Muscat J and v Sutherland Shire Council - [2004] NSWLEC 151

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Muscat J & V v Sutherland Shire Council [2004] NSWLEC 151

PARTIES:
APPLICANT
Joe and Victoria Muscat
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10391 and 10392 of 2003

CORAM: Murrell C

KEY ISSUES:
Development Application :- Adverse impacts on foreshore and adjoining properties
s96 modification application
application for garage
variations to floor space ratio and landscaped area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1
Sutherland Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING: 28/10/03 and 29/10/03

DATE OF JUDGMENT: 04/08/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Harris, barrister
instructed by Mr M Vaughan, solicitor
of Johnson Vaughan
RESPONDENT
Mr J. Cole, solicitor
of Abbot Tout Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10391 and 10392 of 2003

Murrell C

8 April 2004

Joe and Victoria Muscat
Applicant

v

Sutherland Shire Council

Judgment

Introduction
1. This judgment is for two appeals in respect of the property known as 60A Woodlands Road, Taren Point. The first appeal, 10391 of 2003, is against council’s refusal of a development application for the construction of a garage at the rear of the property where currently an open carport stands. The second appeal, 10392 of 2003, is against council’s refusal of an application to modify a development consent issued by the council in 2001 under s 96 of the Environmental Planning and Assessment Act. The modification application is for an upstairs balcony to extend for almost the width and depth of the roof area below and for an extension to the concrete overhang with pillars under located beside the door on the ground floor balcony facing the foreshore.
Site and environs
2. The land, the subject of the development application and modification application, is lot B in DP 394350. The site has a frontage to Woolooware Bay of approximately 13 m and is accessed from Woodlands Road via a 3m right-of-way that burdens No 60. The land is about 43 m deep on the northern and southern boundaries and has a western boundary of 14.8 m with the eastern boundary 13 m where it adjoins the Bay, yielding a site area of approximately 580 square metres. The recent survey for the site shows a sea wall reclaiming an area of approximately 10 m forward of the mean high water mark. However, the notation on the survey states it was limited to determining the area defined by title boundaries and landscaping features and does not mean that this is the area of land available to the title holders.
3. The Woolooware Bay adjoins the Georges River/Botany Bay and opposite the subject site there is a nature reserve. To the south of the subject site there is a single storey dwelling house and this property adjoins a public open space area on the foreshore known as Woodlands Reserve. The surrounding area can be described as generally a low density residential area single occupancy of 1 and two-storey dwelling houses.
The issues
4. The issues for the garage application as stated in the Statement of Issues tendered are:

Whether the proposal is acceptable pursuant to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (NSW) ('EPAA') in that it does not comply with the maximum floor space ratio prescribed by cl 35(2) of the Sutherland Shire Local Environmental Plan, 2000 ('SSLEP') and there has been no objection has been submitted pursuant to cl 6 of State Environmental Planning Policy No.1 - Development Standards;
Whether the proposal is acceptable pursuant to s 79C(1)(a)(i) of the EPAA in that it does not comply with the minimum landscaped area prescribed in c1 36(2) of the SSLEP in that the proposed development and there has been no objection has been submitted pursuant to c1 6 of State Environmental Planning Policy No.1 - Development Standards;
Whether there is insufficient landscape area on the site to satisfy the objectives of tree retention, infiltration and balancing built form;
Whether the proposal is acceptable pursuant to s 79C(1)(a)(iii) of the EPAA in that it does not comply with the minimum side boundary setbacks prescribed in c1 10.5 of the Development Control Plan for Dwelling Houses in Residential 2(e1) Zones which will result in the adjoining development being adversely affected in terms of visual bulk;
Whether the proposal is acceptable having regard to its visual impact and architectural integrity with the existing development on the site. This includes adverse visual impact on neighbours. The development will be contrary to the scale and character of the area;
Whether the proposed development would be in the public interest having regard to the issues raised by resident objectors;
Inaccuracies of the plans and details submitted with the development application having regard to setback dimensions and sections and drainage details.

