Porcaro v Lane Cove Council
[2011] NSWLEC 1072
•15 February 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Porcaro v Lane Cove Council [2011] NSWLEC 1072 Hearing dates: 15 February 2011 Decision date: 15 February 2011 Before: Pearson C Decision: 1. The appeal is upheld.
2. Development application D50/10 for the erection of a 1.8m diameter aluminium satellite dish antenna at 41 Arabella Street, Longueville, is approved subject to conditions in Annexure A.
3.The exhibits are returned, except for exhibits A, 1 and 9.
Catchwords: Development application - satellite dish - visual impact - impact on views and streetscape - precedent Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Lane Cove Local Environmental Plan 2009
Lane Cove Development Control Plan 2010Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177
Tenacity Consulting v Warringah [2004] NSWLEC 140Category: Principal judgment Parties: Silvano Porcaro (Applicant)
Lane Cove Council (Respondent)Representation: A Hudson, Wilshire Webb Staunton Beattie (Applicant)
A Seton, Marsdens (Respondent)
File Number(s): 10911 of 2010
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) from the refusal by Lane Cove Council (the Council) of consent for the erection of a 1.8m diameter aluminium mesh satellite dish antenna on a dwelling house at 41 Arabella Street, Longueville (the site).
The dish is proposed to sit on top of a steel pole attached to the wall of the dwelling house, with the top of the satellite dish being 295mm above the front of a parapet wall and 930mm below the roof ridge. The satellite dish is proposed to be set back 1015 mm from the southwestern boundary.
The subject site is located on the southwestern corner of Arabella Street and Christina Street. The site rises from the Arabella Street frontage to the rear boundary. There is a part two storey and part single storey dwelling house on the site with a swimming pool and carport.
Adjoining developments in the locality are predominantly two storey brick and tiled dwelling houses. On the other side of the intersection of Christina Street there is St Aidans church. The land across the other side of Arabella Street slopes down towards Woodford Bay. The houses along Arabella Street and in the locality have views across Woodford Bay to the CBD, the Harbour Bridge and the Opera House.
The background to the application is set out in the Statement of Facts and Contentions filed on behalf of the Council. The development application was lodged on 29 March 2010 and initially proposed a 2.3m diameter satellite dish. The application was notified by the Council and there were five submissions received relating to loss of view, health issues, the size of the dish, and whether it could be relocated.
The applicant in consultation with Council officers revised the application and submitted a proposal for a 1.8m diameter satellite dish on 31 May 2010. That revised proposal was notified and one submission was received. The Council refused the application on 12 July 2010, and the applicant sought a review under s 82A of the Act. The Council notified that review and further submissions were received. Those submissions raised objections concerning obstruction of views, the adequacy of alternate television access, the size of the dish, possible health impacts, negative impact on amenity, whether alternative locations were available, and the absence of other satellite dishes in Longueville. The Council affirmed its decision to refuse consent on 1 November 2010.
The issues between the parties concern visual impact and impact on views and the streetscape of the proposed satellite dish, and precedent.
Evidence
The hearing was conducted as an onsite hearing and included a view of the immediate locality. The owner of 44 Kenneth Street gave oral evidence and permitted access to his property, to observe the view from his upstairs bedroom window. The written objections made in response to the various notifications by the Council were included in the bundle of documents tendered by the Council.
The applicant gave oral evidence stating that he has three reasons for seeking approval for the erection of the satellite dish. He wishes to have access to European and Middle Eastern freetoair television channels from the Asiasat 5 satellite to maintain the cultural heritage of himself, his wife and their family; to enable the family to obtain information relevant to their active participation in elections in countries in which they are entitled to vote; and for other family reasons. The applicant stated that he has taken steps to respond to the concerns raised by Council concerning the size and location of the satellite dish. He has obtained advice from proposed installer of the satellite dish, and provided to the Council a letter from the director of OPAC Pty Ltd, owner of the brand of satellite dish proposed to be erected (Media Star). The applicant outlined his attempts to explore through the installer any possible alternative locations for the satellite and his discussions relating to the size of the proposed satellite dish. He has concluded on their advice that a dish of 1.8m in diameter can obtain access to the satellite that he wishes, provided he improves the supportive components and shortens the line of cable connecting the satellite dish.
Expert planning evidence was given on behalf of the Council by Mr Gerrard Turrisi.
Consideration
Contentions
The Council contends that the application should be refused on three grounds. First, that the proposed satellite dish will have an unacceptable impact on the amenity of adjoining and nearby properties in terms of impacts on views and visual impacts; in particular, the impact on views from 44 Kenneth Street and 4 Ann Street Longueville, the size of the proposed satellite dish and its visibility from neighbouring properties to the northwest and west.
Secondly, the Council contends that the proposed satellite dish will have an unacceptable visual impact on the streetscape; in particular that it would be visible from Arabella Street and Christina Street, and that its size is excessive.
Thirdly, the Council contends that approval of the application would set an undesirable precedent for similar inappropriate development in the area and in that regard is not in the public interest; in particular, there are no large satellite dishes in the Longueville area.
