O'Luen Australia Pty Limited v Pittwater Council

[2005] NSWLEC 32

Land and Environment Court

of New South Wales

CITATION:

O'Luen Australia Pty Limited v Pittwater Council [2005] NSWLEC 32

PARTIES:

APPLICANT
O'Luen Australia Pty Limited

RESPONDENT
Pittwater Council

FILE NUMBER(S):

11070 of 2004

CORAM:

Watts C

KEY ISSUES:

Development Application :- The visual impact of the height and bulk of the proposal

LEGISLATION CITED:

Pittwater Local Environmental Plan 1993, (PLEP1993)
Development control Plan/Locality Plan No LP 3 Palm Beach Ridgeline, (LP3)
DCP No 8 Heights of Buildings, (DCP8)
Pittwater 21, (Draft LEP)
Pittwater 21, (DCP)

DATES OF HEARING:

04/02/2005

EX TEMPORE JUDGMENT DATE:

02/04/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Legg, solicitor
SOLICITORS
Burridge & Legg

RESPONDENT
Ms E Duenow, solicitor
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

4 February 2005

11070 of 2004 - O’Luen Australia Pty Limited v Pittwater Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the refusal, by Pittwater Council (the council), of a development application to erect a carport on the western half of an existing elevated car parking platform at Lots 67 and 68 in DP 1046153 being Nos 132B and 132C Pacific Road, Palm Beach.
2 I visited the land in company with the parties on the morning of the on-site hearing. Present were:
• Ms E Duenow, solicitor of the council;
• Ms L Haidari, assistant development officer of the council;
• Mr S Barwick, Court-appointed expert, consultant town planner;
• Mr D Legg, solicitor of the applicant; and
• Mr R Burrows, applicant.
3 I have concluded that the application should succeed as the proposed carport roof would be likely to be of minimal visual impact in the landscape and the proposal as conditioned and as otherwise agreed would be satisfactory when considered under s 79C of the E nvironmental Planning and Assessment Act 1979.
4 In 1994 the Court considered an application for a carport and garage at the same address and this was dismissed. This application, which was different to the present proposal, was considered prior to the erection of a new dwelling on No 132C Pacific Road and thus was to be seen in a different context. I have distinguished the present application from this.

The land
5 The land is situated on the western side of Pacific Road and has an area of some 2,862m2. Two largely rectangular sites comprise the land and there is a steep, 75% grade, cross-fall from the rear boundary down the escarpment on the west and to Barrenjoey Road. As a result of the topography, the land is visually prominent from points on Pittwater and from Barrenjoey and Iluka Roads near Sand Point on Pittwater.
6 Existing on the land is an elevated reinforced concrete car parking structure supported on nine reinforced concrete columns straddling the boundary between both allotments being Nos 132B and 132C Pacific Road, Palm Beach. Erected on land below this elevated structure is a dwelling at No 132C Pacific Road. This prominent house draws the eye of the viewer away from the elevated slab. An elevated driveway gives vehicular access to and from this platform and Pacific Road.
7 The land is affected by landslip; however, the geotechnical engineer considers the proposal to be minor and an “acceptable level of risk” in this regard.

Relevant planning controls

Pittwater Local Environmental Plan 1993, (PLEP1993)
8 Under the provisions of the PLEP1993 the land is zoned 2(A) (Residential "A"), and the proposal is permissible with consent. Other planning instruments that apply include:

Development Control Plan/Locality Plan No LP 3 Palm Beach Ridgeline, (LP3)
9 LP3 applies by virtue of the saving provision contained in cl A1.5 of Pittwater 21 DCP. Under LP3 a 8.5m height limit applies, however, on sites with slopes greater than 20% within the building platform, a height of 10m may be considered by the council or the Court on appeal. The proposal being around 14.7m to the ridge would exceed this height limit even at 10m.

Pittwater 21, (DCP)
10 Under cl D13.2 of the DCP, development “…shall minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve.”

