Starkey v Warringah Council

[2015] NSWLEC 1261

Land and Environment Court

New South Wales

Medium Neutral Citation:	Starkey & Anor v Warringah Council [2015] NSWLEC 1261
Hearing dates:	29-30 June 2015
Decision date:	15 July 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: swimming pool, streetscape,
Legislation Cited:	Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Warringah Local Environmental Plan 2011
Texts Cited:	Warringah Development Control Plan
Category:	Principal judgment
Parties:	Carolyn Starkey Chris Dafel (Applicants)   Warringah Council (Respondent)
Representation:	Solicitors: Mr J Hones, Hones Lawyers (Applicants) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10307 of 2015

Judgment

1. Ms Starkey and Mr Dafel lodged Development Application DA2014/1149 with Warringah Council on 30 October 2014 seeking consent to install a swimming pool and carry out alterations to the front landscape including the construction of retaining walls at 104 Delmar Parade Dee Why. Council refused consent on 19 January 2015 and this appeal is lodged under the provisions of s97(1) of the Environmental Planning and Assessment Act 1979 (EP&AAct).

2. The main issues in the case are whether the impacts of the development are satisfactory in the streetscape and consistent with the council’s planning controls.

3. The matter was heard under s34AA of the Land and Environment Court Act 1979 (LECAct) and commenced on site with a view. No agreement was reached during conciliation and the matter proceeded to a hearing.

4. The applicant did amend the plans as a result of discussions held during the conciliation phase and was granted leave to rely on those plans.

The site and its context

5. The site is located on the south eastern corner of Delmar Parade and Patey Street, with frontages of 24.43m and 56.935m to each street respectively. The area of the site is 830.1sqm and the land falls from south to north.

6. A two storey dwelling house is located across the site and designed to take advantage of the district and water views available to the north and east. The dwelling is erected on a setback of approximately 10m to Delmar Parade and between 900mm and 1.5m to Patey Street with the external stairs that lead from the garage to the entry constructed on the boundary.

7. Pedestrian and vehicle access to the dwelling is from Patey Street. A relatively level area forward and to the north of the dwelling has been enclosed with a 1.8m high timber paling fence. No consent has been granted for the construction of that fence which encloses an area of private open space used by the residents of the dwelling and containing a small above ground swimming pool that was empty at the time of inspection, trampoline and outdoor furniture. The area is accessed from both levels of the dwelling, from the upper level by a balcony and external stairway and from the rumpus room on the lower level. It is elevated above the street with informal retaining walls and batters to the north of the wall with level change varying from 1m to 2.5m above footpath level. That area forward of the fence is overgrown and weed infested.

8. A large grassed yard is located to the south of the dwelling and can be accessed through the laundry on the upper floor. A timber 1.8m high timber fence is erected to the Patey Street boundary for the length of that yard.

9. Delmar Parade is the boundary between the R2 zone and a higher density R3 residential zone that permits residential flat buildings, that zone extending to the north of the site. Development on the southern side of Delmar Parade comprises single and two storey detached dwelling houses setback from the road with formalised and informal retaining walls within that setback on most properties responding to the slope of the land to the east of the site and embankments sloping to the dwellings to the west. Carports and garages are located forward of dwellings on two of the allotments. The majority of fencing is low and there are no other enclosed areas of private open space within the Delmar Parade setback within the visual catchment of the site.

10. Development opposite the site comprises residential flat buildings of varying height ranging from a street presentation of two to four storeys.

Background and the proposal

11. The plans determined by the council provided for the construction of a swimming pool and spa to the north of the dwelling house with associated landscaping works including tiered (two) stone retaining walls adjacent to the front boundary and a pool wall above the retaining walls to provide privacy protection for the pool. The top of that wall, which would be setback 2m from the Delmar Parade boundary, would reach approximately 4m above the footpath level. The wall would return across the Patey Street frontage and connect to the northern wall of the dwelling and along the eastern boundary of the site. A setback of 1.62m is proposed to Patey Street for the wall with a bin storage area constructed between the wall and the boundary on a 291mm setback.

