Somanader v Greater Taree CC

[2005] NSWLEC 307

Land and Environment Court

of New South Wales

CITATION:

Somanader v Greater Taree CC [2005] NSWLEC 307

PARTIES:

APPLICANT
Adrian Somanader

RESPONDENT
Greater Taree City Council

FILE NUMBER(S):

11467 of 2004

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Refusal of three dwellings including subdivision into three lots - Streetscape - Bulk and Scale - Visual impacts - Solar Access - Character - Noise - Traffic - View loss.

LEGISLATION CITED:

Greater Taree Local Environmental Plan 1995
State Environmental Planning Policy No. 71
Greater Taree Development Control Plan No. 40
Greater Taree Development Control Plan No. 41
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

23/05/05

EX TEMPORE JUDGMENT DATE:

05/25/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Mallik, solicitor
of Cleaves Mallik Gibbes

RESPONDENT
Mr P. J. Donnellan, solicitor
of P J Donnellan & Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

25 May 2005

11467 of 2004 Adrian Somanader v Holroyd City Council

JUDGMENT

1 This is a class 1 appeal No. 11467 of 2004, between Adrian Somanader and Greater Taree City Council over refusal of three dwellings on No. 21 Emerald Drive Diamond Beach, including subdivision into three lots.

2 The proposal is in the form of one detached house and two semi-detached houses, all are two storey with living rooms on the upper floors to obtain some views to the ocean and along the coast.

3 The detached house fronts Emerald Drive with its two car garage off that street. The semis front an unnamed laneway on the north side of the block and each has a two-car garage, each with space for a trailer in the garage. If a boat on a trailer is present one of the car spaces would take about a 6 m long boat on a trailer.

4 The lane is constructed with 4.5 m wide tar sealed carriageway between rollover kerbs but only for the length of the subject lot from Emerald Drive. Uphill of that the laneway is gravel surface with no kerbs up to Sapphire Parade.

5 There are no trees on the site and it slopes in two directions, from south to north it falls about 2 m across the width of the lot from the boundary with No. 23 Emerald Drive to the laneway. Along the length of the lot it slopes from west to east about 2 m also, being from the rear boundary of No. 57 Sapphire Parade, owned by Ms Wilson, and the 2 m drop is down to the Emerald Parade frontage.

6 Council officer reports had recommended approval of the proposal. The reasons for the Council’s refusal of the development application were at 9 June 2004:

(1) The proposed buildings represent an over development of the site in terms of bulk and scale.
(2) The development will cause significant adverse visual impacts in the neighbourhood.
(3) The development will cause unacceptable impacts on the property to the south in terms of solar access.
(4) The development will cause unacceptable impacts from traffic generated by the development.

7 However, the parties had agreed that the Court should appoint Mr D Sneddon, Town planner, in the appeal. After reading Mr Sneddon’s report council resolved on 16 March 2005, to seek consent orders subject to certain conditions. Objectors pressed the refusal of the proposal for the following reasons in summary:

(a) Changes to the low density character of the area.
(b) No other three unit development in the area.
(c) Building height and non compliance with the floor space ratio.
(d) Results in overcrowding precedent for a ghetto.
(e) Causes loss of views and privacy.
(f) Frontage and access to the unnamed laneway.
(g) Noise from tenants.
(h) Solar access and overshadowing.
(i) Construction traffic, road safety.
(j) Decrease in property values.

8 The hearing was attended for the respondent by Mr Donellan, solicitor, with evidence given in Court by Ms H G Wilson, objector and resident of No. 57 Sapphire Parade and Mrs K Budden, objector and resident of No. 53 Sapphire Parade. Mr Byatt, the council officer, attended on-site and at the Court.

9 At the view taken by the Court of the site and the neighbouring properties and of the Diamond Beach subdivision, some other objectors spoke to their written objections. The written objections were, Ms M Crear JP of No. 49 Sapphire Parade, L French of No. 20 Escapade Avenue, D and B Johnson of No. 17 Escapade Avenue, P D Isbill of No. 21 Escapade Avenue, P A and M J Willard of No. 41 Kearns Avenue, Kearns, New South Wales, however they did not identify the lot they owned near the proposal, and lastly G and K Steber of No. 55 Sapphire Parade.

