the planter on the southern side of the roof deck he proposed metrocyrids, Indian hawthorn and heterophyla the latter being a hanging plant that would grow down the outsides of the planter troughs.
69 In cross-examination Mr Pittendrigh said he had recommended changes to the original landscape plan and these were in Exhibit B revision D. He had proposed the narrowing of the driveway, and the planting of banksias on the northern boundary and the reduction in the size of the visitors parking area to enable the banksias and the angophora trees to grow.
70 He agreed that without these plantings the screening of the building would be inadequate. He agreed that important factors in their successful growth was irrigation, adequate cultivated soil and the regularity and efficiency of maintenance.
71 Mr Wotherspoon was the bushfire expert for the applicant who had been working professionally in that specialisation since 1992 in regard to subdivisions, buildings, houses and requirements for the National Parks and Wildlife Service.
72 He said with the removal of tree numbers 55 and 76, the landscape plan in exhibit B would comply with the Rural Fire Service requirements.
73 He said exhibit B showed heavier canopy than actually existed in this harsh exposed location. The canopies would not be significant firepaths and the ground cover was mostly pittostrum that is not a conductor of fire. The IPA was 30 m deep from the house and the OPA was an additional 10 m wide. Beyond that total of 40 m, most of the tree species were types that did not support fire and in his opinion, the OPA was not required.
74 In cross-examination on his new position that the OPA was not required, he said it was no great change of position. His original report said that all existing trees could be kept in the OPA and all that was needed to be done was the removal of ground cover fuel including leaves, sticks, shrubs and weeds once a year.
75 Mr Glendinning, town planner for the applicant preferred to read the development control plan LP-3 in three parts. Parts 1 & 2 were for background, part 3 contained the controls. Part 3 was a result of parts 1 & 2 and he believed if part 3 was complied with then there was compliance with parts 1 & 2.
76 He thought the design was complimentary to the scenery as buildings are inevitably to be seen in the landscape and not hidden. Landscape around the building was part of the design.
77 He did not think the level of the swimming pool area needed to be lowered further to protect privacy of the houses below. He said the pool had only its edge on the eastern side facing those houses and there was no activity deck at that end. The active area was back against the house or on the driveway side. With the landscape proposed privacy could be achieved for the adjoining houses.
78 He thought the removal of the wall and the shade roof on the roof deck would reduce the visual impact from a distance. The planter box as proposed on the southern and the eastern sides of the roof would soften the form of the building.
79 In cross-examination, it was put to him that the DCP must be read as a whole. The total content of the DCP was meant to be consistent with the aims and objectives. He agreed with this.
80 It was put to him if there was conflict in the interpretations of the controls the correct meaning should be selected based on what was most consistent with the aims and objectives. He noted that although part 1 contained primary objectives, in part 3 the controls each had their own objectives. This led persons reading the DCP to understand that compliance with the controls will achieve the primary objectives. The local environmental plan had no objectives on these matters, so the statute did not give any overriding guidance.
81 In reading the DCP Mr Glendinning noted that are primary objective stated:

Conserve and where possible enhance desirable characteristics as identified in the character evaluation report.

sic

94 A one can understand from this that the critical parts of the subject design are:
§ the extensive excavation of the driveway and
§ the retaining walls associated with it, and
§ the potential to screen those excavations and to soften the form of the four level house above it, given
§ the restrictions that the excavations create on the area available for landscaping.

