Moss J. L. v Kiama Municipal Council
[2003] NSWLEC 412
•12/22/2003
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Land and Environment Court
of New South Wales
CITATION: Moss J. L. v Kiama Municipal Council [2003] NSWLEC 412 PARTIES: APPLICANT
RESPONDENT
Jennifer Leanne Moss
Kiama Municipal CouncilFILE NUMBER(S): 10408 of 2003 CORAM: Murrell C KEY ISSUES: Development Application :- Construction of a dwelling house
rural scenic protection area
impact on rural character of areaLEGISLATION CITED: Environmental Planning and Assessment Act
Illawarra Regional Environmental Plan No. 1
Kiama Local Environmental Plan 1996CASES CITED: Willoughby Municipal Council v Huxley Homes Pty Ltd DATES OF HEARING: 23/10/03 and 24/10/03 EX TEMPORE
JUDGMENT DATE :
12/22/2003LEGAL REPRESENTATIVES:
APPLICANT
Mr G Gleeson, solicitor
of Morton & HarrisRESPONDENT
Mr P Moggach, solicitor
of Kearns and Garside
JUDGMENT:
10408 of 2003 Murrell C 22 December 200 Jennifer Leanne MossIN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Applicant
v Kiama Municipal Council
Respondent Judgment
1. This is an appeal under s 97 of the Environmental Planning and Assessment Act -against Kiama Municipal Council’s refusal of a development application for the construction of a dwelling house in the rural zone.
2. The subject property is known as lot 103 DP 1035721, Alne Bank Lane, Rose Valley. When the matter came to this Court there were a number of issues identified by the council in a Statement of Issues and before these class 1 proceedings was the subject of a question of law determined by Bignold J and the result of his judgment was that the original subdivision plan which created a covenant over the subject land in fact did not need to be varied for the determination of the class 1 appeal.
3. The Statement of Issues included matters such as visual impact with respect to the height and bulk of the dwelling and the siting on the subject property and the inability to landscape the proposal. An issue was raised about the external finishes and colours of the subject dwelling but that was subsequently resolved by a condition.
4. With respect to the restriction as to user the council contended that the covenant or the restriction as to user would not be complied with and therefore the proposed development was inappropriate.
5. Issue 3 was that the proposal is contrary to the Kiama LEP in terms of the aim of the plan and certain objectives of that plan in particular to protect natural and built environmental features of the council’s area, to ensure the preservation of the landscape and special scenic quality to the council’s area and the aim being to preserve the essence of the special qualities of the council’s area.
6. The council also considered that it was contrary to the objective of the zone to protect the landscape quality of the rural area and that the cumulative effect of the proposal was inappropriate in terms of cl 12(2) of the Kiama LEP.
7. It was also contended by council that the proposed development is contrary to the Illawarra Regional Environmental Plan 1 concerning scenic attributes of rural areas and also contrary to the provisions of DCP 35 which whilst it was a draft at the time the appeal was lodged was approved by the council and as such it is an instrument for the Court’s consideration in this matter.
8. The issues in the DCP relate to the single storey height limit and the siting of dwellings in sensitive rural locations. On behalf of the council evidence was given to the Court by Ms Teresa Smyth who is an assessment officer, town planner with Kiama Council and Dr Richard Lamb, a visual assessment consultant. For the applicant evidence was given to the Court by Mr Neil Kennan, a consultant town planner.
9. As I stated, the essence of the case in many respects can be summed up as the proposed dwelling house is inappropriate because of its size and bulk. The issue of the dwelling house not being contained wholly within the envelope was not considered to be determinative it was agreed between the parties. By way of comment it is noted that the building envelope provided in the restriction as to user is one that was developed after the subdivision and it is noted that the location of the footprint is somewhat changed to that as originally envisaged. The subject dwelling house is some seventy five to eighty percent within the building footprint contained in the restriction as to user.
10. Council is of the opinion that the proposed dwelling would be out of character with the rural nature of the area and in that regard Dr Lamb considered that the proposed dwelling would create an intrusion into the natural scenic landscape which would be significant in his opinion and that the proposal is one that should be contained not only within the building envelope but be one that is of single storey and of a smaller scale and bulk.
11. In terms of the LEP 1996 for Kiama the aims of the plan include to preserve the essence of the special qualities of the council’s areas. The zone objectives, the subject land is one that is contained within the rural A zone and that includes to protect the landscape quality of the rural area. The cl 9.3 of the plan has the standard provision that in granting consent consideration must be given as to whether the development is consistent with the objectives of the zone. The other objectives of the zone include to provide suitable land for agricultural use and to protect the agricultural potential of land, to prevent fragmentation of rural land and to enable uses that are compatible with the rural use of the land. The only one contested was to protect the landscape quality of the rural area.
