Blackmore Design Group Pty Ltd v North Sydney Council

Applicant v North Sydney Council Respondent REASONS FOR JUDGMENT Introduction

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the refusal of development consent for the demolition of an existing building and the construction of an apartment building at No. 100 Cremorne Road, Cremorne Point.
2. The development application was lodged with the council on 13 November 2000, at which time the land was subject to North Sydney Local Environmental Plan 1989 ("the 1989 LEP"). It is common ground that the proposed development was permissible with consent under that instrument. On 8 June 2001 the 1989 LEP was repealed and North Sydney Local Environmental Plan 2001 ("the 2001 LEP") commenced. It is common ground that the proposed development is prohibited under the under 2001 LEP. The 2001 LEP, however, contains a saving clause, cl 5(3) which is in the following terms: 5(3) Saving and transitional provision Where a development application has been lodged but not finally determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but not commenced.
3. The respondent, North Sydney Council ("the council"), gave four reasons for its refusal of the development application. At the hearing of this appeal, however, the council relies upon only one issue: 1. Whether the application should be approved having regard to the fact that the development the subject of the application is prohibited under the Residential G zoning of North Sydney Local Environmental Plan 2001 ("LEP 2001"), in particular: (a) what is the appropriate weight to be attributed to LEP 2001, and in particular the prohibition of the development the subject of the application; and (b) what is the proper construction of clause 5(3) of LEP 2001 which requires the provisions of the LEP 2001 to be taken into account "as if this plan had been exhibited but had not commenced" and whether the proper approach is to consider LEP 2001 in the form as gazetted as being both certain and imminent, thereby warranting the allocation of determining weight to the LEP 2001. The proposed development and the expert evidence
4. The land is occupied by a single detached dwelling which is to be demolished. The site is to be excavated and it is proposed to construct a building containing a basement level of car parking and a two-storey residential development with attic rooms. There will be two apartments on the ground floor and two apartments in the upper floor, with the later having bedrooms in the attic level which is generally contained within the pitched roof.
5. The existing dwelling is largely obscured from Cremorne Road by vegetation. The new building when viewed from Cremorne Road will appear as a one-storey development because of the fall in the land towards the rear and will be similarly obscured from the road. When viewed from Cremorne Lane at the rear of the property the proposal will present as a two-storey development with attic rooms.
6. A plan was admitted into evidence which shows that the "footprint" of the proposed building is almost the same as that of the existing building, although set back slightly further from Cremorne Lane. The "envelope" of the proposed building is almost the same as that of the existing building with similar set backs from the side boundaries except that the proposed building is marginally higher. According to the evidence of Mr A D Smith, the applicant's consultant town planner (who was not cross-examined and whose evidence I accept), the proposed building will be sympathetic to adjoining development and other buildings in the locality which are characteristic of the Cremorne Point area.
7. The site of the proposed development is within a conservation area under the 2001 LEP, which is defined as land shown edged in blue on the map. The existing building is a contributory item, being included in the list of contributory items in Sch 4 to the 2001 LEP. It is not itself a heritage item.
8. In support of the development application to demolish the existing building the applicant furnished a report by Mr G Brooks, an architect and heritage consultant. Mr Brooks states that although the house at No. 100 Cremorne Road is listed as a contributory item (in the then draft LEP), the proposed demolition will have only a marginal effect on the significance of the conservation area as a whole and on the immediate vicinity. Mr Brooks's report further states: It is of a restrained Inter-War styling that is quite different to the mainstream federation architectural styling of the buildings that define the character of Cremorne Point. It makes as relatively minor contribution to the Inter War aspects of the locality and as a low, single storey composition, it makes very little contribution to the overall scale and imagery of the conservation area. With its location set well below street level and dense converge of mature trees, the cottage is effectively invisible when viewed from Cremorne Road and makes no apparent contribution to the streetscape. It makes a limited contribution to the rear laneway. … The demolition of the existing building and its replacement with a new building, is therefore regarded as an appropriate response to the established character of the Cremorne Point Conservation Area, particularly the immediate locality at the upper portion of the ridge and the northern end of the peninsular. It will have no unacceptable adverse impacts on the heritage significance of the conservation area.