The proposal and its history
11 Development application No N0007/04 was lodged with the respondent council on 12 January 2004 to erect a carport roof with columns (existing) on an existing elevated car parking structure on the land.
12 The proposal is described in plans contained in Exhibit 1, Tab 3 pp 54-5, of the Agenda of the Development Unit Meeting of 4 November 2004, and shows the proposed carport roof erected on the eastern side of the elevated car parking structure and straddling the common boundary. Although the plan dimensions are not given it appears that the roof would measure around 11m x 6m with the long sides in the north south direction. The roof would rise from a height of 2.1m at the ends to a height of 2.45m at the middle. The maximum ridge height is shown as 59.35m AHD (assumed).
13 Mr Legg for the applicant explained that the need for the roof was to protect any cars parked on the elevated car parking structure from the elements, in particular hail.

Notification
14 The application was notified to four nearby owners and occupants and the council received one objection from the Palm Beach Association. The association referred to the previous rejection of the carport “…for this location due to height restrictions, and that the roof would add bulk and scale to the building on the lot.” [Note: Exhibit 1, Tab 5]. The Palm Beach Association had also objected to a previous proposal that had been considered by the Court in 1994.

The council’s decision
15 The council adopted the recommendation of the Development Unit and refused the development application on 25 February 2005.

The hearing
16 The appeal was filed on 3 September 2004.
17 Mr S Barwick, consultant town planner was the Court-appointed expert.
18 Ms A Williams prepared the statement of basic facts.

The issues
19 On 27 October 2004, the council filed a statement of issues:

(1) Height and Bulk - The proposed development will extend to 14.7m in height above the natural ground level.
The controls provide for an 8.5 metre maximum height limit.
(DCP No LP 3-Palm Beach Ridgeline Locality Plan ("LP3') Clause 3.1.6, Pittwater 21 Development Control Plan ("P21DCP")- Clause D 12.4 Height).
(2) Impact of the proposed development on the visual quality of the escarpment:
The proposed development does not meet the following objectives of LP3:
The proposed development is not in keeping with the desired future character of the Palm Beach Locality.
(P21DCP-Clause D12.1-character as viewed from a public place):
• To conserve and where possible enhance the desirable characteristics of the locality as identified in the Character Evaluation Report.
• To ensure that future development within the locality has minimal effect upon the natural topography and environmental attributes of the land.
• To ensure that the development shall harmonies with the natural setting and enhance the visual amenity of the area.
• To ensure that residential amenity of the locality shall be maintained, and the locality is a desirable place to live.
• To minimize the impact of development when viewed from public spaces. (LP3, Clause 1.5).
(3) Viewed of the proposal from the public domain:
The proposed development will not harmonise with the natural vegetation of the ridgeline (LP3 clause 2.3, summary. The proposed development will be a dominant site feature when viewed from the public domain including from Iluka Road, Barrenjoey Road and Snapperman Beach. Which is contrary to the outcomes sought for the Palm Beach Locality.

(4) Foreshore Scenic Protection Area- the proposed development is inappropriate development with the Foreshore Scenic Protection Area and does not meet the outcomes contained in clauses D12.2 of P21 DCP.
The control requires that development shall minimize any visual impacts on the natural environment when viewed from any waterway, road or public reserve.
(P21DCP-Clause D12.2 Scenic Protection).
20 The visual impact of the height and bulk of the proposal was the salient issue.

