Carey V North Sydney Council [1999] NSWLEC 174

Carey V North Sydney Council [1999] NSWLEC 174 - NSWLEC 1999 case summary — Zoe

[16]

I adopt the following descriptions of the two proposed developments from Section 3 of the Report of Mr Terence Byrnes, Architect and Town Planner (Exhibit P): 3.1 The two proposals involve the construction of two similar developments. Both consist of two storey attached dwellings, comprising four dwellings, with attic rooms and basement car parking area for 10 vehicles, 8 resident spaces and 2 visitor spaces accessed off Carr Street via a ramp from the north-western corner of each site. 3.2 The 39 - 41 Carr Street development is orientated to face Carr Street and each dwelling has separate pedestrian access from Carr Street. This proposal would retain the existing sandstone retaining wall fronting Carr Street and consequently, the ground level of the dwellings would be between 2 m and 3 m above the street level. 3.3 With regard to the 37 Carr Street development, due to the narrow frontage to Carr Street, one of the four units would address the street. The three remaining dwellings are orientated to face the side boundaries of the site. All dwellings are accessed from Carr Street via a pathway along the southern boundary of the site. The proposal would include reassembly of the existing sandstone retaining wall along the front property boundary and consequently, the ground level of these dwellings would also be approximately 3 m above street level. 3.4 The three habitable levels of the dwellings consist of living area at ground level, bedrooms at level 1 and an additional bedroom at the attic level. It is proposed to excavate a large proportion of each site to allow for the provision of the basement car park. To the rear of the proposed building it is proposed to excavate to the ground floor living level to allow for a level courtyard area directly accessible from each living area. A retaining wall up 6 m in height would be located along the eastern property boundary. A courtyard area is also proposed to the front of each dwelling to be at the existing ground level. These courtyards are landscaped by way of a grassed area and perimeter planting particularly along the northern and southern side boundaries and within the front setback area adjacent to Carr Street. 3.5 The proposed building at No 39 - 41 Carr Street consists of four attached units. However, the street facade is broken into two distinct elements which are symmetrical. As illustrated on the Carr Street, western elevation, the development would read as a two storey building with a large pitched roof containing attic windows. Each facade element is centred around a protruding entrance to each unit. To either side of the entrance the facade is punctuated by several large windows and juliet balconies to bedrooms at the first floor level. The large roof is pitched at a similar slope to those on adjoining properties and is broken up by a protruding hip feature over each entrance and bay windows to bedrooms on each elevation. The bulk of the building is modulated through the combination of large feature windows, protruding balconies and the use of composite textures and colours of the external finish. 3.6 Similarly the No 37 Carr Street development has three habitable levels consisting of the living area at ground level, bedrooms at level 1 and an additional bedroom at the attic level. It is proposed to excavate the site to allow for the provision of the basement car park. To the rear of the proposed building excavation would occur to allow for a level courtyard area directly accessible from each living area on the ground floor. A retaining wall up to 3 m in height would be located along the northern property boundary and up to 2 m along the eastern property boundary. A courtyard area is also proposed to the front of each dwelling, located at the existing ground level, with the exception of that for the front unit which would require filling to conform with the predominant existing ground level adjacent to the Carr Street frontage. These courtyards are landscaped by way of a grassed area and perimeter planting particularly along the northern and southern side boundaries and within the front setback area adjacent to Carr Street. 3.7 The proposed building on No 37 Carr Street consists of four attached units including one of the units orientated to face Carr Street. As illustrated on the Carr Street, western elevation, drawing No BD07, the development would read as a single, two storey dwelling with a pitched roof. The remaining three units are set back at least 20 m from the front property boundary and are hidden from view behind the front unit. The front facade is symmetrical, a large portion of which is occupied by French doors at both the ground and first floor level. The opening at the first floor level is recessed and a balcony protrudes forward of the facade for access from the first floor bedroom area.

[17]