12. The pool would be setback 2.9m from Delmar Parade and approximately 3.1m (scaled) to Patey Street. Its surrounds would be paved with a pool fence separating it from a paved and grassed area that opens off the lower floor of the dwelling and can also be accessed from the stairway to the upper level balcony. The plans provide for the replacement of the existing windows to the rumpus room with bifold doors.

13. The plans for which leave was granted (Exhibit A) altered the fencing and pool location. The retaining walls to Delmar Parade would be constructed on the boundary with one intermediate wall and then the pool wall. The boundary wall would vary in height from around 1m to 1.5m above footpath level with the top of wall at RL54.5. The intermediate wall would 1m high and the proposed pool wall at RL56.946 is 1.446m high when viewed from the street and 1.2m from inside the pool area. It would be erected on a 2.7m setback to Delmar Parade and Patey Street. The two terraced areas forward of the pool and the setback to Patey Street would be landscaped with the existing stone wall and Phoenix Palm retained in the north western corner of the site.

14. The pool wall would form the western face of the pool with a 500mm coping provided between the pool and the proposed northern wall. The lawn and paved areas remain unaltered from that originally proposed.

The planning controls

15. The site is zoned R2 Low Density Residential under Warringah Local Environmental Plan 2011 (LEP). Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives of the zone when determining a development application. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

16. The development is permissible with consent in the R2 zone.

17. Warringah Development Control Plan (DCP) applies to the site with the objectives of that plan as follows:

•   To ensure development responds to the characteristics of the site and the qualities of the surrounding neighbourhood

•   To ensure new development is a good neighbour, creates a unified landscape, contributes to the street, reinforces the importance of pedestrian areas and creates an attractive design outcome

•   To inspire design innovation for residential, commercial and industrial development

•   To provide a high level of access to and within development.

•   To protect environmentally sensitive areas from overdevelopment or visually intrusive development so that scenic qualities, as well as the biological and ecological values of those areas, are maintained

•   To achieve environmentally, economically and socially sustainable development for the community of Warringah

18. Part B of the DCP contains Built Form Controls and those relevant to the application are B5 Side boundary setbacks (900mm required) and B7 Front boundary setbacks (6.5m). There is an exception clause for corner allotments or sites with a double street frontage, where the minimum front building setback is 6.5m to both frontages, however the front building setback may be reduced to a minimum of 3.5m for the secondary frontage, but secondary street variations must consider the character of the secondary street and the predominant setbacks existing to that street.

19. The objectives and requirements for Front boundary setbacks are:

Objectives

•   To create a sense of openness.

•   To maintain the visual continuity and pattern of buildings and landscape elements.

•   To protect and enhance the visual quality of streetscapes and public spaces.

•   To achieve reasonable view sharing.

Requirements

1.   Development is to maintain a minimum setback to road frontages.

2.   The front boundary setback area is to be landscaped and generally free of any structures, basements, carparking or site facilities other than driveways, letter boxes, garbage storage areas and fences.

3.   Where primary and secondary setbacks are specified, buildings and structures (such as carparks) are not to occupy more than 50% of the area between the primary and secondary setbacks. The area between the primary setback and the road boundary is only to be used for landscaping and driveways.

20. The DCP does not define secondary frontage. Front boundary setback is defined as the distance measured perpendicular to the road frontage property boundary up to any structure on the allotment.

21. Design provisions are contained in Part D of the DCP with Private open space provisions detailed at D2 with the following objectives:

• To ensure that all residential development is provided with functional, well located areas of private open space.

• To ensure that private open space is integrated with, and directly accessible from, the living area of dwellings.

• To minimise any adverse impact of private open space on adjoining buildings and their associated private open spaces.

• To ensure that private open space receives sufficient solar access and privacy.

22. Relevant requirements are:

3. Private open space is to be directly accessible from a living area of a dwelling and be capable of serving as an extension of the dwelling for relaxation, dining, entertainment, recreation and children’s play.

4. Private open space is to be located and designed to ensure privacy of the occupants of adjacent buildings and occupants of the proposed development.

5. Private open space shall not be located in the primary front building setback.

6. Private open space is to be located to maximise solar access.

23. Part D13 applies to Front fences and front walls with the following objectives:

• To ensure that fencing, terracing and retaining walls are compatible with the existing streetscape character while creating visual interest in the public domain.