10 For the applicant was Mr R P Mallick, solicitor, with evidence from Mr A Somanader, applicant. Also attending was his consultant/townplanner, Mr M Joyce.

11 Mr Sneddon also gave oral evidence.

12 In regard to the laneway the council engineers had none of the concerns of the objectors. Mr Sneddon said the footpath reserve is 3 m wide to the boundary of the site. The laneway reservation is the normal road width of about 18 m. No reason was known for the narrow carriageway on the lane but it was put that only the proposed two semi detached houses would have access to it, so the need to service dwellings was minor. The objectors who lived there said it was a well-used laneway as a short cut from Sapphire Parade to local shops. The semis had a single driveway, Mr Sneddon said, so visitor parking in the lane could be achieved by cars parking half over the rollover kerb alongside the site or in Emerald Drive.

13 The objectors were concerned that garbage trucks, builders trucks and other large vehicles apparently use the laneway now, and visitor parking there would not be practical as it would obstruct passage of those vehicles. Mr Sneddon said, the rollover kerb facilitated parking half over it and half over the narrow carriageway and the narrowness of the carriageway would suggest to drivers that was the appropriate way to park. He did not think that large vehicle movement would suffer. In any case Mr Sneddon said the large apron in front of the garages would enable some onsite parking for visitors.

14 In regard to existing traffic driving down the laneway at speed, the point was made that once the driveway was there and possibly with vehicles parking in the laneway, this would automatically indicate to drivers that they could not speed and would have to adopt a more careful driving habit. Such was the case when the Court was on the view, with some cars parked in the laneway, that drivers did have to slow down.

15 In regard to the low density character, the objectors said it was their wish for the area to remain low density. Mr Sneddon said that was not the council’s wish. A zoning of Residential Zone No. 2(a) under the Greater Taree Local Environmental Plan 1995 permitted a range of densities of housing.

16 The objectors thought there was only one dual occupancy in the subdivision area. In fact council had approved more, and had recently approved an 11 unit development further along Emerald Drive.

17 Also, whilst a two storey limit was the normal, the maximum height permitted of 10 m for houses, enabled some to be two storey above garages. In the case of No. 23 Emerald Drive, beside the subject property, it was two storey with a third storey in the roof with a very large dormer window looking eastwards towards the ocean.

18 The proposal was 7 m to 8 m high variable due to the slope of the land, whilst the allowable maximum height was 10 m. No. 23 beside it appeared to be built to the maximum height.

19 The character the council wanted for the area Mr Sneddon said was:

(a) The preservation of the residential amenity.
(b) The regulation of the subdivision and use of land for housing with ancillary development permitted only where the scale, type and traffic generating characteristics of the ancillary development are compatible with the character and the amenity of the area.
(c) The encouragement of a range of residential development providing for flexibility and variety of housing types and designs, densities and associated land uses, with conservation of visual amenity, and
(d) the promotion of development considered by the council to be a desirable land use within the urban living area which is compatible with the residential environment.

20 Also Mr Sneddon said that statute allowed subdivision as proposed subject to conditions on title of the properties requiring a prohibition:

“The redevelopment of the lot with the building of greater floor space than originally approved is prohibited and alteration to external materials of the building is prohibited.”

21 The proposal complied with all statutory and Development Control Plan provisions Mr Sneddon said including, floor space ratio, lot sizes under the appropriate development control plan, setbacks from roads including the laneway where the 5 m setback was the same as the standard 5 m front setback to Emerald Drive. The side and rear setbacks were considerably greater than the minimum, and the proposal stepped back at the first floor level with small roofs at the ground floor ceiling level, so that the scale and bulk of the dwellings was visually less than the larger houses nearby that rose a full two stories at 900 mm set back from the side boundaries.

22 The landscape open space provided by the proposal was 48% of the site area, whereas the minimum council requirement was 35%. Private open space was required by council at a minimum of 35 sq m court yards per unit. The proposal had court yard areas of 62 sq m and 106 sq m and had service court yards at the rear in addition to the private open space areas.