12. It is noted that the subdivision that created the subject lot was a subdivision which allowed for the viability of the adjoining agricultural pursuit to be increased by the excision of certain land from the area surrounding the subject lot to make for a larger holding providing a 6.6 hectare holding where the subject dwelling house is proposed.
13. The rural A zone, council shall not grant consent unless it has considered the cumulative effect of similar proposals if consent is granted. Therefore precedent was seen as an issue by the council.
14. In terms of height restrictions for buildings there is generally a two storey height restriction. The Court had the benefit of the experts conferring and in that regard the two town planners conferred and it was agreed that the proposed dwelling house meets the two storey requirement of cl 50 of the LEP and that by virtue of the wording of the development consent for the subdivision there is flexibility in the location of a building envelope on the site and that the proposed dwelling house meets the 7 metre restriction contained in DCP 8.
15. It was also considered it is not possible to provide a condition to provide for adequate or suitable landscaping in terms of Ms Smyth considering that the proposal could not be ameliorated by landscaping.
16. The Illawarra Regional Environmental Plan contains objectives for rural lands which is to retain the rural productivity and the valuable natural environments to be protected as well as to retain the scenic attributes of rural areas.
17. The Development Control Plan that is of the most relevance to the subject development application is the Kiama DCP 35 Rural Dwellings Design and Siting Guidelines which became effective from 23 July 2003. Prior to or when the proposed development application was under consideration there was a draft plan which had similar provisions.
18. The plan is to protect the rural character and amenity of Kiama and the guidelines seek to achieve a number of objectives including to protect the amenity of the locality in which the development is situated, to ensure that development preserves and complements any natural characteristics of the area and to achieve well designed and sited buildings to complement the landscape.
19. The DCP also contains a number of performance criteria and standards which is the preservation of the rural character and that the bulk and scale is limited such that it does not dominate the surrounding rural area and that the materials and colours are appropriate for the landscape. Performance criteria and development standards which are grouped together include that buildings shall not be sited so that they are located or projected by ridge lines or knolls and that dwelling houses and outbuildings shall be single storey except where the second storey is concealed within a loft space and dwelling houses shall present a small form when viewed against the surrounding landscape and not dominate the landscape.
20. Dwelling houses shall be part of an integrated landscape plan also which achieves an appropriate setting. in terms of the amenity of the area the aims and standards are to preserve the rural character, minimise impact on adjoining properties and performance criteria and development standards include minimum setbacks and the development to be landscaped.
21. It is noted cl 9 of the DCP provides for council may permit a variation to the standards only where special circumstances exist and where there is justification and it is consistent with the objectives of the plan.
22. The other relevant controls are DCP 8 which provides for a two storey limit in areas where dwelling houses can be erected and there is a landscape DCP which was adopted by the council in March 2003 which is also relevant to these proceedings.
23. It was agreed that the photo montages provided by the applicant are only indicative in terms of the location of the subject dwelling on the rural landscape. Therefore the Court has not relied upon them in terms of the question of their inaccuracy.
24. The subject site is visible from the Princes Highway travelling south and Mount Panorama as well as Rose Valley Road. It is noted that the site cannot be accessed from Rose Valley Road, however there are positions along Rose Valley Road where the subject site is visible. The site is some one kilometre from the Princes Highway at its closest point.
25. The 88 instrument which covers the subject site and which was placed on the subject land when the subdivision was approved requires that a building be built within the area shown on the plan denoted K which as I stated has been looked at in terms of the location of this site.
26. The top of the ridge in this location is at an approximately 107 metre contour and the house is located approximately between the 97 to 100 contour. There is a stone wall which is of unique heritage significance to the Kiama area which is on the subject site and it is at contour 101 and the top of that at approximately 102.
27. There is no dispute that the area has high scenic quality. The issue for the Court is whether the current development application is satisfactory and whether in fact it would be consistent with the objectives of the plan and the development control plan in terms of fitting in with the landscape.
28. As I said, the council was concerned about the size of the dwelling and the height of the dwelling not complying with the single height restriction of the covenant. I have assessed the development application against all the relevant controls and I am satisfied that the proposed dwelling house would not be an unsatisfactory or unreasonable intrusion into the skyline or the horizon.
29. For the majority of vantage points from where the proposed dwelling is located it will not be visible above the ridge or protrude into the horizon. There will be places along Rose Valley Road where the proposed dwelling house will protrude and there will be limited opportunities from the Princes Highway where the proposed dwelling will protrude. However given the distance involved and given the context in which I must consider this application in terms of the height of the ridge, in terms of the size of the parcel of land and in terms of its location and visibility from the public domain I am satisfied that it will not offend or be inconsistent with the objectives of the council’s planning regime in both its LEP and its Development Control Plan.
