Connoisseur Property Holdings Pty Ltd v North Sydney Council [2018] NSWLEC 1000 | Case summary

Land and Environment Court (NSW)|2017-12-06

Judgment

The Applicant, Connoisseur Property Holdings Pty Ltd, appeals against the Council's deemed refusal of its Development Application no 10/2016/460 ('DA') seeking approval for the demolition of an existing building and the erection of a replacement residential flat building with basement car parking at 18 Illiliwa Street, Cremorne ('the site').
The development of a residential flat building is prohibited on this site as it is within the R2 Low Density Residential zone under the North Sydney Local Environment Plan 2013 ('LEP 2013'). However, in this case the zoning does not preclude the proposal because the Council concedes that the present use of the building on the site, as a residential flat building, is an existing use within the meaning of s106 of the Environmental Planning and Assessment Act 1979 ('EPA Act') by reason of the following: 1. In August 1933 Building Application 33/160 was lodged with the Council to erect a "block of 4 flats and 2 garages" on the site. The Building Application was approved; 2. The evidence establishes to the satisfaction of the Council that the construction of the building was completed in or about 1934, and that the apartments in the building have been occupied as residential accommodation since then. The Council has no evidence to suggest that the use has been abandoned within the meaning of s107(2) (a) ; 3. The use of the building and the site as a residential flat building was prohibited by North Sydney Local Environmental Plan 1989, and has continued to be prohibited under North Sydney Local Environmental Plan 2001 and under the current LEP.
As the development is founded on existing use right it follows that the provisions of the LEP and the North Sydney Development Control Plan 2013 (the DCP) which derogate from the incorporated provisions in the Regulations made under s106 (1) have no force or effect by reason of s108 (3). In other words the Council's planning controls cannot be applied in this case to restrict the proposed development. That said, they still remain relevant as part of the Court's merit assessment of the DA under s 79C the EPA Act. In that regard, it is also accepted that the planning principles for the assessment of developments on land with existing use rights as identified in Fodor Investments Pty Ltd v Hornsby Shire Council [2005] NSW LEC 71; (2005) 141 LGERA 14 are relevant considerations under s79C of the EPA Act. The relevant principles are set out at [17] in the following terms: 16 A common theme running through the judgments that have established legal principles in relation to existing use rights is that they identify the matters that do not apply to the assessment of applications. Apart from confirming that s79(C) of the Act applies; they are silent on the considerations that should inform the assessment of such applications. For this reason, it is useful to establish criteria for the assessment of proposals on land with existing use rights. Planning principles: Assessment of proposals on land with existing use rights. Four questions usually arise in the assessment of existing use rights developments, namely: How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment. What is the relevance of the building in which the existing takes place? Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision. What are the impacts on adjoining land? The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable. What is the internal amenity? Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.

The amended application

Before I turn to my assessment of the application under s79C of the EPA Act it is necessary to describe the proposed development in some detail because it is different to that originally lodged with the Council.
The current design is known as the "December 2017 plans" (Exhibit A) and is based on an earlier iteration of the plans known as the "Oct 2016 plans". The difference between the two sets of plans is explained in the correspondence to the Council from the Applicant's architect, Fox Johnson dated 1 December 2017. The letter states: "Refer attached revised drawings for 18 llliliwa Street Cremorne. These changes were incorporated based on the items arisen and agreed in the Joint Conference Reports. Current Schedule of Amendments noted as follows: General Notes • Windows of the neighbours have now been shown on all plans • Shadow diagrams include the hours between 9- 12pm in plan and elevation • The Car Lift By Levanta is specifies on all drawings where necessary as the P-50214 TOTAL Move LP-TM3060.3069 Lower Ground Floor • Retaining walls on Eastern Boundary moved away from TRZ by 100mm to the North and 600mm to the South - Refer Section KK • TRZ blue dashed line added to drawings Ground Floor • Outdoor terrace of Apartment C has been reduced in size by 2.3m2 • Reduced terracing in the landscape of Ground Floor Apartment C -Increase in street Level Landscaped area Level l • Landscaped area at street level has increased to 23.6m2 - The soil volume is therefore 68.44m3. The ADG has described this soil volume as enough to support a medium to large sized canopy tree (approx. 8- 12m high) • There is substantial understorey planting • Feature tree at street level included- for specification please refer to Landscape Drawings • The brick walls facing llliliwa Street have changed to a steel palisade to comply with AS/2890.1:2004 Fig 3.3 and in accordance with NCC2014 BCA clause D2.16 •The Existing steel palisade around the Car lift platform has been lowered by 200mm for extra visibility from the car lift to comply with AS/2890.1 2004 • The Existing steel palisade around the Car lift has increased in gaps for extra visibility. These gaps are less that 125mm and in accordance with the BCA (NCC2014 BCA clause D2.16) • The platform lift has increased in size by 200mm to the South towards llliliwa street as requested by Joint Statement of Mathew McCarthy and Robert Varga."