• To encourage innovative design solutions to improve the urban environment.

• To avoid a 'walled in' streetscape.

24. Relevant requirements are:

1. Fences, including side fences, located within the street setback area are to be compatible with the existing streetscape character.

2. Where a solid fence is required it is to be articulated to provide visual interest and set back to allow for landscaping to soften and screen the appearance of the fence.

3. Fences located within the front building setback area are to complement the existing streetscape character.

4. Fences are to be constructed to allow casual surveillance, except where there is excessive noise.

5. Gates are not to encroach over the property boundary when opening or closing.

6. Fences should complement the architectural period of the building.

25. Controls for Swimming pools and spa pools are in Part D16 with the following objectives and requirements:

Objectives

• To ensure swimming pools and spas are located to preserve the natural environment, streetscape and residential amenity.

• To encourage innovative design solutions to improve the urban environment.

Requirements

1. Pools are not to be located in the front building setback.

2. Where there are 2 frontages, swimming pools and spas are not to be situated in the primary street frontage.

3. Swimming pools and spas are to be setback from any trees. Australian Standard AS4970-2009 Protection of trees on development sites is to be used to determine an appropriate setback.

26. Primary street frontage is not a term defined in the DCP.

The issues

27. The contentions in the case are whether the development will have an unreasonable impact on the streetscape; is compliant with the requirements and objectives of the DCP and those objectives that relate to front boundary setbacks and swimming pools and spas.

28. Of particular relevance is whether the proposed works are within the primary or secondary street frontage of the site.

The evidence

29. The hearing commenced on site with a view of the property, the internal layout of the dwelling and its two areas of private open space. The parties walked along Delmar Parade to Carew Street and along that street to Quirk Street returning past the site to the west towards Pittwater Road to gain an understanding of the locality and its streetscape.

30. Expert town planning evidence was heard from Mr G Boston for the applicant and Mr D Milliken for the council. Ms N Sonter (applicant) and Mr A Powe (council) provided evidence on landscaping. They prepared a Joint Report, Exhibit 2.

31. The planning experts agree that a swimming pool could be located to the south of the existing dwelling and that the revised plan (Appendix E) reduces the height and visual impact of the proposed pool wall as viewed from both the Delmar Parade and Patey Street frontages with planters provided for landscaping along the frontages. They disagree whether the siting of a pool to the south of the dwelling is reasonable, where the most suitable location for a pool is, whether the area between the front boundary and the pool wall can be adequately landscaped and whether the development will result in an acceptable outcome for the streetscape. They do not agree which street is the primary and secondary street.

32. Mr Boston says that the dwelling has been designed and orientated to address Patey Street with both pedestrian and vehicular access obtained from that frontage. Because of the internal design, layout and relationship of internal living and adjacent private open space areas and the access arrangements, he says Patey Street is the primary street frontage. Mr Milliken disagrees and says that whilst access may be obtained off that street, the dwelling is oriented to Delmar Parade, the enclosure of the northern open space area has occurred without consent and this fact does not define the primary street frontage. He says that is to Delmar Parade.

33. Mr Boston says the area to the north of the dwelling is currently used as the principle recreational area by the current owners and their children, is, due to its elevation above Delmar Parade and its relationship to living areas, ideally sited for a swimming pool as it allows for casual surveillance at both ground and first floor levels. These characteristics ensure that any concern over visual streetscape impact is limited to the height, design and setback of the adjacent wall/fencing and the ability to provide appropriately for landscaping within such setback area. He says locating the pool in that area is consistent with clause D2 Private Open Space provisions of the DCP and the site has a relatively unique streetscape context, particularly having regard to the residential flat development opposite and the corner position of the site.