9. The applicant also relies upon a report by another heritage consultant, Mr R Staas. (Again, he was not cross-examined and I accept his evidence.) His report states (inter alia): 1.11 The existing building on the site is an inter war bungalow which has undergone a considerable degree of modification in form and detail. While in overall form and scale it is generally compatible with other contributing elements within the Conservation area it makes very little contribution to the character of the area or to the streetscape of either Cremorne Road or the rear laneway to the west. 1.21 This appeal then is made in relation to the Council refusal of the application based on their unwillingness to approve the demolition of an identified "Contributory Item" within the Conservation area for the purpose of erecting a new apartment building under [Draft Local Environmental Plan 2001]. As can be seen from the above assessments the level of contribution the existing building makes to the Conservation are [sic] is extremely limited and is adequately replaced by the contribution of the proposed new development. In my opinion the existing building is non contributory and the effect of its demolition will be negligible. The new development is a well-designed infill which will also make a negligible impact on the conservation area. 1.22 The application was made before the new the new LEP was made and is covered by the savings provision of that instrument. The new development even though it was applied for under the previous legislation meets the objectives that the Council sought to achieve by the new LEP. Even if the Court were minded to take the LEP 2001 into account in assessing this application, I concur with the other professionals who have looked at both the existing building and the proposed infill development and consider that the development will meet the aims of the zoning in maintaining the character and heritage significance of Cremorne Point by providing a development which is characteristic and which maintains the existing streetscape.
10. The development application was assessed by the council's own staff heritage expert, Mr E Shepherd. In his report on the development application Mr Shepherd states (inter alia): The existing building is in reasonable condition and appears to be structurally sound. The form, massing and use of materials in the building are typical of buildings which are characteristic of the area. It is not considered to be a remarkable example of the Inter-War bungalow style. The building was identified in the most recent heritage review as a contributory item. Under the provisions of the [Draft Local Environmental Plan 2000] , clause 51 Council is required to assess the impact of the loss of the contributory item to the heritage significance of the conservation area, the building's structural condition and the design of the proposed redevelopment and the relationship of that to the character of the conservation area. Contribution of existing building The loss of the contributory item will remove the modest interwar bungalow from the conservation area. As discussed in the heritage impact assessment, the building has a minor role in the streetscape of Cremorne Road. It is set well below street level and is concealed behind substantial plantings. The removal of the building from the streetscape will not substantially impact the character or heritage significance of Cremorne Road.
11. As to the proposed building Mr Shepherd states: Proposed Development The design of the proposed replacement building utilises characteristics in its design which make reference to Federation detail in Cremorne Point. Materials, form and the detail of the design, all reinforce predominant characteristics. The setback to the Cremorne Road is greater than both adjacent buildings, setbacks on the western side of Cremorne Road are irregular. The height of the proposed building is consistent with adjacent development to the south The design has merit in that the form and massing of the building are similar to that seen in the characteristic buildings of Cremorne Point. The roof design reflects the characteristic pitch and form of roofs in the conservation area.
12. Mr Shepherd concludes that the proposal is considered acceptable.
13. A joint report to the council by its Executive Assessment Planner Ms K Gordon and its Manager Development Services, Mr S Beattie supports the development application and states (inter alia): The proposed development utilises characteristic element within the design, and the height, bulk and scale are appropriate to the location, thereby satisfying the objectives of [Draft Local Environmental Plan 2000] , despite being prohibited under that instrument. The subdivision pattern is not altered and the building footprint, orientation and proposed landscaping are acceptable. The proposed design is acceptable to the streetscapes of Cremorne Road and Cremorne Lane subject to a condition reducing the amount of glazing to the Cremorne Lane frontage. The proposal results in no significant detrimental impacts to existing properties by way of overshadowing, lass of privacy or loss of views. The demolition of the existing cottage is acceptable in this situation, notwithstanding the comments of the Conservation Planner, due to the suitability of the proposed development, its lack of visibility from Cremorne Road and the unremarkable nature of the existing cottage. The new development will be suitable within the conservation area, therefore the loss of the contributory item is not fatal to the application. … Significant weight of consideration must be given to the fact that the proposal represents a form of development which will be prohibited under LEP 2000. It is to be noted that apartments in existing buildings are an allowable use, however, new apartments are not. It is considered that the proposal meets the general intent of the 2(g) zone as expressed in [Draft Local Environmental Plan 2000] [Draft Local Environmental Plan 2000] , and typifies in bulk and scale of the form of development being sought, and consent is recommended on that basis.