Expert evidence

Following the receipt of the plans for the re designed car lift and the supplementary acoustic evidence it is fair to say that the expert witnesses in this case are satisfied with the December 2017 plans, subject to the imposition of the Council's most recent draft conditions of consent dated 14 December 2017 - which include the aborists' recommendations in Exhibit 7 and the planning, traffic and acoustic experts recommended conditions. Shortly stated, they believe that the amendments to the design and further information has addressed the contentions stated in the Council's Amended Statement of Facts and Contentions dated 1 November 2017 and the written and oral submissions made by the objectors at the commencement of the hearing.
The agreed position of the various experts is summarised below.

The planning evidence

The planning experts retained by the parties in this case were Anthony Betros (on behalf of the Applicant) and George Youhanna (on behalf of the Council). There joint report is (Exhibit 4).
Following assessment the planners agreed, subject to receipt of more detail about the design of the car lift at each level and confirmation from the acoustic expert that its operation at night would be compliant with the relevant guidelines under the Industrial Noise Policy, that the amended application and proposed conditions of consent did not raise any unacceptable impact from a planning perspective. Put simply, they endorsed the imposition of the Council's draft conditions on any consent granted by the Court and supported the approval of the amended DA (Exhibit 3).
Although the height of the development at 10.9m within a 4 storeys design exceeds the permissible 8.5m height limit under cl4.3 of the LEP, the planners are of the opinion that the design has an acceptable bulk and scale having regard to the form, massing and scale of adjoining and surrounding sites within the zone which is a relevant consideration under Section1.4.7 of the DCP and the Design Principles under State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65). And, in the absence of a floor space ratio (FSR) control for the site (and relying on the site coverage controls in Section 1.5.5 of the DCP - as a key determinant of bulk, which limits maximum site coverage for a detached dwelling at 40% and 45% for dual occupancies) they considered the site coverage at 39% as satisfactory when compared to the site coverage on adjoining and surrounding sites in the R2 Low Density Residential Zone (contention 2 of the ASOFC).
The planners also agreed that the proposed landscaped area of approximately 28% is compliant - when calculated in accordance with the definition in the DCP, which excludes above basement planting. And, subject to the planter beds in the front setback area being reconfigured in relation to height relative to street level, dimensions and volume to provide for sustainable landscaping, including at least one medium to large canopy tree and substantial understorey planting, the proposed building's height, bulk and scale in the streetscape will be satisfactory.
The planners are of the opinion that the front, rear and side setbacks and the building height of the amended development are acceptable having regard to the existing and desired future streetscape, the visual impact, building separation, and privacy and overshadowing . They are also satisfied that the proposed windows and balconies have been designed to minimise overlooking of adjoining dwellings and private open space. Privacy screens have been included where appropriate (contention 5).
They accept that the shadow diagrams for the amended proposal (including additional plans and 3D diagrams) demonstrate that the proposal will not have an adverse impact on solar access for the adjoining dwellings at Nos 16 and 20 Illiliwa Street as the adjoining dwellings will continue to receive in excess of 3 hours of solar access between 9am and 3pm midwinter to the primary living areas and private open space (contention 7).
The experts also agree that the amended proposal (subject to the landscaping changes in the front setback particularly above basement planter beds) is satisfactory having regard to SEPP 65 Design principles relating to Context and Neighbourhood Character and Built Form and Scale. Although the proposed roof is uncharacteristic of surrounding development, the planners do not believe that it is incompatible with the streetscape which includes a variety of roof shapes and forms. The planners also believe that the proposed density of four dwellings is satisfactory as it does not increase the density of the existing site of four dwellings (contention 8).
According to the planners all concerns about drainage impacts/water issues channelled through to adjacent properties and vibration and damage to adjoining and adjacent properties during construction are now addressed by the draft conditions of consent. In that regard, the draft conditions include deferred commencement conditions requiring the creation of a 1m easement through Brightmore Street in order to satisfactorily drain stormwater from the site. They also require a positive covenant to be created over the affected downstream property to ensure the ongoing maintenance of stormwater drainage facilities related to the site.
According to the planners the impact of the development on the built environment in the locality in terms of how the bulk and scale of the proposed development will relate to what is permissible on surrounding sites and adjoining land is satisfactory. They agreed that the development will be in keeping with the existing or desired future character of the locality - as understood from the development standards and controls in the LEP 2013 and North Sydney Development Control Plan 2013 ('DCP'). They raised no issue in respect of the design principles set out in Fodor at [17]; accepted by the Court in Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 at [99]; Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58; (2010) 173 LGERA 240 at [45]; Masterbuilt Pty Limited V Hornsby Shire Council [2005] NSWLEC 212 at [15].