Whether the development is substantially the same as that granted consent and accordingly the proper subject for a s 96 application.
Whether the proposal is acceptable pursuant to s 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979 (NSW) (“EPAA”) in that it does not comply with the objectives for development within the 2 (e1) Residential Zone contained in c133 of the Sutherland Shire Local Environmental Plan, 2000 ('SSLEP') in that the proposed development fails to sufficiently deal with its impact on the visually sensitive locality;
The development does not adequately address its visual impact to the 7(a) waterway zone nor the objectives of clause 19 of the Sutherland LEP 2000 for the Foreshore Protection area;
The development is in breach of the Foreshore Building line set under cl 20 of the SLEP 2000;
Whether the proposal is acceptable pursuant to s 79C(1)(a)(i) of the EPAA in that it does not comply with c1l 30(a) & (d) of the SSLEP in that the proposed development fails to sufficiently consider the impact on adjoining development, buildings and open space from loss of views and privacy by virtue of its size, bulk, height and the amount of landscaped area;
Whether the proposal is acceptable pursuant to s 79C(1)( a)(iii) of the EPAA in that it does not comply with the objectives contained within Part 10.1 of the Development Control Plan for Dwelling Houses in 2(el) Zones in that the proposed development does not give due regard to preserving exiting views nor does it minimise its impact on the amenity of the adjoining development and surrounding development;
Whether the proposal is acceptable pursuant to s 79C(l)(a)(iii) of the EPAA in that it does not comply with the objectives contained with Part 10.6 of the Development Control Plan for Dwelling Houses in 2 (e1) Zones in that the proposed development does not give due regard to maintaining or protecting the amenity, use, privacy and enjoyment of the adjoining properties;
Whether the proposed development is acceptable pursuant to s 79C(1)(b)(c) &(e) of the EPAA in that it fails to sufficiently consider the health and safety of the community; and
Whether the proposed development is acceptable pursuant to s 79C(1)(b)(c) &(e) of the EP AA in that it fails to sufficiently consider the impacts it will have on the adjoining development, buildings, open space from loss of sunlight, views. privacy and by virtue of its size, bulk and height and adverse impacts on the amenity of the adjoining properties;
Whether the proposed development would be in the public interest having regard to the issues raised by resident objectors;
Inaccuracies of the plans and details submitted with the development application having regard to setback dimensions and sections and drainage details.

The proposals
5 . The council granted consent 21 January 2000 for major alterations and additions to the dwelling house on the subject land. The s 96 application is to modify that consent by converting the first floor setback area to the second storey to provide a balcony area with dimensions of approximately 11 m wide with a depth of between 7 to 8 m. The dwelling has a 1 m side setback to the boundaries as will the proposed balcony with have a setback to the mean high water mark of about 3 m. It is proposed that a glass balustrade be provided and that around to the first level concrete slab. The application approved by the council provided for a small juliet balcony at the first floor level with dimensions of approximately 4.5 m length and 1.5 m wide .

6 . The other works in the s 96 application to have already been carried out. That is provides an extension to the concrete overhang over the ground floor doors that open to a terrace area adjoining the foreshore and the pillars to the doors opening to the terrace at the raised ground level. This has the effect of reducing the setback of the dwelling to less than 3 m from the foreshore.

7 . The application for the detached garage at the rear of the property has a setback from the northern boundary varying between 200 mm and 800 mm and for the western boundary the setback is approximately 1 m. The dimensions of the garage are approximately 7 m by 5 m with a height of 3.44 m constructed of colour bond roof and walls with a roller door. An amendment to the materials was proposed to provide masonry/brick walls.

Evidence and submissions
8. On behalf of the applicant evidence was given to the Court by Mr John Cox, consultant town planner and Mrs Muscat, a joint owner/applicant of the subject property.
9. For the respondent council evidence was given to the Court by: Mr Black, town planner with Sutherland Shire Council; Mr Stanley Nelson, the adjoining resident owner at no 58A ; and Mr Bill Saville, the resident owner of no. 64 .
10. A site inspection was undertaken in the presence of the parties and expert planning reports were tendered during the proceedings.
Planning Controls and Guidelines
Sutherland Local Environmental Plan 2000 (SLEP 2000)
11. The site is zoned residential 2 (e1) under the above SLEP.
12. The objectives of the zone are:

A residential environment in an environmentally and visually sensitive locality:

(a)

where the scale, amenity and general character of the area is preserved and

(b)

where the streetscape and views to the land from the waterways are characterised by 1

and 2

storey detached residential buildings and

(c)

which is protected from visually intrusive development, especially where buildings or works may be viewed from the waterway or on sites which contain significant vegetation or natural features which should be preserved and

(d)

where non-residential uses provide necessary services to the local community neighbourhood without adversely affecting residential amenity and

(e)

where the natural environment is protected from development that would harm the foreshore, escarpment and habitats in the locality of the waterway.