23 Solar access was well provided for by having the living rooms facing north and east. Shadows on the neighbours were minimised by the proposal being downhill of all its immediate neighbours plus being excavated up to 1.5 m into the natural ground on the uphill side. Shadows even in mid winter fell only on small parts of the neighbours yards for short periods of the day.

24 Visual privacy of neighbours was protected by living room and balconies looking across both streets, not at neighbours yards or windows. Only bedroom windows faced the neighbours at the second storey level. Mr Sneddon said, this arrangement also meant noise from activities in the living areas or balconies of the proposal was directed away from the objectors. He said, the concern that was recurrent in many objections was loss of views, in particular No.’s 53, 55 and 57 Sapphire Parade.

25 Mr Sneddon said, whilst a range of matters arose in objections the principal recurring theme relates to a concern for the loss of ocean views which have been enjoyed by those residents who built their homes during the early stages of development of the Diamond Beach subdivision when large areas comprised open vacant land but which are now being in-filled as development occurs.

26 The existing dwelling houses located immediately up slope, No.’s 53 to 57 Sapphire Parade and to the rear of the subject land, illustrate how residents have designed their homes so that the principal living areas and patios are on the upper level and oriented towards the east to access ocean horizon views across vacant neighbouring residential land.

27 The subsequent development of multi level dwellings on neighbouring down slope properties fronting Emerald Drive will however result in the building out of available views being an inevitable consequence of the north south orientation of the street pattern and the generally low slopes of the locality. This is aptly demonstrated by the current construction of the three storey dwelling house approved by the council at No. 23 Emerald Drive which has the effect of blocking parts of the views previously enjoyed by No.’s 53 to 57 Sapphire Parade.

28 In relation to the residence of Ms Wilson at No. 57 Sapphire Parade the effect of view loss is potentially greater given that Ms Wilson’s residence is of single storey construction. It is noted however that the erection of a dwelling house dual occupancy or other building of two storey construction on the subject land would have similar impact to the proposed development on Ms Wilson’s residence in terms of view loss.

29 The loss of views enjoyed by some residents across previously vacant residential land is an inevitable consequence of the physical characteristics of the locality, the pattern and orientation of subdivision and the prevailing multi level character of dwelling houses now being constructed in the area. Any expectation by residents that they will have long term access to currently available views over vacant residentially zoned lots where proposed new development complies with the performance guidelines of Development Control Plans 40 and 41 is considered unreasonable.

30 At the site inspection the Court went to Ms Wilson’s house. From her living room that was on the opposite side of the house to the laneway she would retain a glimpse between No. 23 and the proposal to the ocean. The proposal by having a second storey set back 6.5 m from the side boundary would provide a substantial part of this ocean aspect compared to No. 23 that had a three storey wall set perhaps 2 m from the boundary. For Ms Wilson it was a much larger aspect towards the ocean than a single house set close to the boundary on the subject site would have provided. In that case there would have been only a small gap between No. 23 and any theoretical house on the subject property.

31 Also, having the living room on the south side of her house, Ms Wilson should reasonably have anticipated that any building typical of those new houses nearby, if built even single-storey on the subject property, must obstruct her living room view.

32 From her large veranda and kitchen that were on the north side adjacent to the laneway, she would retain much more of the current view to the north and the north-east along the coast, although the existing view directly east would be blocked, as it would be by any house typical of those new houses seen in the subdivision if built on the subject lot.

33 Ms Wilson, was concerned that a council drainage easement in her property along the common boundary with the subject lot would prevent her growing trees or large shrubs to screen the proposal. She thought she could only grow grass and vegetables in the easement. Mr Byatt made inquiries and the Court was informed there were no restrictions on vegetation in the easement.

34 Mrs Steber at No. 55 Sapphire Parade had a two-storey house with the living area and a large east-facing balcony on the upper floor. She was concerned about loss of view. No. 23 directly east of her property had taken most of that view. To the north and north-east there was a view along the coast to Old Bar and Harrington and Crowdy Head. It would be reduced, and perhaps lost, due to the proposal. Without the benefit of height poles on the site to show the roof ridge of the proposal, it was difficult to assess. Estimating down from No. 23 Emerald Drive, it was possible the distant view to Old Bar and Crowdy Head might be retained.