Traffic evidence

The Court received oral and written traffic evidence from Robert Varga (on behalf of the Applicant) and Matthew McCarthy (on behalf of the Council). The focus of their joint report (Exhibit 5) and oral evidence was directed to the local residents' concerns about queuing of traffic into the street whilst residents of the development waited to access the proposed car lift; and the need for a waiting bay outside the site.
Where traffic flow at the site entrance is restricted by a car lift, cl 3.5 of Access to Mechanical Parking Installations of Lifts AS2890.1:2004 requires the 98 percentile queue to be accommodated onsite. That is, no waiting bay is required where the probability of a vehicle waiting is less than 2%.
In this case, the traffic experts agreed that the Ausroads analysis confirmed that the probability of more than 1 car being in the system (i.e. with a second car waiting) was 0.5% and therefore no waiting bay is required.
Based on the expert analysis, the residents' concern about queuing to access the car lift was not supported by the expert evidence and for that reason the Council ultimately did not press traffic impacts as a basis for refusal of the DA.

Car lift

The introduction of a car lift to access the two level basement carpark into the streetscape ultimately became a question of safe design and acoustic impacts.
After receipt of all of the evidence these matters were addressed to the Council's satisfaction by the provision of an amended basement plan which addressed safe access/manoeuvring issues (Plan A -109E (Basement 01), and the applicant agreement to the imposition of detailed conditions (J1, J2, J3, J4, J5) requiring the provision of design details for the lift to be submitted to the Council prior to construction and certifications in respect of compliance with AS 2890.1:2004 prior to occupation.
The Council's draft conditions also require that the car lift platform must be programmed to return to the street level when not in use as a default position (J6); and prior to commencement of works the submission to Council's engineers of a construction traffic management plan to assist manage the development onsite and in the street - including any temporary road closure for a crane. The traffic experts raised no other issue with the amended development.

Acoustic evidence

The noise of the proposed modified Totalmove 30L car lift during operation at night was addressed by the applicant's acoustic expert James Small of Acoustic Logic.
Mr Small's original statement of evidence is Exhibit C (tab 6). It was supplemented by oral evidence at the hearing and a further report dated 13 December 2017 addressing the planners concerns as identified above at [15].
Importantly, the supplementary acoustic report received, as agreed by the Council, after the conclusion of the hearing confirms that the variation of the car lift design to include:

the installation of rails (that do not protrude above the upper street level);
an open style car lift platform, without walls or roof containing a Perspex screen or other see through material - (in accord with the car lift plans submitted to the Court on 14 December 2017 and referred to in the Council's most recent daft conditions), is still compliant with the relevant AS 1428.8 - 2008 which establishes standards for appliances used for hoisting materials and people.

To ensure that this compliant design is constructed the Council's draft conditions require that prior to occupation the applicant shall provide to the Council (and receive approval of such certification prior to occupation) a detailed "as constructed" certificate from an experienced and qualified installer that the car lift will be functional, workable and fit for purpose such that its operating speed is either equal to or faster than 150mm/sec.
Although the supplementary report confirms that the proposed Perspex screen on the western side of the lift will potentially increase noise levels up to 2dB (A) at the façade of the dwelling at 20 Illiliwa Street to 45dB (A) L1 this is not a problem. Mr Small remains of the opinion that the operation of the lift will comply with the sleep emergence level of background plus 15dB (A) set out in the Industrial Noise Policy and the noise emissions projected in the earlier Acoustic Logic report dated 28 November 2017. Again, the Council's conditions require testing for compliance before occupation of the development (condition C24 (a)) and the applicant has agreed to this. Based on the updated acoustic assessment provided to the Court it is accepted that noise from the lift is not a basis for the refusal of this DA.