34. It is Mr Boston’s opinion that in the absence of an in-ground pool it would be reasonable for some form of fencing in excess of 1m in height to be provided within the Delmar Parade front setback for both privacy and security of the existing private open space area, the height and alignment of the fencing/wall currently proposed does not defeat the council’s front fencing objectives of controls and provides for a complimentary and compatible streetscape outcome. He says there is no clear established front building alignment with changes in topography in some places requiring relatively high retaining wall and fencing elements as well as carparking structures well forward of the 6.5m required front building alignment. The existing 10m dwelling setback far exceeds that control and the design provides for vegetative screening. He also cites a number of other properties where the council has allowed the construction of a pool within the side setbacks and says that this demonstrates the council relaxed the controls on merit assessment of those applications and that similar consideration is appropriate in these circumstances.

35. In response to issues discussed in the conciliation phase, Mr Boston prepared further amended plans (Exhibt D) that he says further address the contentions in the case. The applicant did not seek leave to rely on those plans. They make provision for the pool fence to be setback 3.5m from Delmar Parade and 2.7m from Patey Street with the pool to be setback 6.5m from Patey Street which he says would be compliant in terms of the primary street frontage requirement. Mr Hones, for the applicant, urged the Court to follow the “amber light” approach should these plans be found acceptable.

36. The parties agreed that because the northern pool wall is not constructed on the boundary of the site it would have to be 1.2m high to comply with the provisions of AS1926.2-2012 whereas, that portion of the wall to be erected on the eastern boundary of the property must be 1.8m. A Non-Climable Zone (NCZ) of a minimum 900mm is required adjacent to the 1.2m fence and, in accordance with part 2.2.1 of the Standard, there shall be no handholds or footholds, objects or plants that will facilitate climbing.

37. So as to comply with that provision, Ms Sonter provided amended landscaping details adjacent to the proposed fence (Exhibit E). That plan differed from the plans before the Court and Mr Boston’s plan and provided for a sandstone faced retaining wall maximum 1m height on the Delmar Parade Boundary, a wider garden bed behind that wall and a 1.2m high rendered retaining wall , a 900mm wide garden bed and then the 1.2m high rendered pool wall. Planting in the lower bed would comprise small shrubs and groundcover plants e.g. star jasmine, dwarf flax or correa species towards the front with a row of Nandina Domestica shrubs planted adjacent to the second wall. The 900mm wide bed adjacent to the pool wall would be planted with non-scaleable plants e.g clivea miniata. A 6m high tree has been added at the north western corner of the site

38. Mr Milliken says the height of the retaining walls needed to retain the land and the pool fence needed for privacy and pool safety will result in an unattractive outcome for the streetscape that will not be in keeping with the vast majority of other properties along Delmar Parade and Patey Street. He refers to requirement 2 of clause B7 of the DCP that requires the front boundary setback area to be landscaped and generally free of any structure, basements, carparking or site facilities other than driveways, letter boxes, garbage storage areas and fences and says this is to ensure a sense of openness is created in the streetscape and the visual continuity and pattern of buildings and landscape elements are maintained. It is also to protect the visual quality of the public space.

39. He further references clause D2 Private open space with the stipulation that the private open space shall not be located in the primary front building setback. He says that whilst some of the properties on the southern side of Delmar Parade include structures forward of the building line, the majority of properties have relatively open front yards and importantly there are no pools in the front yards of any properties along Delmar Parade or Patey Street. Despite changes in topography along the length of Delmar Parade, there is a reasonably consistent front building alignment interspersed with the occasional garage positioned on sites that are too steep for reasonable access. In the case of fences, the objectives of clause D13 are to ensure they are compatible with the existing streetscape character and to avoid a ‘walled in’ streetscape.

29. Whilst he accepts the Appendix E plans provide an improvement in terms of increased landscaping at the corner of the site Mr Milliken says there has been minimal change to the setback of the retaining walls and pool fence from Delmar Parade. The change will not result in an acceptable streetscape outcome. The pool fence, pool and associated paving are still well inside the 6.5m front setback of the primary frontage and this results in an unacceptable presentation to the streetscape and does not fit with the established character along Delmar Parade and Patey Street.

30. The landscape experts agree that there is adequate space in the proposed planter beds to accommodate the shrub species proposed in Appendix E and that with adequate maintenance they are likely to achieve the heights noted in the schedule. Those plants were however amended due to the need to comply with the swimming pool legislation and accordingly, planting of lesser heights is now proposed to ensure the NCZ is achieved.

