Architects Haywood and Bakker Pty Ltd v North Sydney Council

Mr J R Lovell, who is a consultant town planner, gave evidence for the applicant. He considered the non-compliance with cl 12 to be merely technical in view of the contention that the three-storey aspect will have no overshadowing or privacy impacts, and that it will reduce the roof volume as well as create visual interest.

But Mr Czeref's evidence of bulk and massing is compelling. The proposed building will present as a three-storey building in a street of predominantly single-storey houses. The carriage style development at No 56 does not have a similar impact, because it presents as a two-storey building of bulk and scale comparable to the single storey houses which surround it. This impact is, in my opinion, significant, and not merely technical. There may be no particular impact of overshadowing or privacy by reason of the extended walls, but the bulk and massing impact is an unacceptable impact and it outweighs any visual interest which the extended walls might provide.

I conclude that the SEPP 1 objection is not well founded, and that the non-compliance with the storey control in cl 12 of the LEP has a significant and unacceptable impact.

The issue initially raised by the council concerned the potential impacts resulting from the proposed development exceeding the building height plane controls in the LEP and the Draft LEP by 0.6 m. The result was likely to be impacts upon privacy and overshadowing, particularly as regards the adjoining property on the south, No 48 Young Street. In addition, cl 9(4) of the DCP provides that the council (and the Court on appeal) shall not consent to a building unless the building "… has been designed and sited to minimise overshadowing of adjoining properties …" .

However, during the hearing the applicant offered two concessions - the dormer windows to unit 2 and unit 3 on the southern elevation would be deleted, and the windows to the second and third bedrooms of unit 2 would have fixed lower panes of obscure glass. These concessions mitigated the privacy and overshadowing impacts in two respects. First, the treatment of the bedroom windows would be likely to avoid any privacy impact on No 48 at all. Secondly, the deletion of the dormer windows would result in there no longer being any overshadowing impact on the dining room of No 48 during the winter solstice, as the shadow cast at that time would fall below the sill of the dining room window.

There remains, nevertheless, an issue about the overshadowing impact upon the deck at No 48. That deck area is located at the rear of the dwelling and abuts the fence that separates No 48 from the site. It has a wooden floor and a transparent poly-carbonate roof, and it is partially enclosed by a lattice screen with vines growing on it. The deck contains a barbecue, a collection of plants and a number of chairs.

Evidence about the use of the deck was given by the owner, Mr P J Skogstad, who lives there with his family. He explained that the deck is their only outdoor recreation space. There is a small front yard, but that slopes down to Young Street and does not provide a usable recreational space.

Mr Czeref estimated that the proposed development would result in the loss of about 50 -60 per cent of the available sunlight to the deck at noon in midwinter. His estimate, he said, was not affected by the shadow cast by the perimeter fence, the lattice, the roof or the vegetation. He thought that the solar access to the deck is at present very good and precious, considering that the deck is the dwelling's only outdoor area. In his opinion, the loss of sunlight to the extent of 50 - 60 per cent would be significant and constitutes an unacceptable impact.

Mr Lovell considered that the perimeter fence, the lattice, the roof and the vegetation restrict direct sunlight penetration of the deck and that would mean that the shadow impact of the proposed development upon the deck would be less than 50 per cent. It was Mr Lovell's opinion that, taking into account the fact that the zoning permits medium density development of the site and the site is located on No 48's northern boundary, No 48 is quite vulnerable to a loss of sunlight from any development upon the site, and in the circumstances he thought that the impact was not excessive.

I accept Mr Czeref's estimate and opinion. The proposed development will result in a substantial loss of sunlight to the deck in midwinter, and I conclude that this is an unacceptable impact. Carriage style development

As I have earlier noted, it is common ground that the proposed development constitutes "carriage style development" for the purposes of the Draft LEP, although that term is not defined in the instrument. Upon the basis that under the Draft LEP the site will fall within the Residential B zone in which attached dwelling developments are permissible with consent, certain of its provisions are relevant to carriage style development.

Two of those provisions contain express reference to carriage style development. First, cl 16(e) stipulates that one of the specific objectives of the residential zone controls is "to avoid carriage development". Secondly and similarly, cl 24(1)(c) provides that one of the specific objectives of the attached dwelling development controls is also to "avoid carriage development".

There are two other provisions which reinforce the express objective of avoiding carriage style development . The first is cl 16(a) which provides that another objective of the residential zone controls is a range of dwelling types which includes (iii) attached dwelling developments, which will be a medium density form of housing … each dwelling having its own entrance directly from the road into the dwelling and a majority of dwellings having an address to the road;

The second is cl 24(2)(b) which provides that an attached dwelling development must not be erected unless "at least 50% of dwellings in the attached dwelling development have their primary frontage and orientation to a road or public place".