14. No evidence contrary to the conclusions of the above-mentioned experts was adduced by the council. Mr H M Sanders, the council's consultant town planner, relies almost solely on the fact that, although the application may be saved by cl 5(3) of the 2001 LEP, there is a general principle that the greater the certainty and imminence of the making of the draft local environmental plan, the greater weight should be given to the provisions of the draft plan in the consideration of a development application. He notes that the development application was lodged at a time when preparation of the draft LEP was well advanced, having been publicly exhibited (I interpolate here that in fact it had been exhibited three times), submissions having been considered and the draft plan having been adopted by the council and submitted to the Department of Urban Affairs and Planning to be made by the Minister. According to Mr Sanders: To the extent that the provisions of Local environmental Plan 2001 represent the views and values of the community, in my opinion, approval of the subject application would also undermine one of the fundamental policy considerations which underpin the planning system - that a primary reason for a planning regime to exist is to provide equity and certainty between persons with different interests in land. The 2001 LEP
15. I have already noted cl 5(3). The land is within Residential G Zone, which covers Cremorne Point. Clause 14 states: Consent must not be granted to the carrying out of any development unless the consent authority is satisfied that the development: (a) is in accordance with and promotes the specific aims of this plan and the objectives of the zone, and (b) in particular is in accordance with and promotes the character of the neighbourhood within which the development is carried out.
16. The reference in cl 14(a) to the specific aims of the plan is a reference to cl 3, which itemises those aims. Of particular relevance is the following: (a) in relation to the character of North Sydney neighbourhood, to (i) achieve any desired character for the neighbourhood that is described in a character statement for the neighbourhood, and promote development which is compatible with neighbouring development in terms of bulk, scale and appearance, …
17. The particular objectives of the Residential G zone are itemised in the zoning and permissible use table under cl 14, being to: (a) maintain the character and the heritage significance of Cremorne point and prevent this from being eroded by unsympathetic development, and (b) ensure that the features of development - such as height, bulk, subdivision pattern, building footprint and orientation, and landscaping - are similar to those of characteristic development and fit into the existing streetscape.
18. The zoning table lists the types of development which may be carried out within the zone. They include "apartment buildings adaptation" and "apartment buildings revision". The proposed development is described as an "apartment building" and is prohibited. "Apartment buildings adaptation" is defined as the creation of an apartment building within an existing building. "Apartment buildings revision" is defined as (a) the carrying out of alterations for the purpose of an apartment building, or (b) the creation of a new apartment building within the envelope of an apartment building that lawfully existed on the appointed day (being the day on which the plan took effect). The submissions of the parties
19. Ms S A Duggan, appearing for the applicant, made the following submissions. (1) The council has raised no merit issues against the proposed development, relying solely on the prohibition in the 2001 LEP and the construction of cl 5(3). (2) The 2001 LEP should not be given determinative weight since that would not be consistent with the purpose of cl 5(3) which requires an assumption that the proposed use is permissible. (3) Even if one gives the 2001 LEP the weight of being imminent and certain, that does not necessarily mean that there is no further inquiry. (4) It is necessary to also consider the planing goals of the 2001 LEP and to determine whether the proposed development is consistent therewith. (5) In the present case the proposed development is consistent with the underlying planning approach of the 2001 LEP - the form of the building generally conforms with the characteristic buildings in the area and will comply with the aims of the plan and with the particular objectives of the Residential G zone.
20. Mr I J Hemmings, appearing for the council, made the following submissions. (1) Since the 2001 LEP has now been made, it should be considered as imminent and certain for the purposes of cl 5(3), therefore determining weight should be given to it. (2) It was clearly an objective of the 2001 LEP to prohibit the development for which consent is now sought. (3) The fact that the proposed development is prohibited under the 2001 LEP means that it must be inconsistent with the specific aims of the plan and the objectives of the zone. (4) A further objective of the 2001 LEP is to prevent the demolition of contributory items. (5) An application of these principles must lead to a refusal of the development application. Conclusions
21. The first question is the weight to be given to the 2001 LEP. That question is governed by cl 5(3) of that instrument: "the environmental planning instrument repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced". With the benefit of hindsight it is possible to say that although the 2001 LEP had not been made, at the time of lodgement of the development application on 13 November 2000 it was both certain and imminent. At that stage, the then draft LEP had been exhibited three times, had been formally adopted by the council and had been forwarded to the Department of Urban Affairs and Planning for making by the Minister.
22. The weight to be given to a draft local environmental plan in such circumstances is settled. In particular the question has been considered in a series of cases involving the present 2001 LEP in draft form.
23. Mathers v North Sydney Council [2000] NSWLEC 84 (unreported) was heard when the then draft LEP had had its second exhibition but submissions had not been considered. Talbot J said (at par[29]): It is appropriate given the history of the development of the draft instruments to give draft LEP 2000 significant weight to the extent the Court is satisfied that approving the development will not detract from its objectives as expressly stated or reflected in the proposed controls, …
24. Architects Haywood & Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 (unreported) was heard after the third exhibition, when submissions following that exhibition were being considered. Pearlman J put the question in the following terms (at par [32]): The question, then, is the degree of weight to be placed upon [the plan's] 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…
25. Pearlman J then said (at par [33]) that the planning approach which the draft LEP adopts must be regarded as certain to be brought into force within the reasonably foreseeable future; and hence she placed "significant weight" upon its provisions in the assessment of the development application in that case. Her Honour then turned her attention to the savings provisions of the draft LEP (at par [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.
