Detita Pty Ltd v North Sydney Council

CITATION : Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 APPLICANT: Detita Pty Limited PARTIES : RESPONDENT: North Sydney Council FILE NUMBER(S) : 10270 of 2001 CORAM: Lloyd J Development Application :- heritage issues - merits KEY ISSUES: Construction & Interpretation: - provision in clause of the environmental planning instrument expressed to prevail - no ambiguity Environmental Planning and Assessment Act 1979 s 79C and s 97 LEGISLATION CITED: North Sydney Local Environmental Plan 2001 Development Control Plan No. 21, Milsons Point CASES CITED: Maxwell James Maxwell Pty Ltd v North Sydney Municipal Council, NSWLEC, Stein J, 13 December 1991, unreported DATES OF HEARING: 20/08/2001, 21/08/2001 and 22/08/2001 EX TEMPORE JUDGMENT DATE : 08/22/2001

HIS HONOUR:

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the refusal of a development application for a mixed use commercial and residential building at Nos. 22-28 Alfred Street, Milsons Point.
The site of the proposed development is at present occupied by five terrace houses which are described as heritage items under the relevant environmental planning instrument, North Sydney Local Environmental Plan 2001. It is proposed to demolish the terrace houses and erect a 10-storey building having commercial space on the ground floor and 42 residential units on the upper floors.
The development application was submitted to the respondent, North Sydney Council, on 24 November 2000 at which time the previous planning instrument which applied to the land, North Sydney Local Environmental Plan 1989, was in force.
The respondent had in July 2000 adopted the then draft local environmental plan which ultimately became North Sydney Local Environmental Plan 2001 upon its publication in the New South Wales Government Gazette on 1 June 2001.
Subclause 5(1) of the 2001 LEP, as I shall call it, repealed the 1989 LEP. Subclause 5(3) of the 2001 LEP provides, however: (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has been lodged but not finally determined before the commencement of this plan, the environmental planning instruments repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced.
Subject to two matters, it follows that the present development application must be considered against the provisions of the 1989 LEP. The first matter is the requirement under sub-cl 5(3) that the 2001 LEP shall apply as if it had been exhibited but had not commenced. That means that the then draft planning instrument must be awarded such weight as must be given to any such instrument when its implementation is certain and imminent.
The second matter relates to the heritage provisions of the 2001 LEP itself. Part 4 of the 2001 LEP is headed "Heritage Provisions." Clause 43 which is within Pt 4 states: 43 This Part to prevail The provisions of this part prevail over all other provisions of this plan to the extent of any direct or indirect inconsistency.
Ms S A Duggan, who appears for the applicant, submits that sub-cl 5(3) prevails over cl 43 so that the heritage provisions of Pt 4 do not apply in this instance. I am unable to agree with this submission. Clause 43 is expressed to prevail over all other provisions of the plan to the extent of any direct or indirect inconsistency. Subclause 5(3) is another provision of the plan. In another way, cl 43 is expressed to prevail over all other provisions of the plan which clearly includes sub-cl 5(3). Plainer words of intention could not be found. The heritage provisions contained in Pt 4 of the 2001 LEP are intended to apply on and from the commencement of that LEP. To hold otherwise would fly in the face of the clear and unambiguous words of cl 43.
Moreover, there is a relevant inconsistency between the 1989 LEP and the 2001 LEP in that the subject properties are listed as heritage items under the latter instrument but not so listed under the former instrument; and the heritage provisions themselves in the two instruments are also different.
There is no ambiguity in cl 43. It is, therefore, not permissible to go to any extrinsic evidence for the purpose of resolving any perceived ambiguity in its language. It follows that the plain words of cl 43 must be applied. The provisions of Pt 4 of the 2001 LEP prevail over sub-cl 5(3) and the provisions of Pt 4 must be applied according to their tenor. This necessarily includes reference to the definition of "heritage item" where those words are used in Pt 4, which in turn is a reference to any listed item.
I thus conclude that the provisions of Pt 4 of the 2001 LEP apply to this proposed development. If I am wrong in so concluding, then those provisions nevertheless remain a relevant consideration even if one assumes that the 2001 LEP had been exhibited but had not commenced: see sub-cl 5(3) of the 2001 LEP and s 79C(1)(a)(ii) of the EP&A Act. In this respect the then draft local environmental plan must be regarded as being at an advanced stage and should be afforded determining weight.
