Phillips v Byron Shire Council

[2006] NSWLEC 350

Land and Environment Court

of New South Wales

CITATION:	Phillips v Byron Shire Council [2006] NSWLEC 350
PARTIES:	Applicant: Edwin Phillips Respondent: Byron Shire Council
FILE NUMBER(S):	10423 of 2006
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- development on ridgetops; excessive excavation
DATES OF HEARING:	31/05/2006 and 01/06/2006
DATE OF JUDGMENT:	06/20/2006
LEGAL REPRESENTATIVES:	Applicant: Mr P McEwen, SC instructed by Mr A Van Kempen of Stephen Butterell Solicitors Respondent: Mr J Reilly, solicitor of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

20 June 2006

10423 of 2006 Edwin Phillips v Byron Shire Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Byron Shire Council (the council) of a development application to demolish the existing house and construct a three-storey dwelling house, swimming pool and gazebo on lots 8 and 9 DP246414, known as 148 and 148A Lighthouse Road, Byron Bay.

The site

2 The site has an area of 1,478m2, with primary frontage to Lighthouse Road, and with secondary frontages to Lee Lane and No Name Lane. There is a single-storey house now on the site. Its access is from Lee Lane.

3 The site is on the southwest end of the Cape Byron Spit. Lighthouse Road is the main road to the Cape Byron Lighthouse. Immediately north is the No Name Lane road reserve, beyond which is the Cape Byron Conservation Area. To the east is the Lee Lane road reserve, which also adjoins the Cape Byron State Conservation Area.

4 The site can be seen from Clarkes Beach and, more distantly, from Main Beach.

The proposal and its history

5 The applicant proposes to demolish the existing house and to erect a new three-storey house with an underground garage of 180m2, a swimming pool and a gazebo. The total area of the house is 764m2, though for floor space calculations only 716m2 needs to be included. This meets the council’s maximum Floor Space Ratio (FSR) of 0.5:1.

6 The applicant lodged the application in May 2004. Following notification the council received seven letters of objections. In June 2005 the council considered a report by its planning staff recommending approval. The council did not accept the recommendation and refused the application. The applicant lodged the appeal in May 2005, while it also requested the council to review its decision under s82A of the Environmental Planning and Assessment Act 1979. The council considered a report by its planning staff on the review in February 2006. The report did not make a recommendation, though its content suggested that the application should be approved. The council again refused the application.

Relevant planning controls

7 State Environmental Planning Policy 71 – Coastal Protection requires the scenic qualities of the coast to be taken into account when determining an application on land in the coastal zone. The site is in the coastal zone.

8 Local Environmental Plan 1988 (the LEP) zones the site Residential 2(a). Clause 14(7) restricts the Floor Space Ratio (FSR) of dwelling houses to 0.5:1. Clause 31 deals with Development on ridgetops.

The council shall not consent to the erection of a building or the carrying out of other development on or near any ridgeline on land to which this plan applies unless no alternative location for the building or other development is available, in which case the following objectives to lessen the impact are to be considered before consent is granted:
a. whether there will be adequate existing or proposed landscaping, trees or other vegetation which assist or are likely to assist in mitigating visual impact; and
b. whether the proposed building design elements, materials of construction and proposed colours will mitigate potential adverse visual impact, including the reflectivity of materials to be used.

9 Development Control Plan 2002 (DCP 2002) applies. Clause C2.7 deals with the Extent of earthworks. The objectives are:

· To minimise environmental impact.

· To blend new development into the landscape.

· To minimise the disturbance to the natural landform.

· To minimise the risk of soil erosion and sedimentation.

· Encourage landowners to design dwellings that are in keeping with the natural landform.

10 The Performance Criterion for earthworks is:

Site disturbance by cut and fill of earthworks is to be minimised.

11 The Prescriptive measure is:

Excavation of earthworks is to be limited to a depth of 1m. Filling is to be limited to a height of 1m.

12 DCP 2002 expands on the requirements of the LEP in relation development on or near ridgetops. In cl C3.3 the objective is

to protect and enhance the natural aesthetic qualities and character of ridgelines in Byron Shire.

13 The performance criterion is

Developments must not intrude into the skyline when viewed from public land (roads, beaches, reserves etc).

14 Otherwise cl C3.3 repeats clause 31 of the LEP.

The issues

15 The council submitted a Statement of Issues containing nine issues. However, at the commencement of the hearing the council’s advocate, Mr G Reilly, summarised the issues under just two headings:

· Whether the visual bulk of the proposal, when seen from the beaches and No Name Lane, is acceptable; and

· Whether the amount of excavation, far in excess of that permitted by DCP 2002, is justified.

The experts

16 At the request of the parties, the Court had appointed Mr S Layman as the joint planning expert, and Mr G Scholey, as the joint expert on soil stability. Mr Scholey reported that there is no reason to expect that the proposed excavation would lead to instability. The council accepted his advice.

17 Since Mr Layman was equivocal about the proposal, the applicant sought leave to introduce evidence from its own experts. The Court granted leave for Dr R Lamb, an expert on visual impact, to give evidence. The Court also granted leave for Mr M Scott, a planning consultant, to give evidence in relation to the FSR calculations; and for Mr T Cromack, a traffic engineer, to give evidence in relation to the number of truck movements required to take away the excavated material.

The objectors

18 The Court heard the evidence of the following objectors:

· Mr N Morrison of 156 Lighthouse Road,

· Mr A Cowley of 142 Lighthouse Road,

· Mr I Pratley of 160 Lighthouse Road,

· Mr T Mooney of 162 Lighthouse Road, and

· Ms S Brockhoff of 178 Lighthouse Road.

