Magiros v Sutherland Shire Council

[2012] NSWLEC 1286

Land and Environment Court

New South Wales

Medium Neutral Citation:	Magiros v Sutherland Shire Council [2012] NSWLEC 1286
Hearing dates:	15 October 2012
Decision date:	16 October 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	CONSENT ORDERS: Dwelling house, SEPP1 objection to development standards for height, landscape area and floor space ratio
Legislation Cited:	Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment State Environmental Planning Policy No. 1 Development Standards; Sutherland Shire Local Environmental Plan 2006;
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Wehbe v Pittwater Council [2007] NSWLEC 827; Winten Property Group v North Sydney Council [2001] NSWLEC 46;
Texts Cited:	Sutherland Shire Development Control Plan 2006
Category:	Principal judgment
Parties:	Anthony Magiros (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel Mr A Galasso SC (Applicant) Solicitors Ms M Mallos Maddocks Lawyers (Applicant) Ms J Amy Sutherland Shire Council (Respondent)
File Number(s):	10679 of 2012

Judgment

1. Mr Magiros lodged Development Application No. 12/0151 with Sutherland Shire Council on 8 March 2012 seeking consent to demolish an existing dwelling house and garage and erect a new dwelling house and garage to be connected to an existing two storey ancillary 'recreation building' located at a lower level to the proposed new dwelling house.

1. The council refused consent and Magiros is appealing that decision.

1. The matter was mediated by another Commissioner of the Court and as a result of that process, the applicant has prepared amended plans that resolve the council's contentions. Leave has been granted to the applicant to rely on those amended plans.

1. The parties are seeking consent orders from the Court.

Background and the proposal

1. The original application proposed the construction of a new three storey dwelling in the approximate location as the existing dwelling and provided for the retention of the ground floor slab. As the proposal did not comply with development standards contained within Sutherland Shire Local Environmental Plan 2006 (the LEP) in relation to number of storeys, height, gross floor area and landscaped area, the application was accompanied by an objection to those standards under the provisions of State Environmental Planning Policy No. 1 Development Standards.

1. In its determination of the application, the council identified 16 reasons for refusal including that it was of the opinion that the objection to the development standards was not well founded. Other reasons for refusal had regard to the scale of the building, encroachment of the foreshore building line and non-compliance with planning controls.

1. The plans now before the Court have reduced the footprint of the upper level of the dwelling house and provided increased setbacks, increased the area of the site to be landscaped, amended the northern building elevation to reduce the bulk and visual impact of those walls as viewed from the water, amended the wall to the western elevation by a change to finishes to also address building bulk and removal of encroachments from council owned land and the reduction in reclaimed area by relocation of part of the existing sea wall.

The site and its context

1. The site, known as No. 2 Madeira Street, Sylvania, is located on the eastern side of Madeira Street at the waterfront to the Georges River and extends to the north from a cliff-top near the northern termination of the Madeira Street roadway, down to the waterway. It is an irregular shaped allotment with a site area of 1119 sq m.

1. The landform of the site slopes steeply down to the river and is distinguished by a significant rock cliff/cutting and terraced slopes. This cutting transects the western boundary of the site approximately 12 m from its southern end, extends east to the south-eastern corner of the site and then north, along the eastern boundary of the site for some 16 m. The cliff is some 8.5 m from approximately RL17.35 at its base to RL25.8 at its top. Below the cliff, the land steps down to the waterfront in terraces formed by sandstone retaining walls and a natural rock outcrop.

1. The site has been developed in four areas, the first being a detached two-car garage situated at the top of the site and accessed off Madeira Street. A pedestrian pathway connects this to the main building platform, which is located between the cliff and the foreshore building line. That area contains the existing two-storey dwelling house and a clothes drying yard. Adjacent to the 10 m foreshore building line that applies to the site, is a two-storey ancillary building containing a spa, gymnasium, rumpus, change room and sauna. This structure has a roof top terrace, which incorporates a swimming pool that relates to the ground floor level of the existing house.

1. Between the foreshore building line and mean high water mark (MHWM) are several sandstone faced retaining walls, paths, paved areas, stairs, terraces and a boatshed, part of which projects beyond the MHWM. A boat ramp, slip rails, pontoon and four mooring poles extend beyond the MHWM as does a reclaimed area retained by a seawall.

1. Development in the vicinity of the site comprises a mix of multi-unit housing to the immediate south and single dwelling houses to the east. The road reserve of Madeira Street extends northwards to the water and forms the western boundary of the site. Land to the west of the unmade roadway is a council owned, landscaped reserve. Further to the west are detached dwelling houses with significantly vegetated foreshore areas.

The planning controls

1. The site is located within Zone 2 - Environmental Housing (Scenic Quality) under the LEP and the proposal is permissible with consent. A 10 m foreshore building line applies to the site in accordance with clause 17. The land associated with the site below MHWM is located within Zone 16 - Environmental Protection Waterways.