The objective of the foreshore scenic protection area is to limit the scale of development and protect the landscape and visual character of the foreshore areas of Sutherland Shire Council.

A foreshore scenic protection area is shown on the maps by hatching. It applies to land within a number of zones next to Bate Bay, Port Hacking, the Georges River and Woronora River.

Buildings in a foreshore scenic protection area are required by the development control tables to have more landscaped area than buildings outside the area

preservation and enhancement of the natural features and vegetation and enhancement of the natural features and vegetation near where the land meets the water;

restoration of the land below the foreshore building line, so far as practicable, to the natural state with a minimum of intrusion of man made structures;

no building below the foreshore building line other than buildings accepted by this clause;

a significant reduction in the number of structures below the foreshore building line, particularly on redevelopment of a site;

conservation and enhancement of waterfront buildings of heritage value;

avoidance of adverse ecological effects on the waterway; and

public use of the intertidal areas below the mean high water mark where appropriate.

When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it.

(a)

The impact that the proposed development may have on adjoining development, buildings and open space from the loss of sunlight, views and privacy,

(b)

the effect of the proposed development on the quality of the streetscape,.

(c)

the cumulative impact of successive development on the general character of the neighbourhood;

(d)

the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area,

(e)

the retention and enhancement of existing vegetation,

(f)

any adverse impact on the natural and built environment,

(g)

the location of the proposed development in relation to potential risks, including flooding, bush fire and other hazards,

(h)

the impact that the proposed development may have on any public area or waterbody from loss of sunlight, views and visual amenity.

14 . The proposed development is permissible in the zone with consent

15 . There are a number of development standards contained within the LEP. In particular cl 35(b) provides a floor space ratio of 0.45:1 for the maximum gross floor area allowed on the allotment.

16 . Clause 36 provides for a minimum landscaped area or 50% in the 2 (e1) zone.

17 . The clause 20 (1) (a) provides for a foreshore building line to be fixed and for the subject sites this is 10 m from the mean high water mark.

Development control plan for Dwelling Houses in 2(e) residential zones and Kurnell (DCP)

18 . This DCP requires a minimum setback to side boundaries of 1.5 m to provide separation between dwellings and ancillary buildings for privacy and to enable areas for landscaping however, variations can be considered in certain circumstances .Other clauses including the f.s.r., f.b.l. and landscape area reinforce the provisions contained in the LEP.

Assessment and findings
Proposed garage

19 . In my assessment of the development application for the proposed garage at the rear of subject site I will firstly deal with the objections under State Environmental Planning Policy No. 1 to vary the standards of the floor space ratio and the landscaped area provisions contained in cll 35 and 36 respectively of the Sutherland LEP.

20 . These are threshold questions to be determined, although in many respects the merits assessment of the application coincide with the SEPP 1 assessment.

Winten Property Group Ltd v North Sydney Council

Hooper Corporation Pty Ltd v Hornsby Shire Council

It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the court has urged a generous application of SEPP No. 1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression “circumstances of the case”, it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. … Furthermore it is now established that although the discretion conferred by SEPP 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

It seems to me that SEPP 1 requires answers to a number of questions (not necessarily in the following order). First is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is the compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded?…

.

(a)

to provide a degree of consistency for existing residents as to the side and bulk of potential buildings in their neighbourhood and

(b)

to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of zone.

24 . The applicant is seeking a variation from 0.45:1 to approximately 0.54:1. It was submitted that the garage would increase the floor space of the existing building on the site by some 12%, however, the percentage increase or numeric extent of the exceedance is not the test but rather whether the objectives of the standard are satisfied in the circumstances of the case. The aim of the Policy provides flexibility in the application of planning controls in circumstances where strict compliance would be unreasonable or unnecessary or tends to hinder the objects of the Act. In my assessment I have assessed the reasons and special circumstances provided on behalf of the applicant that are relevant to a planning assessment.

25 . The existing dwelling provides for a double garage and I am not satisfied in the circumstances of the case that the additional stand alone structure satisfies the objective of the FSR in that the detached garage would represent an over-development of the site -beyond community expectations and the environmental capacity of the zone. In this regard the 2(e1) is described as a residential environment in an environmentally and visually sensitive locality where the scale amenity and general character of the area is preserved. The proposed garage represents an overdevelopment of the site because it introduces unnecessary bulk on a site that is already developed to its maximum potential and that would have detrimental impacts on the amenity of the area, especially when viewed from adjoining properties.