Again I adopt the following descriptions from the Report of Mr Byrnes: 2.1 The applications relate to two sites, one known as No 37 and the other as No 39 - 41 Carr Street, Waverton, described by survey as Lot B in DP 367247, Lots 1 & 2 in DP 749325, and Lot 20 and 22 in DP 315569. The site is located on the eastern side of Carr Street in the dead-end section of the road. 2.2 No 39 - 41 Carr Street is regular in shape, with a site area of 1,115 m2. The frontage to Carr Street (western boundary) is 36.58 m; the rear boundary (eastern boundary) is 30.08 m; whilst both side boundaries (northern and southern boundaries) measure 30.48 m. The land falls from the rear (eastern) boundary to the Carr Street (western) boundary by approximately 7 m over a distance of 30 m, or a grade of approximately 1 in 4. 2.3 The land known as No 37 Carr Street is irregular in shape, with a site area of 1,445 m2. The frontage to Carr Street (western boundary) is 15.24 m; the rear boundary (eastern boundary) is 23.18 m; the southern side boundary measures 52.93 m and the northern side boundary is skewed with measurements of 30.48 m, 6.50 m and 37.93 m. The land falls from the rear (north-eastern) portion of the site to the Carr Street (western) boundary by approximately 7 m over a distance of 40 m, or a grade of approximately 1 in 6. 2.4 On the No 39 - 41 Carr Street site are two single storey, brick and tile dwelling-houses. On the No 37 Carr Street site there is a single storey, brick and tile dwelling-house with a large rear yard area including a former tennis court. Vehicular access to both sites is provided to garages directly off Carr Street, which take advantage of the level difference between the street and the front yard. The front of the sites are linked by a sandstone retaining wall, at a varying height of approximately 2 - 3 m and punctuated by garage openings. 2.5 Immediately adjoining the site to the north, is No 43 Carr Street which accommodates a residential flat building, which has a recent consent for demolition and replacement with attached dwellings. To the east of the site is a townhouse development, known as No 6 - 8 Waverton Avenue, set at a significantly higher level due to the difference in ground level. Two large double story dwelling houses, known as No 10 and 12 Waverton Avenue are likewise well elevated and setback behind No 37 Carr Street. To the east of the site is a single dwelling house known as No 28 Clifton Street. To the south of the site are two single dwellings, set a few metres below No 37 Carr Street, one known as No 35 Carr Street and the other No 26 Clifton Street. 2.6 To either side of Carr Street exists two groups of residential developments which are distinctly different. The area on the western side of Carr Street, directly opposite the site, accommodates several large residential towers up to 13 storeys in height. While conversely, the area on the eastern side of Carr Street, adjacent to the site, consists of a mix of residential flat buildings up to 3 storeys in height, two storey terrace housing semi-detached dwellings and large single dwellings built at widely varying times up to very recently. 2.7 Overall, the character of the area, while predominantly medium to high density, would be regarded as very diverse. The recent construction of a number of contemporary residential flat developments and new dwellings including No 49 Carr Street, and a development on the north eastern corner of Carr Street and Bay Road. 2.8 It is noted that Council has also recently given consent for the construction of an attached dwelling development on the adjoining site at 43 Carr Street, which extends for a greater length than the present building along the common boundary with No 41 Carr Street.

[34]

The Report contains the following "summary" with respect to the relevant LEP and DCP controls: 5.23 The proposed developments fail to comply with the statutory and policy controls of North Sydney Council only with respect to very minor non-compliances with the standard for the Soft Landscaped Area for 39 - 41 Carr Street, Number of Storeys for 37 Carr Street, and Building Height Plane and Required Maximum Dwelling Size for both developments is neither complied with nor justified. 5.24 The variation to the Building Height Plane prescribed by North Sydney Local Environmental Plan 1989 relates to a minor portion of No 39 - 41 Carr Street along the southern elevation of the proposed building and to a minor portion of an attic window on the southern elevation of No 37 Carr Street. It is evident, as discussed in Issue No 1 below, that the extent of non-compliance is minor and would not have any adverse impact upon the amenity of the adjoining properties. The variation would be within the provisions of Clause 13(2) of the LEP, however, a SEPP1 Objection has been prepared with respect to this variation, see Appendix C. 5.25 With respect to number of storeys of No 37 Carr Street, the non-compliance relates to a portion of the basement car park area which protrudes above ground level as a result of an existing natural depression. It is evident, as discussed in Issue No 3 below, that the extent of non-compliance is minimal and would not have any adverse impact upon the amenity of the adjoining properties. The necessary SEPP1 objection has been proposed with respect to this variation, see Appendix D. 5.26 Whereas the plans submitted with the development application failed to demonstrate adequate soil depth within the soft landscaped area, amended drawings indicate that adequate soil depth can be provided and, hence, the control in North Sydney Council's Development Control Plan No 1 is satisfied. 5.27 The above variations to the statutory and policy controls of North Sydney Council are considered minor and, as demonstrated below in relation to the issues of the case, the proposal would meet the desired objectives of these numerical controls.

[54]

In the case of the proposed development for Nos 39 - 41, his Report (Exhibit 5) provides the following reasons for his opinion: 5.17 I say this because it is my opinion that an attic is generally considered to be a room or rooms within the roof space of a dwelling, frequently used for storage or as a small bedroom with limited head room and small dormer windows or skylights to provide natural light. Access to an attic is usually by way of a set of stairs which may often be less convenient than the stairs providing access to the lower levels of the building. 5.18 Having regard to the above, it my opinion that the third level of accommodation, proposed over each of the dwellings, constitutes a storey for the purposes of Council's controls. Each of these areas is accessed via a lift as well as a set of stairs and each contain a large bedroom with an ensuite and a useable balcony. In addition, on all elevations there is a clear delineation of three levels of windows thus adding to the view that this level of accommodation is configured as an additional storey for each of the dwellings. 5.19 Accordingly, I would characterise the attached dwellings as a maximum of three storeys which does not comply with the two storey maximum height limit set by clause 12 of the Local Environmental Plan. 5.20 More particularly, it is also necessary in the assessment of the number of storeys development standard, to address the objectives of the standard in question. These objectives, while not explicitly stated in the Plan, are taken to include ensuring that new development is of an appropriate bulk and scale, maintains and reinforces existing character, preserves views/outlook and limits overlooking and overshadowing of adjoining properties. 5.21 There are a number of design features of the development which accentuate the bulk and scale of the building and are recognised as being inconsistent with the relevant streetscape, and as such inconsistent with the existing character (these will be considered further below). In addition, this non-compliance also contributes to the adverse impacts that the proposal has on the amenity of the adjoining properties (these amenity impacts are also considered further below).

At a glance

Court

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Before

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Judgment (101 paragraphs)

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