35 Mrs Budden was in No. 53 Sapphire Parade and had a similar layout in her house to Mrs Steber but the Buddens were a little higher on the hill and had a better chance of perhaps retaining some of the views to the north and north-east. No. 23, a very large house, had also blocked most of her view to the east.

36 In the spirit of good neighbourliness, the applicant offered to lower the pitch of the roofs of the proposal from 22.5 degrees to 15 degrees. This would lower the height of the buildings by 809 mm in the case of Units 2 and 3 and by 700 mm in the case of Unit 1. As best as could be assessed, it would seem that would enable most of the distant view to the north and north-east of both the Stebers and the Buddens to be kept, although the immediate foreground view would of course be blocked by the proposal.

37 The applicant said that to further excavate the proposal was not reasonable. The dwellings were already excavated 1 m to 1.5 m on the uphill side. The garage floors were only just above the boundary ground levels so to excavate them further would mean storm water would flow back towards the garage doors and necessitate extra drains.

38 Also, No. 23, being three storeys high and uphill of the proposal, created much more bulk and visual impact and would perhaps not dwarf, but certainly dominate, the proposal as seen from Emerald Drive in the streetscape. To lower the proposal further would give No. 23 an even more dominant appearance that the applicant did not want.

39 Mr Somanader, indicated that the proposal was not a speculative venture. His family, his sister’s family and a cousin’s family intended to own and occupy the three dwellings. Concerns of the objectors that they had seen it advertised for sale were explained by that being done when council refused the proposal in 2004. The three families thought they could not have the benefit of three vacation homes together and would have to sell and go elsewhere.

40 Mr Somanader, placed value in these busy days in getting the branches of the family together on holidays because they could not do it during work periods. When he found he could appeal the council’s refusal, the site was taken off the market. The “for sale” signs seen by the objectors must be old notices now superseded.

41 In coming to a conclusion on this appeal, I have put considerable weight on the evidence of Mr Sneddon. The applicant also said, that the council officer reports had never recommended refusal in any case.

42 The proposal meets the objectives for the residential subdivision and housing for the zone 2(a) of the Greater Taree Local Environmental Plan 1995 in which the site is located. State Environmental Planning Policy No. 71, objectives for coastal protection are met for the visual amenity of the coastline and bulk and scale of the proposal, the latter being acceptable within the scenic quality of the area, given it is a subdivisional area, for the erection of dwellings.

43 The design of the proposal with orientation of living areas to the north and water and sewerage services being provided by council for the development takes reasonable precautions for the efficient use of water and energy resources.

44 The design controls for dwellings under the Greater Taree Development Control Plan No. 40 have been incorporated in the design to acceptable extents and the subdivision proposal complies with the Greater Taree Development Control Plan No. 41.

45 There are no reasons sufficient for the Court to refuse consent orders sought by both the council and the applicant subject to the conditions in exhibit 7 with the added condition, No. 1A, to lower the proposal by reducing the roof pitch of all roofs to 15 degrees. The added condition is handwritten into exhibit 7.

46 Therefore the orders of the Court by consent of the parties is:

1. The appeal is upheld.

2. Development Consent is granted to Development Application No. 372/2004 of Greater Taree Council for the erection of three dwellings in accordance with plans prepared by Sorensen Design Architectural and Engineering consisting of seven drawings: 03100A sheet 1 of 7 dated 8/1/04 and 03100 being six sheets No. 2 of 7 to 7 of 7 all dated 19/9/03 as in Exhibit ‘B’ and the subdivision of the subject land into three lots as indicated in the Draft Subdivision Plan Exhibit ‘8’ subject to the conditions in attachment ‘A’ hereto.

3. Exhibits to be returned to the parties except A, B, 6, 7, 8.

4. No order as to costs.

_________________________

K G Hoffman

Commissioner of the Court

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