Planning Controls
The subject site is zoned R2 (Low Density Residential) under the Lane Cove Local Environmental Plan 2009 (the LEP). The zone objectives include the objective of "retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area". Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in the zone.
The Lane Cove Development Control Plan 2010 (the DCP) applies to the site. Part B provides general controls, and in particular, the general objectives of the DCP include at 1.1(f) "Balance individual and community interests to preserve and, where appropriate, improve the existing character and amenity of the municipality". Part B.4 deals with view sharing, and includes the objectives:
(a) To ensure that public view corridors between buildings or along streets are retained and enhanced from streets or public spaces.
...
(c)To preserve or fairly share water views for foreshore residents.
The relevant provisions are:
(a) Where existing views from public spaces are through gaps between side setbacks of buildings, the length of the building and roof of any proposal should be oriented towards the view in order to minimise view obstruction.
...
(e) To facilitate view sharing for residential developments, flat roofs or low mono-pitched roofs can be used where the design of the building and roof is integrated architecturally and where its appearance would be appropriate given the character of the street.
There are specific controls for residential development in Part C of the DCP. The objectives include at part C1.1, (2) ensuring that new dwellings and alterations and additions to existing dwellings are well designed and compatible with surrounding context and enhance the streetscape and area, and (3) achieve a reasonable level of amenity for both development sites and neighbouring dwellings. Part 1.6 includes objectives for building design which include ensuring that elevations to the street in the public domain are well proportioned and designed. Part 1.9 contains provisions dealing with ancillary development, which is defined as "out buildings and structures ancillary to and generally detached from the main dwelling". While not specifically referring to development of the kind proposed in this application, part 1.9 provides that:
Ancillary developments should be small scale and visually compatible with the design of the dwelling in form, colours and materials and that ancillary development should be considered as part of preliminary design to minimise visual impact from public areas.
There are no specific local controls for structures such as satellite dishes. Subdivision 12 Communications dishes (radio and satellite) of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Exempt and Complying Development Codes), permits radio or satellite communications dishes that meet the development standards in cl 2.24, which include a roof mounted satellite dish if it has diameter no more than 900mm and is not higher than 1.8m above the highest point of the roof of the dwelling.
Evidence
Turning now to the specific contentions raised by the Council. Considering first the impact on views and visual impact, the evidence of the owner of 44 Kenneth Street was that the satellite dish is an obstruction in addition to that represented by the parapets on 41 Arabella Street. He is not aware of any other satellite dishes in Longueville, and considers that with access to cable TV and internet access, there is no need for a satellite dish. His evidence was that the satellite dish is visible only from the window of the upstairs bedroom of his home, which is a place where he and his guests also watch fireworks.
The owner of 4 Ann Street provided written objections in response to the Council's notification, and in an email to the Council on 14 February 2011 (exhibit 8) restated her objections based on visual impact and precedent.
In his Statement of Evidence, Mr Turrisi stated that 43 Arabella Street has an extensive first floor terrace adjoining 41 Arabella Street which is located on the northeastern boundary and has been integrated into the dwelling for the purposes of passive recreation with an orientation to the north. In Mr Turrisi's opinion, the size of the proposed dish and its location would be visually intrusive to that property. The dish will be confronting from the location and will be visible from the sliding doors to give access to the terrace and this interface is visually inappropriate. In his oral evidence, Mr Turrisi agreed that the wall of the terrace on 43 Arabella Street, being some 2m high adjoining the boundary, would block views of the satellite dish when standing near the wall. However, in his opinion the dish would still be visible when closer to the house or inside.
Mr Turrisi's evidence on the visual impact on properties to the northwest, being 4 Christina Street and 44 Kenneth Street, was that those properties enjoy a view corridor between the subject site and 43 Arabella Street. In Mr Turrisi's opinion, the proposed dish has a mass and form where it will be visually identifiable and as such it is an element that unnecessarily impedes the view corridor. In Mr Turrisi's opinion, the size and form of the dish is an uncharacteristic element and it is clearly visible in its entirety.
In relation to impact on streetscape, it was common ground (and confirmed on the view) that the satellite dish is visible from that part of Arabella Street approximately running between 62 to 78 on the other side of Arabella Street, and from Christina Street approximately from the driveway of 4 Christina Street to the boundary of 41 Kenneth Street. Mr Turrisi was of the opinion that there is a view corridor through the separation of the buildings across to the CBD from Christina Street and he considers that the satellite dish stands out in that location.
In relation to the Council's third contention, concerning precedent and the public interest, the evidence of the Council is that it has no record of any approval having been granted to larger satellite dishes apparent at 46 Northwood Road or at another location at 145 River Road. The applicant pointed to and provided a photograph of a satellite dish on a property on the corner of Fox and Pengilly Streets Lane Cove. According to Council records, that dish has been there some twenty years and Council decided some time ago to take no action in relation to it.