26 . In terms of cl 7 of the Policy I am not satisfied that the objection is well founded and the standard is not unreasonable or unnecessary in the circumstances of the case. Therefore the SEPP 1 objection to vary the floor space ratio from 0.45:1 to .054:1 should not be allowed. The proposed garage structure is not considered to be appropriate for the subject having regard to the existing development of the site.

(a)

to ensure opportunities for tree retention and tree planting to preserve and enhance the tree canopy of Sutherland Shire;

(b)

to ensure that unbuilt upon areas balance the built form and

(c)

to contain urban run off flows by minimising impervious areas on residential development sites.

28 . The proposal is to build over an area that is generally hard paved where a carport currently stands, although the proposal is a larger footprint than the existing carport. The difference in amount of landscaped area between the proposal and the existing development is not great. It would appear that the existing preponderance and dominance of hard paved areas and the lack of soft landscaping would not necessarily be exacerbated by the proposed garage structure, or for that matter improved to any great extent. Therefore, as a SEPP1 variation this is not fatal to the application. But in a merits assessment the paucity of soft landscaped area, calculated at less than 10% of the site, is a significant if not determinative, reason for refusal of the application for the garage.

29 . The site inspection revealed that the objectives of the council’s landscaped area requirements in the LEP and DCP are not satisfied by the current development of the subject site and would continue to be not satisfied by the application for the garage structure at the rear of the site.

30 . By way of comment, on the basis of evidence to the Court, in the assessment of the alterations and additions that were previously approved by the council in DA 714 it would appear that the issue, amongst others, of landscaped area was not considered.

31 . Whilst it is not necessary for me to further consider the merits of the application given that it fails in terms of my SEPP 1 assessment on the floor space ratio exceedence, nonetheless I will provide comments on the overall merits of the application. In my assessment the proposed garage structure would present as a bulky element in terms of its height of the ridge and wall height and the setback from the rear and side boundary would not allow for appropriate landscaping in my assessment. The garage structure whether of colourbond construction or masonry/ brick would represent an overdevelopment of the site which is already dominated by built form and hard surfaces such that the objectives of the zone and the landscaping provisions are not satisfied.

Zhang v Canterbury City Council

1.

to avoid overdevelopment by controlling the area of the site occupied by dwellings;

2.

to limit the bulk of the dwelling

3.

to ensure dwellings are in scale with the size and shape of their allotment and the character of the surrounding development.

33 . It is noted that landscaped area generally includes areas used for gardens, lawns, shrubs or trees but would not include buildings, driveways, parking areas, communal drying yards and garbage storage areas, balconies or decks. In my assessment further development of the site for additional structures such as the proposed erection of the garage is not in character with the surrounding development and represents an overdevelopment of the site.

34 . The existing development of the subject site in terms of built upon area and hard surfaces does not contribute or satisfy the planning regime contemplated by the council in its LEP and DCP. While it may be said that the proposed garage structure does significantly alter the amount of landscaped area, it nonetheless introduces a built form that exacerbates the lack of landscaped area on the site, in particular, the lack of appropriate sized areas of soft landscaping to balance development of the site. This is not only inconsistent and incompatible but antipathetic to council’s planning regime.

Section 96 modification
35 . The application to change, what was previously the roof and setback area to the first level, to a balcony at the first floor level and to approve the existing pillars and additional overhang must firstly be considered in the context of whether it is substantially the same development to that approved by the council in terms of s 96(2)(a). I am satisfied that the application for modification is substantially the same development to that approved by the council in 2000.

36 . It is agreed between the parties that s 96 applications do not require an assessment under SEPP 1 in terms of variations to standards. I also note that retrospective approval, can be given in terms of s 96 to amendments and I preface my findings by saying that class 1 matters are not punitive proceedings but rather it is the planning merits of the application for modification that I must assess.

Michael Stanely and Associates v North Sydney Council

In determining an application for modification of a consent under this section the consent authority must take into consideration such of the matters referred to s 79C(1)as are of relevance to the development the subject of the application.

38 . The Court provided the applicant with the opportunity during the proceedings to amend the s 96 application to provide, amongst other things, increased landscaped area of the subject site, however, this was not accepted. As such, I must assess the overall s96 application as presented to the Court. That is, for an upstairs balcony to extend over the first level setback area above the ground floor and for the pillars with the extended overhang.