31. Even with the amended plans and reduced wall height, Mr Powe says that rather than formalise the area with the retaining walls proposed, a more appropriate option would be to remove the weeds, expose natural rock and retain and leave the area in a more natural state. Ms Sonter says there is a need to smarten up the streetscape and because of the latest planting proposed the nandinas and cliveas won’t require much root volume.

32. Mr Powe says the proposal is not open and harmonious as envisaged by the objectives of the R2 Zone and clause B7 of the LEP and he is concerned that without adequate maintenance the walls would be a strong built element in the streetscape.

33. Mr Boston says the current streetscape does not demonstrate an openness and says the proposal shares the landscaping and openness with the public domain and having the fence set back does it better than any other fencing anticipated by the council’s controls so what is proposed is a better outcome. Mr Milliken disagrees.

Conclusion and findings

45. I agree with Mr Milliken that the primary street frontage of the site is to Delmar Parade. That is because the area to the north of the dwelling, prior to the unauthorised enclosure of part of that area, provides a setback that is consistent with other properties along that road. The minimal setback of the dwelling and enclosure of the rear yard to Patey Street with a 1.8m high fence to the street boundary reinforces the secondary nature of that street. The exceptions provision in clause B7 of the DCP only provides for a reduced setback where consideration of the character of the secondary street is undertaken. Setbacks along Patey Street are greater than those provide on the site and this further reinforces the secondary nature of the setting.

46. The southern elevation of the dwelling also presents as the rear or back of the house. The fact that access for both pedestrians and vehicles is obtained from Patey Street is not, in these circumstances a factor of relevance, the elevation to that street is more in keeping with a side elevation, consistent with my finding that Delmar Parade is the main or primary frontage.

47. Similarly, the fact that the design of the dwelling orients its living areas to the north does not alter this conclusion. This is due to both the orientation of the site and the ocean views that are available. That fact has resulted in a dwelling that has been designed to utilise its balcony areas as open space does not detract from the usability of the back yard for private recreation also. The fact that the latter does not directly open off living areas does not mean that it is not the principal open space area. It is larger than the area to the north of the dwelling, it exceeds the minimum area required under the DCP and would achieve the solar access required.

48. In considering the merits of the application, the DCP must be the focal point. The planning controls envisage open landscaped areas within the front setback area thereby avoiding a walled in streetscape. Walls are to be articulated, provide for landscaping and complement the existing streetscape character. Pools are not to be located within the primary street setback.

49. Having regard to the evidence, I am not satisfied that the development achieves the objectives of the controls. The extent of retaining walls proposed within the Delmar Parade setback does not complement the existing streetscape. Whilst there are retaining walls, those walls do not enclose the setback area and, with the need to ensure compliance with swimming pool legislation, the extent of landscape screening is minimised. The combined height of the walls at between 3 and 3.4m above footpath level is not consistent with the character of the area or achieve the objectives of the controls and would present as an incongruent element in the locality. This is evident from the site view with the current fence also out of character with the locality.

50. In relation to the desire of the applicant to locate the pool within the front setback area and Mr Boston’s argument that this is the most appropriate location having regard to the DCP controls for private open space and the passive surveillance available from living areas, I note that this is also inconsistent with the provisions of the DCP as it specifically prohibits that space within the primary front building setback. Whilst safety is paramount, so too is the need for active supervision. There are no physical constraints that prevent the pool from being installed within the rear yard and to do so would be consistent with the planning controls. The area receives adequate solar access and the location of a window in the adjoining property, cited as being a reason why the area is not suitable is not considered sufficient to warrant variation of the controls. The desires of the applicant in these circumstances do not outweigh the public interest in upholding the planning controls.

51. For these reasons it is not appropriate to vary the DCP controls and the application should be refused.

52. The Orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA2014/1149 for the installation of a swimming pool and to carry out alterations to the front landscape including the construction of retaining walls at 104 Delmar Parade Dee Why is refused consent.

3. The exhibits, other than exhibits A, D, E, F and 3 are returned.

______________

Sue Morris

Commissioner of the Court

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Decision last updated: 15 July 2015