Sachmacinski v Sutherland SC

[2006] NSWLEC 110

Land and Environment Court

of New South Wales

CITATION:	Sachmacinski v Sutherland SC [2006] NSWLEC 110
PARTIES:	APPLICANT Katrina Sachmacinski RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10708 of 2005
CORAM:	Bly C
KEY ISSUES:	Development Application :- three storey dwelling house - loss of views and privacy - building height and setbacks - demolishion and excavation.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2000
CASES CITED:	Tenacity Consulting v Warringah C [2004] NSWLEC 140
DATES OF HEARING:	9/02/2006
EX TEMPORE JUDGMENT DATE:	02/09/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P. Vergotis, solicitor of MatthewsFolbigg RESPONDENT Ms E. Ranken, solicitor of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

9 February 2006

10708 of 2005 Katrina Sachmacinski v Sutherland Shire Council

This decision was given extemporaneously on site. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal relates to development application No. 04/1313 which is for the demolition of an existing dwelling house and the construction of a new three-storey dwelling house and swimming pool at No. 19 Cumbee Lane, Caringbah being Lot 1 DP 227191.

2 The site is irregular in shape with a street frontage of 6.745 m. Side boundaries are 30 m and 41 m and the rear boundary is 24.5 m. It has an area of 584.5 sq m and falls from west to east about 2.5 m. Development in the locality generally comprises a mix of single and double storey detached dwelling houses of varying architectural styles and sizes.

3 The site is zoned 2(e2) Residential under the Sutherland Shire Local Environmental Plan 2000 (“the LEP”). It is also within a foreshoreshore scenic protection area. Under the LEP the proposal requires development consent. The LEP also contains relevant development standards relating to floor space ratio, landscaped area and building height and the proposal complies with all of these standards.

4 Also applicable is the Development Control Plan for Dwelling Houses in 2(e) Residential Zones (“the DCP”) and I understand that the proposal meets the relevantly applicable requirements.

5 The application in different forms was advertised on at least two occasions resulting in a number of objections being received from surrounding residents. Matters of concern raised in those objections include:

• Loss of views and privacy
• Excessive building height and sufficient setbacks
• Stormwater management problems
• Landscaped area and Fencing
• Unsatisfactory Carparking
  

6 The application was subsequently refused under delegation for reasons relating to excessive ceiling and building height, non-compliance with the two-storey height limit, view loss and impacts on privacy, non-compliance with the floor space ratio.

7 The application has since been the subject of extensive changes in response to the concerns of the residents and the council and as a result the council has now agreed that the amended design should be the subject of consent orders notwithstanding the remaining concerns of the residents. Further changes to the proposal as a result of discussions on site have also occurred in relation to fencing and site excavation, resulting in the need for some of the conditions to be amended and the inclusion of additional conditions.

8 The only issues that require the determination of the Court in this matter involve the concerns raised by the three residents who continue to object to the proposal.

9 The first of the residents to object is Mr G. Henry of No. 1 Irwine Road, Caringbah. His concerns involve disposal of stormwater and possible impacts on his house as a result of vibration from the proposed excavation of the site. I have considered the stormwater issue and the drawings, which formed part of the application and now understand that what is proposed meets the requirements of the council. I shall return to the matter of demolition vibration shortly noting that this was also a matter of concern for the other two objectors.

10 Ms B Cleary spoke on behalf of her parents of No. 96 Fernleigh Road, Caringbah explaining that apart from the vibration concern their major objection to the proposal involves loss of views especially as a result of the proposal to plant three canopy trees on the site.

11 Mrs Henry of No. 94 Fernleigh Road, Caringbah also expressed concerns in relation to possible damage from vibration associated with excavation works as well as loss of views, mainly resulting from the proposed canopy trees.

12 I have visited both of the affected houses including visiting the relevant balcony and rooms said to be affected in terms of view loss.

13 I subsequently invited the applicant’s consultant town planner Mr L. Fletcher and the council’s town planner Mr A. Filato to comment on the concerns involving view loss. Mr Fletcher referred to the four tests in Tenacity Consulting v Warringah C [2004] NSWLEC 140 (“Tenacity”), and having applied those tests concluded that the proposal is not unreasonable. More particularly he considered the nature of the available water views and the positions from which these views are available. He concluded that the impacts were within a middle range but taking into account that the proposal does, in terms of building height and landscape area conform to council’s controls, the end result is not unreasonable. He also explained that the provision of canopy trees on the site is an important response to council’s controls particularly this being in a foreshore protection area and as a matter of public interest.

14 Mr Filato essentially agreed with Mr Fletcher pointing out that the type of trees proposed are open limbed trees which as they grow would facilitate views between the branches and that the provision of such canopy trees was important. He also pointed out the building had been the subject of significant change as a result of council’s concerns but there would be no benefit of forcing further changes, the building’s height and bulk being reasonable.

15 Having considered the concerns of the residents and the opinions of the two town planners I have decided that the concerns in relation to loss of views are not such as to overturn the consent orders that have been presented to the Court. Mr Fletcher’s application of Tenacity is particularly relevant and appropriate. In this regard I agree that the loss of views that would result is within reason. I also agree that it is of relevant importance that the building complies with council’s controls, indeed the building will be 1 m lower than the maximum building height permissible.

16 It is also important to take into account that the provision of canopy trees is a relevant public interest consideration, that the site is situated in a foreshore building area.

17 As for the concern in relation to impacts that might result from demolition works I note that the conditions now require the preparation of a geo-technical report, which will assist in the determining of the most appropriate means of site excavation. In addition the applicant is now required to carry out dilapidation reports on relevant close by buildings before demolition and excavation begins. A second dilapidation report for each of the affected properties is also requiredprior to the issue of a occupation certificate. Taking into account these conditions as well as the fact that the extent of demolition on this site is not excessive, these matters indicate that impacts associated with demolition and excavation are not of determinative concern.

18 The Court will therefore make the consent orders as tendered, subject to changes to the conditions as discussed in relation to the demolition aspects. In this regard condition 27 is to be amended so as to require the preparation by a qualified geo-technical engineer of a geo-technical report following the demolition of the house such report to consider the geo-technical circumstances of the site and recommend the most appropriate means of excavation so as to avoid possible damage to neighbouring properties.

19 Finally I note that the proposal includes the installation of colourbond type fences. I disagree with the choice of materials and having considered the comments of the planners have decided that the fence adjoining No. 94 can remain but the existing lattice should be supplemented by a second layer of lattice to improve privacy. The other fences should be constructed in the form of lapped and capped timber.

___________________

T A Bly
Commissioner of the Court
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