95 Some weight must be placed on Mr. Eriksson’s evidence of the limited growth potential of trees and vegetation in the harsh exposed location of the site, with limited soil bowls available in critical screen vegetation locations. Mr Pittendrigh is highly experienced, but Mr Eriksson has worked with the local vegetation for many years and is more likely to know its potential.
96 The excavated part of the driveway is about 40 metres along the northern boundary of site. It would have retaining walls ranging from about 1 m to 7.5m high.
97 All of this is on the northern and eastern sides of the site and house, and they are the sides of the development seen from the various points of observation around the bay.
98 The Court is dubious about the logic of proposing to grow the main screening trees and vegetation for the development over or beside the trunk water main in the easement along the northern boundary of the site. At some point the pipe will require maintenance or replacement. Any vegetation would be removed at that time. The Court was not told if there was any restriction on growing trees within the easement.
99 The Court was conscious of the evidence on the value placed by residents on retaining all possible views from every room in houses in the area.
100 If the screen vegetation was not successful, or was only shrub height, the view of the house seen from most points of observation would include the visitor carpark and its retaining walls, the pool level and its retaining walls, the driveway retaining walls, and the house above that.
101 Measuring from the visitor carpark up to the balustrade of the roof deck, it is 15m of structures.
102 From the beach, between the most likely gaps in the pine trees, the view was almost directly up the proposed driveway, so vegetation would have little benefit, and the full 7.5 m of the retaining wall height at the end of the driveway would be seen.
103 Even with better growth in the vegetation, there would be a visible scar caused by the driveway and its retaining walls that would be contrary to the intentions of the Future Character statement. The bulk of the house above that would still be obvious, having little stepping to reflect the topography. As admitted by even the applicant’s expert, alternatives were possible that would minimise excavation and retaining walls.
104 Mr. Ingham’s suggestion of bringing the garage down to be next to the visitor carpark bears some consideration. It would reduce the visible cutting of the excavation to the minimum and provide a substantial deep soil area on the northern side of the house, both on the roof of an excavated reinforced concrete garage and on the area currently occupied by the top section of the driveway, to grow substantial vegetation.
105 The screen vegetation would then be free of any impact from future maintenance/replacement of the water main in the easement along the northern boundary.
106 Whether or not such an alternative would be acceptable to the Council is not known, but in any case the Court considers such a change to the proposal is not suitable to be imposed by condition.
107 The other matters, given appropriate conditions were shown to have insufficient impact for refusal:
§ The height of the proposal with the minimised roof-top structures set at the back of the building would reduce the visibility of the fourth level to be acceptable, although a house that stepped more up the hill reflecting the topography may produce an even more satisfactory result.
§ The evidence of Dr Lamb in reply showed that the top of the structure would still be below the canopy level of the ridge-top trees, and preserve the existing bushland skyline.
§ The lowering of the swimming pool, and the location of its deck areas back against the house, combined with shrub height vegetation and the separation distances to the houses on Nos.164 and 166 Whale Beach Rd, would preserve acceptable suburban privacy for them.
§ The separation distance of about 30m to the house on No.162 Whale Beach Rd and the intervening vegetation, should be sufficient for reasonable privacy and amenity to be retained. Some change in those qualities must be expected with any house on the subject site adjoining No.162.
§ The evidence on bush fire protection and the retention of ridge-top vegetation by Mr. Wotherspoon must be given superior weight to Mr Ingham’s.

Orders
109 The orders of the Court are:
1. The appeal is dismissed.
2. The exhibits are returned to the parties except exhibits A, B, C, F, 5 and 7.

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Lightning Investments Pty Ltd v Pittwater Council [2003] NSWLEC 292

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CITATION:	Lightning Investments Pty Ltd v Pittwater Council [2003] NSWLEC 292
PARTIES:	APPLICANT: Lightning Investments Pty Ltd RESPONDENT: Pittwater Council
FILE NUMBER(S):	10878 of 2001
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- The design height bulk and excavation required for the proposed home and driveway The character of the locality and whether the proposed house would conserve or enhance orbe detrimental to those characteristics The impact on the topography and vegetation and the scenic quality of the coastal landscape· Privacy of neighbours
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979· Pittwater Local Environmental Plan 1993
CASES CITED:
DATES OF HEARING:	14, 15, 19 August 2003
DATE OF JUDGMENT:	11/14/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, barrister SOLICITORS: McKees Legal Solutions RESPONDENT: Ms G Furness, barrister SOLICITORS: Mallesons Stephen Jaques