It is clear, therefore, that, although carriage style development is not expressly prohibited within the zone into which the site will fall under the Draft LEP, it is seen by that instrument as an undesirable form of development, and the Draft LEP adopts a planning approach which requires avoidance of that style of development within residential zones.

Section 79C(a)(ii) relevantly requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. The Draft LEP was first placed on public exhibition in September 1999, and, after revision, it was against exhibited between March and April 2000. Its provisions are therefore a relevant consideration. However, at the time of the hearing of this appeal, submissions following the second exhibition were being considered, and it had not yet been made by the Minister.

The question, then, is the degree of weight to be placed upon its provisions in the assessment of the proposed development. That involves considering whether the making of the Draft LEP is certain and imminent. It also involves considering the effect cl 5(3) of the Draft LEP which is a savings provision in the following terms: (3) Where a development application has been lodged but not determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this Plan had been exhibited but had not commenced. . 33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 202; Parramatta City Council v Takchi (Stein J, NSWLEC, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref's evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case.

The savings provision does not require a different approach. The effect of cl 5(3) is to place the Draft LEP in precisely the same position so far as concerns this development application whether it had formally come into force or still remained a draft as currently pertains. In either case, it is to be taken into consideration as if it had been placed on public exhibition, and accordingly given some weight in the assessment of the planning implications of the development application.

The approach I have taken to the weight to be attributed to the Draft LEP does not, I think, differ from the approach taken to the same draft by Talbot J in Mathers v North Sydney Council [2000] NSWLEC 84, unreported. His Honour gave significant weight to the Draft LEP in his assessment of the development application there under consideration for reasons similar to those which persuade me that this is the correct approach.

The fact, then, is that the proposed development does not accord with the planning approach adopted by the Draft LEP. It is a carriage style development, and that is to be avoided. Furthermore, its design does not pay any heed to the proposed control and objective which reinforce the avoidance of that style of development. It is not the case that at least 50 per cent of the units in the proposed development have their primary frontage and orientation to Young Street, as cl 24(2)(b) requires, nor could it be said that a majority of the units will have "an address" to Young Street, in accordance with the objective set out in cl 16(a)(iii). (I perceive some difficulty with the use of the word "address" in the phrase "having an address to the road", but I take it to have a similar meaning, in its context, to cl 24(2)(b), that is, that the majority of the units will have an orientation towards the road). However, I emphasise that it is not the non-compliance with that control and objective that is critical because if they were in force and applied, no doubt an objection under SEPP 1 could be made to their application in the particular circumstances of this case. It is rather that the proposed development ignores the planning approach adopted by the Draft LEP.

The proposed development involves the removal of two mature trees. One is an evergreen alder located at the front of the site and which is approximately 10.5 m in height. The other is a jacaranda, approximately 9 m in height and located at the rear of the site. Evidence about the significance of these trees and the impact of their removal was given by Mr E V Stubis, a consultant arborist and horticulturist, on behalf of the council, and by Mr I M Jackson, a landscape architect, on behalf of the applicant.

Mr Stubis said that both trees were significant and should be retained, because their removal would result in a substantial impact on the site and the immediate vicinity. He regarded the evergreen alder as "the major screening, amenity and landscape element" at the front of the site, dominating the streetscape by providing, with only one other tree on a neighbouring site, tall canopy relief, and it is a tree likely to survive for a further 20 years or more with reasonable maintenance. In giving oral evidence, he said that there would be no space to replant a tree of similar height, with the result that the high canopy effect would be lost. As to the jacaranda, which he described as a triple leadered specimen, Mr Stubis said that it was likely to survive for a further 40 years or more, assuming reasonable maintenance, and it "provides amenity, privacy and screening function towards new development along Young Lane" .

Mr Jackson did not regard either tree as significant because neither is an "endemic or historically important species". Their removal would, in his opinion, result in a short term impact upon the existing tree canopy, but they would be replaced with 14 medium sized trees which would in five years start contributing to the local tree canopy. He considered the jacaranda to be a "poor" specimen, and the evergreen alder as an "undesirable invasive species" which is located too close to the existing dwelling and likely to cause damage to the building when mature.

The evidence supports a conclusion that there will be an impact upon both the amenity and visual aspect if both trees are removed, and that the impact of the removal of the evergreen alder will be more significant, because it contributes to the visual amenity of the street as well as the site. However, neither tree is of such importance and significance that its removal should not be permitted in any circumstances, and I would not, therefore, refuse to grant development consent on this ground alone.