The evidence and findings

Judgment of the Court in 1994
21 The proposal considered by the Court in 1994 [O’Luen Australia Pty Limited v Pittwater Council 20140 of 1994, Nott A] was different to that presently under consideration, in that it was for a combination carport and garage on the southern side of the elevated car parking structure and in a different context. In that case, the carport section covering two car parking spaces, was to be on the southwestern corner of the existing slab and the enclosed garage section with two car spaces would have been on the southeastern corner. The northern end of the slab was to be used as a turning area. Comparing the existing situation with that shown in the photographs in Dr Lamb’s report, [Note: Exhibit 2] it appears likely that the backdrop of trees has been maintained over time and the foliage might have become a little denser.
22 In that case, Nott A commented that although it would be a relatively small structure it would be still quite prominent from viewpoints close and afar. He considered the roof would tend to accentuate the dominance of the existing elevated structure, “…which is already jutting out.”
23 Nott A considered the prominence of the proposal resulted in part from “…the jutting out nature of the slab supported by columns which are about ten metres high. From many vantage points, particularly from the west and southwest, there is no shielding of the underside of the car parking slab or of the supporting columns.” [Note: Page 4 of the judgment]. Since that time the house on No 132C Pacific Road has been erected and that building tends to draw the attention of the viewer away from the elevated car parking structure and the position of the proposed roof.
24 Although the present proposal would add slightly to bulk of structures on the hillside those structures should be considered in the light of all the presently existing structures nearby and against a backdrop of trees. When the 1994 proposal was considered the context was different and the carport roof and garage were in a different location.
25 I distinguish that case from the present, as since that time No 132C Pacific Road has been erected and partly shields from view, from viewpoints to the west, and southwest, the columns of the structure in Barrenjoey and Iluka Roads. Previously there was no screening of the columns of the elevated structure and the eye was naturally drawn to the elevated car parking structure. With the house erected on No 132C Pacific Road the elevated car parking structure is not so visually dominant. The proposed roof from many viewpoints would be set against a backdrop of trees and if coloured as proposed, I am satisfied that it would be visually recessive in the landscape.
26 I am satisfied from viewpoints to the west and southwest, the proportion of the visual field taken up by the presently proposed roof, would be very small. The applicant is prepared to colour the roof in a recessive colour-tone, further visually diminishing its impact. On the site inspection, the green coloured columns that have already been erected, were seen to visually recede into the landscape. One could expect the roof to do the same, as the underside of the slightly curved roof would be coloured to tone in with the backdrop of trees. The underside of the roof would also be in shade further reducing its visual impact. From most relevant viewpoints, the difference would be that in lieu of a dappled texture of leaves there would be a monotone of the dark green underside of the roof. But this would be over a very small proportion of the visual field. Also from most vantage points at low elevation the roofs of cars that are permitted to park on the existing structure, would partially obscure the roof from view. I am satisfied that the proposal would not dominate the landscape in its present context.
27 During the hearing, the applicant also agreed to paint the balustrade, the leading edge beam and columns of the existing elevated structure in deep ‘Brunswick’ green colour (the colour of the columns) prior to the commencement of the works. This would soften the visual impact of the existing structure and render it less intrusive than at present. The visual impact of the proposed new roof together with the existing structure thus, might be less than at present with the elevated car parking structure alone.
28 Nott A concluded that a roof on the eastern side of the slab would be preferable to one on the west as “…it would less readily viewed”. I am satisfied that appropriately coloured in the present context, the proposal would have little visual impact and although slightly more prominent than a roof on the east, as suggested by the former Assessor, should not be refused consent by reason of that impact. The single roof running parallel with the hillside is appropriate.

Visual impact of the height and bulk of the proposal
29 Mr Barwick was of the opinion that the proposal would:

“…detrimentally add to the visual prominence of the existing development and erode the landscaped character of the vegetated escarpment that dominates and is the dominant natural feature viewed from Barrenjoey Road.