39 . Having regard to all the evidence to the Court I am not satisfied that the s 96 application should be approved and in this regard I am persuaded by the evidence presented on behalf of the council. In my assessment I agree that the modification to provide: pillars; additional overhang; and the proposed first level balcony with related balustrade would increase the bulk of the dwelling and would have an adverse impact on the foreshore when viewed from the public domain. A further deterioration of the visual impact when viewed from the foreshore is not justified and there is no attempt to provide ameliorative measures such as increasing the soft landscaped area and reducing the hard paved area as it presents to the foreshore.

40 . In my merits assessment the proposed modification has no regard to a site located on a foreshore in terms of the impact on the public domain when viewed from the intertidal zone, the Woodlands Road Reserve or the waterway. The subject site is within a foreshore scenic protection area and the s 96 modification exacerbates what is already an inappropriate development for a site located on the foreshore.

41 . Furthermore the proposed modification application when viewed from adjoining properties is not satisfactory and I agree with the respondent’s evidence that the proposed upstairs balcony would have unreasonable impacts on the adjoining properties to the north and south in terms of additional and unreasonable overlooking and privacy impacts from the proposed balcony that extends for the width of the dwelling, with a 1 m side boundary setback, and that is some 7 m deep. There is often a degree of mutual overlooking in areas that enjoy water views that is acceptable to the occupants of such properties. However, the planning principle to be observed here is whether the degree of overlooking privacy and related noise impacts is excessive and would create unreasonable impacts on adjoining properties. And I have concluded that the modification application to extend the first level balcony is excessive and unreasonable in the circumstances. The open space areas in front of the adjoining dwellings to both the south and north would be unreasonably and excessively overlooked by the proximity and excessive size of the upper balcony proposed in the modification application.

The site is totally concreted from the dwelling to mean high water mark. It does not offer any soft soil area or substantial landscaping to provide a transition or buffer between the waterway, foreshore building line and the dwelling and does not satisfy the objectives of cl 20(1). The dwellings are the side of the subject site, although encroaching on the SBL have a much greater setback and the scale of the development together with greater landscaped areas ... .

43 . The modifications in the application do not warrant approval because of the excessive and unreasonable impact on the foreshore and on the adjoining properties. The modifications are not only inconsistent but contrary to the provisions of the LEP and DCP. But even without the benefit of council’s planning controls and guidelines for development that may be contemplated under such controls, the modifications do not warrant approval in terms of s 79C(1)(b) because of the environmental impacts on both the natural and built environments. That is, the proposed modification would unreasonably impact on the natural environment of the waterway and foreshore and the adjoining residences to the north and south.

44 . Furthermore, although not determinative, the public interest would not be served by the granting of approval to the modification application in that the granting of consent would not provide for certainty in the planning process and inappropriate development by creep cannot be condoned. By way of comment it is unfortunate that in the original development application of 1999 that a statutory declaration to the effect that the rooftop area would not be used was taken into consideration in the assessment of that application as this could in no way form part of a merits assessment.

45 . The Court considers and has often held that it is inappropriate to use s96 to seek modifications that lead to incremental development that on a merits assessment is inappropriate and unreasonable. The Act provides for modifications to be assessed on their merits and under the relevant provisions of s 79C and it is on this basis that the application does not warrant approval.

46 . While the provisions of s 96 facilitate changes and retrospective approval, nonetheless, all applications for modifications must be assessed on their merits and the current application fails on a merits assessment. The current application for modification is excessive and unreasonable and the impacts are unsatisfactory. The proper test is not what the additional impact of the modification would create but rather an assessment of the total development.

Orders

State

Environmental Planning Policy No. 1

Environmental Planning and Assessment Act

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Muscat J and v Sutherland Shire Council [2004] NSWLEC 151

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CITATION:	Muscat J & V v Sutherland Shire Council [2004] NSWLEC 151
PARTIES:	APPLICANT Joe and Victoria Muscat RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10391 and 10392 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Adverse impacts on foreshore and adjoining properties s96 modification application application for garage variations to floor space ratio and landscaped area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 Sutherland Local Environmental Plan 2000
CASES CITED:
DATES OF HEARING:	28/10/03 and 29/10/03
DATE OF JUDGMENT:	04/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C. Harris, barrister instructed by Mr M Vaughan, solicitor of Johnson Vaughan RESPONDENT Mr J. Cole, solicitor of Abbot Tout Solicitors