As I have earlier noted, I consider that each of the impacts which I have set out would not, in isolation, justify the refusal of development consent, but, when considered cumulatively, they justify a conclusion that the combined impacts of the proposed development are adverse and unacceptable and development consent should be refused.

(1) The appeal is dismissed. (2) Development application No 248/00 for demolition of the existing dwelling and carport and the strata subdivision and construction of five attached dwellings at No 50 - 50A Young Street, Cremorne is determined by the refusal of consent. (3) The exhibits may be returned.

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34. The savings provision does not require a different approach. The effect of cl 5(3) is to place the Draft LEP in precisely the same position so far as concerns this development application whether it had formally come into force or still remained a draft as currently pertains. In either case, it is to be taken into consideration as if it had been placed on public exhibition, and accordingly given some weight in the assessment of the planning implications of the development application.

35. The approach I have taken to the weight to be attributed to the Draft LEP does not, I think, differ from the approach taken to the same draft by Talbot J in Mathers v North Sydney Council [2000] NSWLEC 84, unreported. His Honour gave significant weight to the Draft LEP in his assessment of the development application there under consideration for reasons similar to those which persuade me that this is the correct approach.

36. The fact, then, is that the proposed development does not accord with the planning approach adopted by the Draft LEP. It is a carriage style development, and that is to be avoided. Furthermore, its design does not pay any heed to the proposed control and objective which reinforce the avoidance of that style of development. It is not the case that at least 50 per cent of the units in the proposed development have their primary frontage and orientation to Young Street, as cl 24(2)(b) requires, nor could it be said that a majority of the units will have "an address" to Young Street, in accordance with the objective set out in cl 16(a)(iii). (I perceive some difficulty with the use of the word "address" in the phrase "having an address to the road", but I take it to have a similar meaning, in its context, to cl 24(2)(b), that is, that the majority of the units will have an orientation towards the road). However, I emphasise that it is not the non-compliance with that control and objective that is critical because if they were in force and applied, no doubt an objection under SEPP 1 could be made to their application in the particular circumstances of this case. It is rather that the proposed development ignores the planning approach adopted by the Draft LEP.

37. The proposed development involves the removal of two mature trees. One is an evergreen alder located at the front of the site and which is approximately 10.5 m in height. The other is a jacaranda, approximately 9 m in height and located at the rear of the site. Evidence about the significance of these trees and the impact of their removal was given by Mr E V Stubis, a consultant arborist and horticulturist, on behalf of the council, and by Mr I M Jackson, a landscape architect, on behalf of the applicant.

38. Mr Stubis said that both trees were significant and should be retained, because their removal would result in a substantial impact on the site and the immediate vicinity. He regarded the evergreen alder as "the major screening, amenity and landscape element" at the front of the site, dominating the streetscape by providing, with only one other tree on a neighbouring site, tall canopy relief, and it is a tree likely to survive for a further 20 years or more with reasonable maintenance. In giving oral evidence, he said that there would be no space to replant a tree of similar height, with the result that the high canopy effect would be lost. As to the jacaranda, which he described as a triple leadered specimen, Mr Stubis said that it was likely to survive for a further 40 years or more, assuming reasonable maintenance, and it "provides amenity, privacy and screening function towards new development along Young Lane".

39. Mr Jackson did not regard either tree as significant because neither is an "endemic or historically important species". Their removal would, in his opinion, result in a short term impact upon the existing tree canopy, but they would be replaced with 14 medium sized trees which would in five years start contributing to the local tree canopy. He considered the jacaranda to be a "poor" specimen, and the evergreen alder as an "undesirable invasive species" which is located too close to the existing dwelling and likely to cause damage to the building when mature.

40. The evidence supports a conclusion that there will be an impact upon both the amenity and visual aspect if both trees are removed, and that the impact of the removal of the evergreen alder will be more significant, because it contributes to the visual amenity of the street as well as the site. However, neither tree is of such importance and significance that its removal should not be permitted in any circumstances, and I would not, therefore, refuse to grant development consent on this ground alone.

41. As I have earlier noted, I consider that each of the impacts which I have set out would not, in isolation, justify the refusal of development consent, but, when considered cumulatively, they justify a conclusion that the combined impacts of the proposed development are adverse and unacceptable and development consent should be refused.

(2) Development application No 248/00 for demolition of the existing dwelling and carport and the strata subdivision and construction of five attached dwellings at No 50 - 50A Young Street, Cremorne is determined by the refusal of consent.