30 When viewed from Barrenjoey and Iluka Roads, I concluded, as did Mr Barwick, the Court-appointed expert, that the proposal’s greater impact would be from points along Iluka Road. From Barrenjoey Road parts of the southwestern corner of the proposed carport roof would be seen against the sky. However, from that viewpoint the proposal would be well outside the normal cone of vision of a person standing in the street. In order to see the carport roof, high above the road, it would be necessary to crane one’s neck.
31 As proposed, from more distant viewpoints in Iluka Road and the beach, I am satisfied; the proposal would be seen against a backdrop of trees and of minimal visual impact and should not be refused consent. Despite Mr Barwick’s conclusion, I consider the proposal to comply with the intent of the DCP “…to minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve.” [Note: DCP-Clause D12.2 - Scenic Protection]. I am also satisfied that it would not contravene the intent of cl D12.1 – and so impact on the character as viewed from a public place, as to require refusal of the application. [Note: DCP - Clause D12.1-character as viewed from a public place]. The proposed roof would not take away a significant part of the landscaped backdrop, does not rise above the ridge of trees from most relevant viewpoints and would thus would minimise any visual impact on the natural environment.
32 Despite the earlier refusal of a carport/garage structure on the same elevated car parking structure, for the above reasons, the appeal is upheld.

Conditions
33 The conditions are those in Exhibit 4 as amended during the hearing. I have also deleted Condition 40, which referred to an appeal to the Court. This condition is unnecessary.


Orders
34 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No N0007/04 lodged with the respondent council on 12 January 2004 to erect a carport on an existing elevated car parking platform at Lots 67 and 68 in DP 1046153 being Nos 132B and 132C Pacific Road, Palm Beach is approved subject to the Conditions 1 to 39 in Annexure A.
3. The Court notes the agreement of the parties that the applicant will paint the balustrade, the leading edge, beam and columns of the existing elevated structure in deep ‘Brunswick’ green colour prior to the commencement of the works.
4. The exhibits are retained.
S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

O’Luen Australia Pty Limited v Pittwater Council

Consent No: N0007/04

This Consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate.

A. PRESCRIBED CONDITIONS

1. (A1.) All works are to be carried out in accordance with the requirements of the Building Code of Australia.

2. (A2.) In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force.

3. (A4.) To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections required by the principal certifying authority, the principal contractor for the building site, or the owner- builder must notify the principal certifying authority at least 48 hours before building work is commenced at the site if a critical stage inspection is required before the commencement of the work, in accordance with clause 162 of the Environmental Planning and Assessment Regulation 2000 .

4. (A5.) Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning and Assessment Regulation 2000 .

5. (A6.) A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:


a. showing the name, address and telephone number of the principal certifying authority for the work, and

b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

c. stating that unauthorised entry to the work site is prohibited.


6. (A7.) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

7. (A8.) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

a. in the case of work for which a principal contractor is required to be appointed:


i. the name and licence number of the principal contractor, and

ii. the name of the insurer by which the work is insured under Part 6 of that Act.

b. in the case of work to be done by an owner-builder:


i. the name of the owner-builder, and

ii. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.


8. (A9.) If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information .

9. (A10.) Conditions A8 and A9 do not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.

B. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

NOTE: The issue of partial or limited Construction Certificates is not permissible under the terms of this consent unless otherwise specifically stated. All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications/details cannot be accepted.

10. (B10.) Three sets of detailed working drawings that comply in all respects with the Building Code of Australia and the conditions of the Development Consent are to be submitted prior to the release of the Construction Certificate.

11. (B60.) Three sets of Structural Engineering details relating to the carport are to be submitted prior to release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Structural Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

12. (B67.) Detailed drawings shall be prepared demonstrating compliance with approved plans Statement of Environmental Effects, dated 10/03/03, prepared by Denis Fish, as amended in red (shown clouded) or as modified by any conditions of this consent.

C. MATTERS TO BE SATISFIED PRIOR TO COMMENCEMENT OF WORK

NOTE: It is an offence to commence works prior to issue of a Construction Certificate.

13. (C6.) A certificate prepared by an appropriate qualified person is to be submitted for the following building components, certifying to the principal certifying authority that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until the principal certifying authority has confirmed that this condition has been satisfied (see copy of form attached).

14. (C6a.) Building setout BS-1

D. CONDITIONS TO MINIMISE THE IMPACT OF THE DEVELOPMENT ON THE NATURAL AND BUILT ENVIRONMENT

15. (D20.) Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site.