26. Edward Listin Properties Pty Ltd v North Sydney Council [No.2] [2000] NSWLEC 181 (unreported) was also heard after the third exhibition but also after the council had resolved to make the plan and had forwarded it to the Department of Urban Affairs and Planning to be made by the Minister. Talbot J said (at par [9]): In the circumstances outlined above it is incumbent upon the Court to place considerable weight on any relevant provisions of the draft LEP and the impact that granting of development consent may have on implementation of its objectives.
27. Walker v North Sydney Council [2001] NSWLEC 211 (unreported) was heard almost one month after Edwards Listin Properties. Cowdroy J said in that case (at par [31]): Arising form the judgments of Talbot J and Pearlman J the adoption of the draft LEP is imminent … The Court therefore gives due force to such clause and upholds the council's submission that cl 68 of the draft LEP warrants rejection of the development application.
28. Finally, Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 (unreported) was heard after the 2001 LEP had been made. I held (at par [6]) that the effect of the savings clause (cl 5(3)) meant that the notionally draft planning instrument must be awarded such weight as must be given to any such instrument when its implementation is certain and imminent. I further decided (at par [11]) that in the circumstances of that case the notionally draft local environmental plan should be afforded determining weight.
29. It seems to me that in applying the savings clause, cl 5(3), to the present case, one cannot ignore the fact that the 2001 LEP has been made. In applying the words of the clause that "the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced", it is necessary in the light of that circumstance to assume that the making of the notionally draft plan was certain and imminent. In Architects Haywood v Bakker Pty Ltd, Pearlman J said that the savings provision does not require a different approach. I thus reject the submissions of the applicant that this approach is not consistent with the purpose of cl 5(3).
30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).
31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.
32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.
33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.
34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.
35. His Honour further stated (at par [35]): … If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.
36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
37. In adopting this approach to the present proposal I have come to the view that the application should be approved. I have come to this view notwithstanding the fact that the 2001 LEP must be notionally regarded as being certain and imminent. The following considerations, in particular, lead me to this view: (1) It is common ground that the proposal is permissible under the 1989 LEP which, by dint of cl 5(3) applies as if it were in force at the date of determining this application. (2) There are no merit issues which would justify a refusal of the application. The proposal is supported by the council's Executive Assessment Planner (Ms K Gordon), by its Manager Development Services (Mr S Beattie) and by its heritage expert (Mr E Shepherd). It is supported by the applicant's consultant town planner (Mr A D Smith) and by the applicant's two consultant heritage experts (Mr G Brooks and Mr R Staas). Even the council's consultant town planner (Mr H M Sanders) makes no criticism of the proposed development on its merits. Indeed, the merits of the proposal are all one way. (3) The expert evidence, some of which I have described above, demonstrates that the proposed development complies with cl 14 of the 2001 LEP, namely, it is in accordance with and promotes the specific aims of the plan and the objectives of the Residential G zone; and in particular, is in accordance with and promotes the character of the neighbourhood. (4) In particular, Ms Gordon and Mr Beattie in reporting to the council expressly state (as noted in par [13] above) that: "the proposal meets the general intent of the 2(g) zone as expressed in DLEP 2000, and typifies in bulk and scale of the form of development being sought, and consent is recommended on that basis". (5) The evidence shows that the built form of the proposed building is consistent with and compatible with the character of the neighbourhood. It is not antipathetic to any of the aims of the 2001 LEP, the zone objectives or the desired character of the zone. (6) Although one of the specific objectives of the conservation area controls under the 2001 LEP is to prevent the demolition of contributory items, consent may nevertheless be granted for such demolition to take place provided the consent authority has taken into consideration the relevant criteria specified in cl 49 of the 2001 LEP. The evidence of the heritage experts (that is, Mr Shepherd, Mr Brooks and Mr Staas) is again, all one way. When assessed against the criteria there is nothing to suggest the existing building should remain or that the proposed replacement building will have an adverse effect on the character and significance of the conservation area.
38. For the foregoing reasons the appeal is allowed and the development application is approved. I note that the parties have agreed upon the condition of consent.
39. The formal orders are as follows: (1) The appeal is allowed. (2) Development consent is granted for the demolition of the existing building at No. 100 Cremorne Road, Cremorne Point and the construction thereon of an apartment building, subject to the conditions annexed hereto. (3) The exhibits, other than Exhibit C (the development application plan) may be returned.

I hereby certify that the preceding 39 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.