19 The objectors had similar concerns. The main concern was the large size of the proposal. Its appearance from Clarke Beach and from No Name Lane would be overpowering and change the character of the lane and the backdrop to the beach. One objector used the term “over the top” to describe the size of the proposal.

20 The second concern was the access from No Name Lane, in particular the size and depth of the garage, the excavation it would require and the disturbance that trucks hauling away the spoils would cause. The objectors could not understand why the proposal did not use the existing access from Lee Lane. If, however, the access was to be from No Name Lane, then the garage should be no bigger than a conventional double garage.

Visual impact

21 The various experts disagreed on whether the site is on a ridge. I note from the council’s files that the council planner dealing with the application did not think it was on a ridge. Mr Layman thought it was on a ridge. The fact is that from a short distance along Clarkes Beach the site can be seen against the sky, so to that extent it is on a ridge. From other vantage points the site is seen against hills behind, so from those places it is not on a ridge.

22 Clause 39 of LEP 1988 requires the Court to be satisfied, for sites on a ridge, that there is no alternative location for the building. It is clear that if the building were sited lower on its site, it would interfere with the view of its neighbour. I therefore accept that there is no alternative location. When there is no alternative location, the LEP also requires the Court to be satisfied about adequate landscaping and appropriate materials (see above). There was no suggestion that these two aspects of the proposal were unsatisfactory.

23 DCP 2002 includes the performance criterion for development on ridges:

Developments must not intrude into the skyline when viewed from public land (roads, beaches, reserves etc)
The proposal does intrude into the skyline when seen from parts of Clarkes Beach. To that extent it does not comply with the above performance criterion.

24 It was common ground among the experts that the site is prominent and the proposed house big. The existing house is clearly visible from both Clarkes and Main Beach. Mr Layman was more concerned about the view from Main Beach than from Clarkes Beach, because he thought that three storeys would be visible. Dr Lamb found the views from all vantage points acceptable, though he conceded that the house was large.

25 Mr Layman pointed out that the proposal fitted into the council’s height requirements. The amended proposal also met the council’s maximum FSR of 0.5:1. As a result, Mr Layman indicated that he saw no reason to refuse the application. He suggested, however, that the swimming pool be lowered further into the ground, because it would be read as a further storey, and that the garage be made smaller.

26 I have given Mr Layman’s suggestion consideration and, on balance, I am not inclined to require the swimming pool to be lowered. It would necessitate numerous steps and introduce a great deal of inconvenience to the applicant. This itself is not a deciding factor, however, the swimming pool is the part of the building that is most easily screened by vegetation and least likely to be seen from the beach. The reduction in the visual impact of the proposal would be minor.

Excavation

27 DCP 2002 restricts the depth of excavation and fill to 1m. When the subject application was lodged, the DCP restricted the depth to 2m. The proposed garage requires 4m of excavation. In his first report, Mr Layman criticised the extent of excavation, referring to the amount of spoil that would have to be removed from the site. The applicant argued that Mr Layman’s calculations were wrong and the amount of spoil would be less.

28 I do not think that the number of truck movements carrying spoil from the site (annoying though they may be for the neighbours) is the main issue. The main issue is that an unnecessarily large excavation is inconsistent with all five of the objectives of C2.7 of DCP 2002, ie

· it does not minimise environmental impact, it tends to maximise it;

· it does not assist new development to blend into the landscape;

· it does not minimise the disturbance to the natural landform, it tends to maximise it;

· it does not minimise the risk of soil erosion and sedimentation (though this could be controlled through appropriate engineering practices); and

· it discourages landowners from designing dwellings that are in keeping with the natural landform.

29 I do not see any reason why this application should be exempt from C2.7 of DCP 2002. I note that the applicant drew my attention to approvals by the council where the extent of excavation exceeded 1m. I accept that in some cases it may be necessary to apply the 1m maximum flexibly. However, in this case the extent, as well as the depth of the excavation is excessive and unnecessary.

30 I note that, after several reductions, the proposed garage has an area of nearly 180m2. A normal double garage fits into 40m2. Mr Layman produced a drawing showing a generous double garage with turning space and access to the ground floor that had an internal area of 95m2. In my opinion, this is the maximum extent to which it is reasonable to apply the requirements of DCP 2002 flexibly.

31 I note that the applicant has perfectly adequate access from Lee Lane. The environmentally most desirable solution would be to continue with this access and not excavate the garage at all. This would also answer many of the complaints of the objectors. However, I note Mr Cromack’s advice that there is no traffic reason to deny access from No Name Lane. If the applicant wishes to proceed with the No Name Lane access, then the area of the garage should be reduced to a maximum of 100m2.

32 In my opinion, the extent of excavation and its inconsistency with DCP 2002 is sufficient reason to refuse the application. The matter can however be resolved by a condition. I have no power to impose the condition without the applicant’s agreement. At a mention on 15 June 2006 the applicant indicated that it would accept a condition restricting the area of the excavated garage (including any plant rooms, laundries, store rooms and mechanical ventilation spaces and ducts) to a maximum area of 100m2.

Conclusion

33 The subject application is a large house, which will be prominent and seen, from some parts of Clarkes Beach, against the sky. An alternative location on the site does not seem practicable. The proposal complies with the council’s controls on FSR and height. I have accepted the Court-appointed expert, Mr Layman’s advice that, while the proposal will have a strong visual impact, since it complies with the planning controls, there is no reason to refuse it.

34 I am strengthened in this decision by the high quality of design and the materials used. I would prefer the building to be smaller, but at least it is nice-looking.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing house and construct a three-storey dwelling house, swimming pool and gazebo on lots 8 and 9 DP246414, known as 148 and 148A Lighthouse Road, Byron Bay is determined by the grant of consent subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 8, D and F.

__________________
Dr John Roseth
Senior Commissioner