Consideration

The local residents, who addressed the Court orally and through their written submissions to the Council, expressed the view that the development is out of character with the existing and desired character of the locality as described in cl 5.4.2 of the Area Character Statement for Benelong and North Foreshore neighbourhoods. Collectively, they said, the development does not respond or contribute to its context nor does it achieve a scale, bulk and height appropriate to the existing and desired future character of the street and surrounding area. They believe that there is no entitlement to a development of this scale and height on the site in circumstances where the scale of development proposed would not be permitted on the adjoining sites since it breaches many development standards and controls in the LEP and DCP.
The Council's primary objection to the proposed development is consistent with that of the local objectors. It also submits that the development is not in keeping with the existing or desired future character of the locality which can most readily be understood by reference to the relevant provision of the LEP and DCP together with what is observable upon inspection of the locality. The Council relies on the point made by the first question posed by the Senior Commissioner in Fodor Investments. It contends that the development is substantially bigger than the existing two storey building and the houses on the adjoining land and any future development in the locality under the existing controls.
The Council invites the Court, in its evaluation under s79C of the EPA Act to focus on Design Principles (1) and (2) of the SEPP 65 - which apply to the development by virtue of clls4 (1) and (5), and the combined effect of s79C (1) (a) (i) and cl28 (2) (b) of the SEPP 65; and the relevant provisions of the LEP and DCP. In particular, cl 2.8 (Land use table) and cl4.3 (Height) of the LEP, and cl1.4.6 (setbacks), cl1,4,7 (Form, Massing and Scale), cl 1.4.8 (Build Form Character), cl 1.4.10 (Roofs), cl 1.5.5(Site Coverage), cl 1.5.6 (Landscape Area), and the Area Character Statement for Benelong and North Foreshore neighbourhoods of the DCP.
In making these submissions the Council quite properly acknowledged that the expert evidence from the planners, traffic experts, arborists and acoustic experts was supportive of the amended application. As summarised earlier, after a consideration of the relevant Design Principles addressed by the verification statement (Exhibit K and C) and the questions identified in Fodor Investments the planners did not believe that the development was out of character with the existing or desired future character of the locality. They agreed that the amended proposal is acceptable in terms of bulk, height, setbacks, floor space/site coverage and parking with the use of the proposed car lift. Put simply, their uncontradicted expert evidence supports a finding that the amended development meets the Design Quality Principles (1) and (2) and is acceptable on a merit assessment under s79C of the EPA Act.
I accept the planners' expert assessment. I also accept the uncontradicted evidence and recommendations of the expert aborists and the traffic and acoustic experts. On balance the agreed expert evidence must be preferred to that of the local objectors because it is objective and is based on an informed assessment of the most recent design and the proposed conditions of consent which to my mind satisfactorily address the relevant objections raised by the local residents. As amended the development will not in my assessment generate unacceptable amenity impacts for the adjoining neighbours but offer appropriate and compliant internal amenity for the future residents of the building.
While a car lift is novel in this particular streetscape there are other car lifts within the locality, and the inclusion of 7 onsite parking spaces within the design must alleviate to some extent the existing parking problems identified by some of the local residents. I also agree with the planners that in time the extensive landscaping proposed in the frontage of the site will ensure that the car lift integrates well with the streetscape now and into the future under the current controls.
Accepting that there is no automatic entitlement to another building of the scale proposed in circumstances where the existing building is to be demolished; and that the relationship of new development to its existing and likely future context is a relevant consideration - it is my considered opinion that the development as amended by the conditions is acceptable on its merits after assessment under s79C. To that end, the Council has complied comprehensive conditions of consent which adopt each of the recommendations of the experts and the applicant has agreed to accept the imposition of such conditions on any consent granted by the Court. For the reasons outlined I have decided to grant approval to the development subject to the version of the Council's draft conditions forwarded to the Court on 14 December 2017.

Orders

Accordingly, the Court orders are: 1. Appeal is upheld. 2. Development consent is granted to development application no 10/2016/460 for the demolition of the existing residential flat building and the erection of a replacement residential flat building with basement car parking at 18 Illiliwa Street, Cremorne subject to the conditions in Annexure A". 3. The exhibits are returned apart from A and 3.

Commissioner Dixon Annexure A (DCC)

Amendments 04 January 2018 - Annexure A (DCC) attached. 04 January 2018 - Error corrected at [32] so sentence appropriately reads "...the planners did not believe that the development was out of character with the existing or desired future character of the of the locality." 16 January 2018 - Pursuant to UCPR 36.17, the slip rule, amend orders of 4 January 2018 [amendment made to Order 2] 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. Decision last updated: 16 January 2018

(2010) 173 LGERA 240

Connoisseur Property Holdings Pty Ltd v North Sydney Council

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (5)

Cited By (2)