30. The proposed development or dwelling house is a large dwelling house, it is some 44 metres long and has a height of 9.7 metres that is two storeys. The roof pitch is not excessive in terms of other roof pitches within the vicinity of the area. The dwelling house as I stated is large, however, it 'fits in' in its context and in terms of the location and size of the site and its setting. As such I am satisfied the development is appropriate.
31. It is proposed by way of condition that there be appropriate landscaping not to the extent that it will screen the dwelling but in terms of the eastern facade but to complement and soften the built form of the proposed development.
32. I agree with the applicant’s evidence that there is ample room for landscaping of the proposed dwelling house. It is noted that a tennis court is proposed at the front of the dwelling on the eastern side and as I stated the total built upon area is very small in terms of the size of the allotment.
33. In terms of precedent while I consider this is a relevant matter and it is one that is noted in council’s controls in terms of the cumulative impact once again I am of the opinion that the proposed development is not objectionable in itself in terms of its height and bulk and fit in the landscape and I am also satisfied that it would not create an undesirable precedent.
34. It is noted in council’s evidence that many of the dwelling houses in this rural area are located on the valley floors. Clearly that cannot be the case where the land is on the upper hillsides but nonetheless this dwelling house has been sited down from the top of the ridge and whilst it does not comply entirely with the building footprint as depicted in the 88 instrument I am satisfied that there will be no adverse impact or very minor adverse impact in terms of its visibility protruding above the horizon that would warrant refusal of this development application.
35. As I stated it is a large home, however it would have commensurate area for landscaping in terms of its setting. It is not a large home which is being sought to place on a small allotment, it will have a most ample curtilage in terms of its setting.
36. I have given real, genuine and proper consideration to the controls as outlined in council’s development control plans and I am satisfied that the proposed development will satisfy the overall objectives as required in terms of the DCP being a focal point in the Court’s assessment of this development application. Variation can only be considered where it is consistent with the objectives of the plan, that is, Development Control Plan 35 and that includes to protect the amenity of the locality and to ensure the development does not dominate the natural characteristics of the area.
37. I am satisfied that the proposed development is generally consistent with the DCP requirements and that a variation in the circumstances is justified. Clause 64 of the Kiama LEP allows for the suspension of covenants and instruments and in terms of s 39.2 of the Court Act the Court can vary such instruments or suspend such instruments standing in the shoes of the council. In this regard it is noted that the judgment of Willoughby Municipal Council v Huxley Homes Pty Limited, a decision of Stein J in 1989, NSWLEC 135, states that it is appropriate for the Court to vary a restrictive covenant in certain circumstances .
38. The DCP as I stated is one that was adopted by council subsequent to the development application being lodged and determined by the council but prior to the Court’ hearing the matter and I have given that weight in terms of my consideration and have considered it as I stated as an important element in the planning regime. I am satisfied however that this proposal will not offend the objectives.
39. The objective of a single storey dwelling is one that, especially in terms of the visibility of rural dwellings, council has a preference for and I have considered this. However the circumstances of this case are such that the proposal is satisfactory in terms of it not being an unreasonable visual intrusion into the rural landscape of the area and it will not detract from the high scenic value of the area. And in this regard it will not dominate the skyline although it will be visible from certain locations when travelling along Rose Valley Road in particular and certain parts of the Princes Highway but generally it will sit below the ridge line in this location.
40. The applicant submitted that there is no obligation to hide the building and I agree with this approach. I consider that the landscaping condition that is imposed is to allow for a landscape setting to complement the building. It is not necessary in the Court’s assessment to totally screen the eastern facade of the dwelling provided the subject dwelling is softened by appropriate landscaping and in this regard it is noted that the provisions of council’s landscape DCP are referred to in the condition and the landscape DCP sets out a number of criteria to ensure that the landscaping could be appropriately and adequately provided for in the subject development.
41. Similarly there is a condition with respect to materials and finishes. Originally it was proposed that the dwelling house be salmon /peach but in terms of the council’s controls it is more appropriate that the colours of the dwelling house are ones that will sit in harmony with the landscape and in that regard there is a condition attached.
42. There was general agreement as to the conditions during the course of the proceedings and they are the conditions that will be attached and shown as annexure A in the orders of the Court.
44. Therefore the orders of the Court are:43 .In summary, I have considered all the controls and having regard to the merits of this development application I am satisfied that in terms of an assessment under s 79C including all the relevant controls, that the site is suitable for the proposed development and it will not adversely impact on the natural environment.
1. The appeal in respect of the property being lot 103 DP 1035721, Alne Bank Lane, Rose Valley, is upheld.
3. The exhibits except for 9 and A are returned.2. The development application submitted to Kiama Municipal Council, and as amended, for the erection of a dwelling house on the above land is determined by the granting of development consent subject to the conditions contained in annexure A.
______________________
J S Murrell
Commissioner of the Court
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