Findings
In considering the evidence as to the impacts contended by the Council, it is significant to note that the applicant has had erected, it would appear around October 2010, a satellite dish of the dimensions and orientation of that proposed. The applicant's evidence is that that satellite dish was erected by the installer that he has engaged to erect the permanent structure, and is an old satellite dish which is not actually connected or functioning. The presence of that dish in that location has enabled the impact on the views and streetscape to be assessed on the view and to inform the evidence of Mr Turrisi and the objectors.
Considering first the question of impact on views and visual impact, the planning principle in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 is a guide to the assessment of impact on views. The decision of the former Senior Commissioner requires consideration of first, the views to be affected; secondly, to consider from what part of the property the views are obtained; thirdly, to assess the extent of the impact; and fourthly, to assess the reasonableness of the proposal that is causing the impact.
In relation to the contention concerning impact on views and visual impact, based on the site view, I accept that a satellite dish in the location proposed in the application is clearly visible from the upstairs window of 44 Kenneth Street. However, it does not obstruct views of the waters of Woodford Bay, the land water interface, or the iconic views of the Harbour Bridge and the Opera House. In relation to 4 Ann Street, the evidence before me is in the form of photographs that form part of exhibit B. The satellite dish is clearly visible on the roof from those photographs, however given the orientation of the views obtained from that property over Woodford Bay and towards the CBD, the impact on those views is minimal.
It was not possible to obtain a view from the terrace of 43 Arabella Street. However, I am satisfied that given the orientation of the view across Woodford Bay, the location of the wall on the boundary, and its height, that the visibility of the satellite dish from that deck would not be of such significance as to warrant refusal of this application.
From the position of 4 Christina Street, based on the observations on the site view, which did not include a view from that property, it would appear that the satellite dish does not extend further into the view corridor than the line of the eaves of 41 Arabella Street. From the limited view that was obtained on site, I am satisfied that while it would be visible, it would not because of its construction of mesh and its location obscure the view to an unreasonable extent.
In terms of the impact on the streetscape, I accept the evidence as to the visibility of the proposed satellite dish from Arabella Street and Christina Street. I accept that there is a view corridor across the properties lower down the hill towards the CBD. However, the proposed satellite dish is not unique in the general locality, there being observable on the site view two other satellite dishes on Arabella Street. Those satellite dishes were on the estimate of those present at the time of the site view, smaller than the proposed 1.8m diameter satellite dish, and were estimated to be smaller than the 900mm diameter permissible under the Exempt and Complying Development Codes. I am not persuaded that a satellite dish per se is such an intrusive element in the streetscape as to warrant refusal. The evidence from the site view confirmed that there is some screening from various angles from trees and other structures. I agree that the satellite is an additional element, however I would not be satisfied that it is so out of character or obtrusive as to constitute an unwarranted impact on the streetscape.
In relation to the size and location of the proposed satellite dish, I accept the evidence of the applicant as to his endeavours to respond to the Council's concerns about the size of the dish. I accept his evidence that he has relied on what the installer proposed for the satellite dish, and has accepted the advice that he has received as to the physical limitations of other possible locations, namely the full or partial obstruction of signals from the satellite from surrounding properties, trees and electrical poles and wires. The applicant is proposing if approval is granted that the satellite dish be powder coated in an appropriate colour to match other features of the house to reduce its obtrusiveness.
In considering the Council's contention relating to precedent, the authorities make it clear, including the decision of Lloyd J in Goldin v Minister for Transport administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, that the issue of precedent is a legitimate factor to be taken into account. However, applications have to be considered on their own merits, and in Goldin Lloyd J referred to the judgment of Sugarman J in Emmott v Kuringgai Municipal Council (1954) 3 LGRA 177 where his Honour said (at 182):
...it would appear to be unduly onerous to refuse an application, unobjectionable on its individual merits, on the mere chance of probability that there may be later applications sufficient, if approved, to produce in their totality some undesirable condition.
I accept the evidence as to other larger satellite dishes in the locality. I am not persuaded that approval of this application on its merits would constitute a precedent that would be difficult for the Council to resist. It would appear to me on the application of the planning controls to which the Council's representative has drawn my attention, that all of the potential impacts of any similar proposal would have to be taken into account in determining whether or not to grant development consent. The Council retains its ability to consider whether or not to grant consent for any proposed satellite dish that does not meet the development standards that are set out in the Exempt and Complying Development Codes.
In conclusion, having considered the proposal in light of the planning controls and the expert evidence of Mr Turrisi and the evidence of the neighbouring residents, I am not persuaded that the proposal before the Court poses visual impacts or impacts on the streetscape that are of such significance as to warrant refusal. The application can be approved subject to conditions.
Orders
The Orders of the Court are:
(1) The appeal is upheld.
(2) Development application D50/10 for the erection of a 1.8m diameter aluminium satellite dish antenna at 41 Arabella Street, Longueville, is approved subject to conditions in Annexure A.
(3) The exhibits are returned, except for exhibits A, 1 and 9.
Linda Pearson
Commissioner of the Court
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Annexure A
Decision last updated: 06 April 2011
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