Lim v Pittwater Council

[2005] NSWLEC 239

Land and Environment Court

of New South Wales

CITATION:

Lim v Pittwater Council [2005] NSWLEC 239

PARTIES:

Applicant:
Hanns Ian Lim

Respondent:
Pittwater Council

FILE NUMBER(S):

11521 of 2004

CORAM:

Roseth SC

KEY ISSUES:

Development Application - Development Consent :- conditions of consent

sufficient certainty of condition

external colours

DATES OF HEARING:

10/05/2005

 
DATE OF JUDGMENT: 

05/13/2005

LEGAL REPRESENTATIVES:

Applicant:
Mr G McKee, solicitor of McKees Legal Solutions

Respondent:
Ms E Duneow, solictor of Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

13 May 2005

10521 of 2004 Hanns Ian Lim v Pittwater Council

JUDGMENT

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. The conditions are not reproduced as part of this decision but are available for inspection at the Council. A copy the Court’s Orders and conditions may be obtained from the Court’s registry on payment of a fee. For details of the fee payable and process for obtaining a copy of the Orders and conditions see the Court’s web site at

1 Senior Commissioner: This is an appeal against the conditions attached to the consent issued by Pittwater Council (the council) to Development Application No NO121/04 in respect of lot 46 DP 16393, known as 45 The Serpentine, Bilgola. The applicant disputes four conditions.

Condition B45a-12

2 This condition states:

The front setback area located between the northern elevation of the building (excluding the proposed access stairs, pathway and paved entrance area) and The Serpentine is to consist of on-slab planting with a minimum soil depth of 600mm excluding mulch and drainage requirements.

3 The applicant has prepared a landscape plan by Mr S Pittendrigh, a landscape architect, who gave evidence in the applicant’s case. The landscape plan shows varying soil depths depending on whether it is under turfed area or a tree. The applicant’s preferred condition is therefore:

The front setback area located between the northern elevation of the building (excluding the proposed access stairs, pathway and paved entrance area) and The Serpentine is to consist of on-slab planting with minimum soil depth in accordance with the landscape plan numbered LP/01D dated January 2005 (as amended 29 April 2005) prepared by Stuart Pittendrigh.

4 Since I accept that the landscape plan is satisfactory (subject to one amendment mentioned below), the applicant’s version of this condition is appropriate, provided it includes a reference to the additional banksia integrifolia.

Condition B45a-14

5 This condition states:

Small trees and understorey planting achieving a height of 5 to 6m is to be provided consisting of native species growing in the area or locally indigenous species, which, after five years will screen 60% of the built form, when viewed from the street. This applies to both the northern and southern street frontages as separate requirements. In respect of the southern elevation, the 60% screening requirement is in addition to the requirements of condition B45a-13.

6 Mr A Pigott, a town planner with the council told the Court that Mr Pittendrigh’s landscape plan did not include sufficient large trees to achieve the 60% screening. The plan includes only one tree, namely a banksia integrifolia planted in a location that does not obstruct the main view and, in Mr Pittendrigh’s view, has therefore more chance of survival. Mr Pigott said that four or five large trees would be required to achieve the desired screening effect.

7 In my opinion, Condition B45a-14 is not sufficiently certain. I cannot see how it can be enforced. Who is to decide whether the landscaping after five years achieves a screening power of 60%? Does this mean that only 40% of the house should be seen and 60% concealed? Or that the whole house should be seen through a veil that reduces visibility by 60%? This would be an entirely subjective assessment. Moreover, from what location in the street should the extent of screening be judged? It is possible that from the adjacent footpath there is effective screening, while from the opposite side of the street there is not.

8 There is also a more fundamental problem with the proposed condition. If the appearance of a building is so bulky that more than half of it has to be concealed, then it should not be approved. The purpose of landscaping is to soften the appearance of buildings, not to make them disappear. I note that the council has zoned this area for residential development. It is therefore to be expected that it will have the appearance of a residential area, not a national park. If the houses appear too “McMansion-like”, the problem should be addressed by controls relating to the houses, not by attempting to make them invisible.

9 I accept Mr Pigott’s evidence to the extent that a single tree in the front is not enough and have therefore required two banksia integrifolias. The condition is amended:

Planting is to be in accordance with the landscape plan numbered LP/01D dated January 2005 (as amended 29 April 2005) prepared by Stuart Pittendrigh, except that a total of two banksia integrifolia trees (instead of one as shown on the drawing) are to be planted in the northern frontage.

Condition D38

10 This condition states:

The finished surface material shall be in keeping with the following:
Roof: Colourbond: Bushland or Jasper
Walls: Render: Dulux Brownstone or darker.

11 The basis of this condition is in the council’s Development Control Plan 21 (the DCP), which sets out a list of dark colours that are acceptable for external use on buildings in the Bilgola locality. The desired outcome of using dark and earthy colours is to harmonise with the natural environment and to minimise the visual prominence of buildings.

12 The applicant accepts the roof colour but wants to use a lighter colour for the wall of the building. The applicant tendered a colour palette and wants to use as the main colour a light beige colour called British Paints Romantic Chintz. The applicant also tendered a mid-beige colour sample called British Paints Zulu Plain, which it proposes to use for trimmings. In my opinion, this latter colour would achieve the desired outcomes in the DCP.

13 The condition is therefore amended as follows:

The finished surface material shall be in keeping with the following:
Roof: Colourbond: Bushland or Jasper
Walls: Render: British Paints Zulu Plain or darker.

14 In coming to the above conclusion I took into account that the majority of existing buildings in the locality are light coloured. A dark building might therefore stand out rather than recede into the landscape. I note that black is a desired colour in the DCP, so that a black building is considered acceptable.

Condition D105

15 This condition states:

The landscaping is to be maintained for the life of the development.

16 The parties argued about how long the life of the development was. Mr Pittendrigh suggested 40 years. In my opinion this argument has an air of unreality about it. A more appropriate wording of the condition is:

The landscaping is to be maintained at all times.
Orders

1. The appeal is partly upheld.

2. Development application to alter and extend the existing house on lot 46 DP 16393, known as 45 The Serpentine, Bilgola is determined by the granting of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 1 and E.

________________
Dr John Roseth
Senior Commissioner