1. Other clauses relevant to the application are:

• Clause 3 - Aims of plan;
• Clause 11 - Zoning Table;
• Clause 17 - buildings or works on land traversed by a foreshore building line;
• Clause 18 - Development in or adjacent to waterways;
• Clause 33 - Building height;
• Clause 34 - Building density;
• Clause 36 - Landscaped area;
• Clause 48 - Urban design - general; and
• Clause 49 - Urban design - residential buildings.

1. Sutherland Shire Development Control Plan 2006 (the DCP) contains further planning controls and those relevant to the application are contained in Chapters 1, 3, 4 and 7.

1. Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment (REP20) also applies to the application with Clause 5 and Part 2 relevant considerations.

The evidence

1. The hearing commenced on site and evidence was heard from a number of objectors who reside in the adjoining multi-unit housing development to the immediate south of the site. These residents all raised the issue of non-compliance with the council's planning controls and the loss of views that would occur if the development were approved. A view of the objector's site including the impacts of the development from within one of the townhouses, from common property and from the northern courtyards was also conducted. The site and adjoining developments were also observed from the river.

1. Expert planning evidence was provided by Mr A Minto for the applicant and Mr M Naylor for the council. They agree that the amendments made to the plans have addressed the contentions raised by council in regard to the original plans and the reasons for refusal to grant consent.

1. Mr Minto prepared objections to the development standards for building height, floor space ratio and landscaped area that reflect the amended plans. Those objections have been prepared in accordance with the guidance of this Court in Winten Property Group v North Sydney Council [2001] NSWLEC 46 and Wehbe v Pittwater Council [2007] NSWLEC 827.

1. Mr Naylor has assessed those objections and aggress that they are well-founded in all cases.

1. The issue of view loss has also been the subject of further reports by the experts and they conclude that, based on the planning principles outlined in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, the impact of the proposed development on the adjoining property is minor and acceptable and the view sharing is reasonable.

Conclusion and findings

1. Having regard to the evidence available and the benefit of the site view, I am satisfied that the objections to the development standards should be upheld and the Orders sought should be made.

1. In relation to the development standards for floor space ratio and landscaped area, it is particularly important to note that the existing development does not satisfy these standards. The amended plans provide for approximately twice the amount of landscaping that currently exists on the site and it has been designed to address the council's primary contention of the impact of the development as viewed from the waterway. Mr Naylor submits that the removal of part of the seawall and the provision of screen planting and canopy trees will suitably screen and soften the appearance of the building and result in a development which has a reasonable fit with the desired character of this foreshore area. He is also satisfied that the objectives of the development standards are satisfied and the numerical breach of the floor space ratio controls is appropriate in the circumstances of the case and having regard to the adjoining development to the east of the site.

1. The impact of the development on views is to an area of water when viewed to the north and north-west from the adjoining development. That adjoining development enjoys panoramic views from beyond Captain Cook Bridge to the east, along the Georges River, including Tom Uglys Bridge and the land/water interface including the significant landmarks of the Kangaroo Point peninsula to the west and includes Bald Face Point. The development has no affect on those views.

1. I accept the agreed position of the planners in relation to view loss and do not consider that the loss of part of the water portion of the view is so significant to warrant refusal of consent, particularly having regard to the fact that the greatest impact on view loss is from the swimming pool area and not from any of the living areas of the dwellings although some minor loss of water views from those living spaces would occur.

1. The impact of view loss is the result of the height of the building and I note the agreed position of the planners that the objection to the height development standard is well founded. This conclusion has regard to the objectives of the control, the significantly altered landform of the site due to previous excavation, which results in a ground level lower than adjoining properties, the fact that the development has no adverse impact on daylight access to adjoining properties and that the bulk of the building has been appropriately reduced through the changes made to the plans. I agree with the planners' evidence that, whilst there will be some view loss of a portion of the water component of the view, the impact does not affect the important views, is acceptable and provides for reasonable view sharing in accordance with the principles outlined in Tenacity.

1. I am satisfied that the proposal is lawful and complies with the relevant provisions of the LEP and where there is non-compliance with development standards, the extent of non-compliance is reasonable. For that reason, I conclude that the SEPP1 objections lodged by the applicant to address those standards should be upheld.

1. There is no reason why the Consent Orders should not be made. By consent, the Orders of the Court are:

(1)   The appeal is upheld.

(2)   The objections pursuant to State Environmental Planning Policy No. 1 in relation to landscaped area, building density and building height are upheld.

(3)   Development Application No. 12/0151 for demolition of an existing dwelling house and garage, and construction of a new dwelling house and garage in their place, is determined by the granting of development consent, subject to the conditions in Annexure 'A'.

(4)   The exhibits, other than exhibits A and B, can be returned.

_________________

Sue Morris

Commissioner of the Court

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Decision last updated: 16 October 2012