Okeby v Bega Valley Shire Council

[2006] NSWLEC 540

Land and Environment Court

of New South Wales

CITATION:

Okeby v Bega Valley Shire Council [2006] NSWLEC 540

PARTIES:

APPLICANT
Rosemary Hellena Okeby

RESPONDENT
Bega Valley Shire Council

FILE NUMBER(S):

10553 of 2006

CORAM:

Tuor C

KEY ISSUES:

Development Consent :- s 96 application to amend condition of consent for dual occupancy development
impact in views, view sharing

LEGISLATION CITED:

Environmental Planning and Assessment Act
Bega Valley Local Environmental Plan 2002

CASES CITED:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING:

21/08/2006

EX TEMPORE JUDGMENT DATE:

08/21/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms R Okeby, self represented

RESPONDENT
Mr M McMahon, solicitor
SOLICITORS
M E McMahon & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

21 August 2006

10553 of 2006 Rosemary Hellena Okeby v
Bega Valley Shire Council
JUDGMENT

1 This is an appeal against the refusal by Bega Shire Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 to amend Condition 2 of development consent 2005.0464 for a dual occupancy development at 107 Madeline Close, Tura Beach (the site).

2 Condition 2 states:

2. The proposed building being relocated on the 7.5 m building line to Madeline Court so as to help preserve a view corridor to the adjoining land to the west being Lot 106 DP 879266.

3 A description of the site, its context the history of the application and the planning controls are in the Statement of Basic Facts.

4 Briefly the site is located in a new subdivision. It and the adjoining allotments Nos. 106 and 108 are vacant with no significant vegetation and constrained views to the ocean. Some other allotments in the subdivision in the vicinity of the site remain undeveloped. Surrounding development is predominantly two storey detached dwellings.

5 The site is zoned 2(a) (Residential Low Density) under Bega Valley Local Environmental Plan 2002 (LEP 2002). Dual occupancy development is permissible within the zone.

6 The objectives of the zone relevantly include:

(d) to ensure that development does not have an unacceptable impact on adjoining land, by way of shadowing, invasion of privacy, noise and the like.

7 The proposal complies with the height control in Development Control Plan No. 1 (DCP 1) and Development Control Plan No. 23 (DCP 23).

8 DCP 1 requires a minimum front setback of 7.5 m. It also states that:

an additional setback may be required where council is aware of relevant matters such as possible road widening or frontage to main road.

……

existing setback distances must be maintained where view lines would be affected.

9 In relation to rear setbacks DCP No. 1 states:

In general, council considers rear yard areas to be a “no building zone” except for ancillary development. Accordingly rear setbacks should be in context with neighbouring development.

10 Clause 2(a)(vi) of DCP 1 states that:

view corridors should be respected where practical.

11 The applicants object to the imposition of the condition on the basis that it will provide little benefit to Lot 106, but will impact on the potential views from their property. They are concerned that views may be affected by future development on Lot 108 and undeveloped property on the opposite side of Bournda Circuit. They also consider that the view corridor across their property is to the side of 106 and therefore it is not reasonable to preserve it.

12 Council’s case is that the proposed set back of 10 m does not comply with the DCP 1 control of 7.5 m. It removes any opportunity for views of the ocean to be obtained by Lot 106. Whereas a development that complied with the control would maintain a view corridor for 106 as well as provide views for 107, thereby achieving appropriate view sharing.

13 I accept council’s position.

14 The proposed development is orientated towards the northern side boundary of the site and setback from its front boundary to maximise views. While this is understandable it would preclude the adjoining allotment from obtaining views.

15 The proposed development is within 3.2 m of its rear boundary and is effectively built within its rear yard area. Although the way the dual occupancy is designed and orientated the rear yard area is unlikely to be used for this purpose. Nonetheless this places the building in close proximity within the adjoining building in Bournda Circuit and effectively removes any view corridor that may be available to Lot 106 if more of the rear yard were maintained.

16 While the views to the ocean from Lot 106 are from the side they can also be considered as being from the rear of that property. They are obviously something that future development of the property would seek to optimise

17 I accept council’s position that, consistent with the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, it is unreasonable for the development of 107 to maximise its views at the expense of Lot 106.

18 There is no justification for the proposal to be setback greater than the minimum of 7.5 m as it impacts on the potential view corridor. Maintaining a setback of 7.5 m will enable both properties to maintain views and therefore achieve appropriate view sharing. The condition is therefore reasonable.

19 In relation to the applicant’s concerns about future developments. There are no proposals before the Court and from the information provided it is not possible to determine the likely impact on views from 107. However, any development of these sites would be assessed against the relevant controls, which require a consideration of view sharing.

Orders

20 For the above reasons the Orders of the Court are:

1. The appeal is dismissed.

2. The s 96 application to amend development consent (2005.0464) for a dual occupancy development at Lot 107 Madeline Court, Tura Beach, is refused.

3. The exhibits are returned.

___________________

Annelise Tuor
Commissioner of the Court
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