16. (D21.) Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction.

17. (D32.) No fill is to be introduced within the drip line of canopy trees on the site.

18. (D33.) No fill is to be introduced in the area of native vegetation or habitat remaining on the site.

19. (D41.) Materials and colour schemes are to be in accordance with the samples submitted to Council with the application. No white or light coloured roofs are permitted.

20. (D42.) The underside of the roof is to be coloured dark green.

21. (D60.) The footpath and adjacent roadway is to be kept free of obstruction by building materials and/or plant. All concrete trucks, pumps and associated plant are to be kept wholly within the site. No concrete or slurry is to be discharged into the street or the street drainage system.

22. (D61.) If approved works are likely to cause pedestrian or vehicular traffic in a public place to be obstructed or if works involve the enclosure of a public place, then a hoarding or fence must be erected between the work site and the public place.

If necessary, an awning or other structure is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. Further, the work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
Any such hoarding, fence or awning is to be removed when the work has been completed.
NOTE: Hoardings and temporary awnings erected on or over public places are required to be subject to a separate approval from Council.


23. (D74.) A sign is to be erected in a prominent position on the site stating that unauthorised entry to the work site is prohibited and showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. No sign is required where works are internal only or where the premises are occupied continuously during and outside working hours.

24. (D75.) Toilet facilities are to be provided at or in the vicinity of the work site during the duration of the development.

25. (D76.) A stamped copy of the approved plans is to be kept on the site at all times, during construction.

26. (D80.) This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve.

27. (D85.) All external glazing is to have a maximum reflectivity index of 25%.

28. (D89.) The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary.

29. (D220.) A clearly legible "Site Management Sign" is to be erected and maintained throughout the course of works on the site. The sign is to be centrally located on the main street frontage of the site and is to state in clearly legible lettering the following: -

? Builder's name, builder's telephone contact number during work hours.

? A site fence and/or silt and sediment control fence is to be erected and maintained during the course of works along any street frontage boundary to the site.

? No other works are to be carried out in Councils Road Reserve without its approval.

? No skip bins or materials are to be stored on Council's Road Reserve.


30. (D221.) The development shall be carried out in accordance with plans Statement of Environmental Effects, dated 10/03/03, prepared by Denis Fish, as amended in red (shown clouded) or as modified by any conditions of this consent.

E. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

NOTE: The issue of interim or partial Occupation Certificates is not permissible within the terms of this consent unless otherwise specifically stated. Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council’s assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council’s written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council’s written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works.
NOTE: It is an offence to occupy the building or part thereof to which this consent relates prior to issue of an Occupation Certificate.


31. (E10.) A certificate prepared by an appropriate qualified person is to be submitted for the following building components, certifying to the principal certifying authority that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until the principal certifying authority has confirmed that this condition has been satisfied (see copy of form attached).

32. (E10c.) External Finishes EF-1

33. (E10d.) Roof ridge levels RL-1

34. (E86.) The works subject to this consent is not to be occupied or used until an Occupation Certificate has been issued, confirming that the project complies with the relevant standards and the conditions of development consent. The request for an Occupation Certificate is to be accompanied by a copy of all of the Compliance Certificates required by the conditions of development consent (see copy of form attached).

F. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE

Nil

G. ADVICE

35. (G23.) Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation.

36. (G25.) It is the Project Manager's responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with Council. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent Council from issuing the Occupation Certificate or the Building Certificate.

37. (G26.) Any consent given shall be void if the proposed development is not commenced within five (5) years after the date of approval.

38. (G27.) To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended).

39. (G28.) Should any of the determination not be acceptable, you are entitled to request reconsideration under Section 82A of the Environmental Planning and Assessment Act, 1979 . Such request to Council must be made in writing together with a $500 fee, within 1 year from the date of determination.

S J Watts
Commissioner of the Court