The subject land is zoned Mixed Use under the 2001 LEP and is zoned 3(a) (Commercial "A") under the 1989 LEP. It is common ground that the proposed development is permissible with development consent under both instruments.
I turn first to the heritage issues. It is necessary to refer to a number of the heritage provisions in Pt 4 of the 2001 LEP. Clause 44 sets out the specific objectives of the heritage conservation controls. They are relevantly to: … ( c) ensure the conservation of heritage items and their curtilages and conservation areas, and (d) ensure that development does not adversely affect the heritage significance of heritage items and conservation areas
Clause 45(1)(c) relevantly provides that development consent is required to wholly or partly demolish or move a heritage item.
Clause 48 is an important provision. Subclause (1) provides: (1) Heritage item objectives The specific objectives of the heritage item controls are to (a) prevent the demolition of heritage items and (b) provide specific criteria to be considered when determining an application in respect of a heritage item, and (c) ensure heritage items are conserved and maintained".
Subclause (2) provides: (2) Heritage item controls When determining whether or not to grant consent to a development application in respect of a heritage item the consent authority must consider the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item concerned .
Subclause (3) provides: (3) The consent authority's consideration under subclause (2) must include, but is not limited to, consideration of: (a) the heritage significance of the item as part of the environmental heritage of North Sydney, and (b) the impact that the proposed development will have on the heritage significance of the item and its setting, including any landscape or horticultural features, and (c) the measures proposed to conserve the heritage significance of the item and its setting, and (d) the extent, if any, to which the carrying out of the proposed development would affect the form of an historic subdivision.
Subclause (5) provides: (5) Consideration of proposed development involving demolition of a heritage item Consent must not be granted to development involving demolition of a heritage item, until the consent authority has considered: (a) whether the heritage significance of the item is insufficient to warrant its retention, and (b) whether the heritage item is reasonably capable of conservation, and (c) whether the heritage item is not in a structurally sound condition, and (d) whether the character, design and aesthetics of any proposed replacement building or work and its relationship to the character of the surrounding buildings and works is appropriate.
Expert evidence on the heritage issue was given by Mr S L Davies on behalf of the respondent and by Ms J M Hill on behalf of the applicant. Mr Davies' experience includes a term as a member of the New South Wales Heritage Council from 1990 to 1998 and he was Deputy Director and Head of Conservation of the National Trust of Australia, Victoria, from 1988 to 1990 and of the National Trust of Australia, New South Wales, from 1990 to 2000.
Ms Hill is an architect and heritage consultant but her experience is not, it seems, as extensive as that of Mr Davies.
I must confess to always being mildly surprised that two heritage experts can come to opposite conclusions as to the heritage value of the same building or group of buildings. Nevertheless, after reading their respective reports and hearing their oral evidence, I am able to make the following observations: (a) The five houses at Nos. 22, 24, 26A, 26 and 28 Alfred Street are the last surviving late Victorian terraces in Alfred Street, Milsons Point. (b) They are representative of the historical form of subdivision and of the original pattern of settlement in this part of North Sydney. (c) Numbers 26A and 28 are in reasonably good original condition, as was conceded by Ms Hill. (d) The remaining three terraces are of reasonable quality, as was also conceded by Ms Hill, although Nos. 22 and 26 have been modified significantly with respect to their external appearance. (e) The five terraces are a distinct group of buildings which are similar in scale to each other. As Ms Hill said in her evidence, four of the five represent a common typology, the exception being the somewhat extensively modified number 26. (f) Terrace buildings are not rare and appear in large numbers elsewhere in Sydney and, in particular, in North Sydney. Better examples exist in North Sydney; for example, in Jeffrey Street, on the opposite side of Bradfield Park to the subject land. (g) Each of the terraces retains sufficient of its original fabric to allow for its conservation, faithful restoration, reconstruction and adaption under the terms of the Burra Charter. They are all structurally sound.
As I understand the evidence, each of these observations is accepted by both Mr Davies and Ms Hill. The principal argument advanced by Ms Hill is that there are hundreds of terraces elsewhere, many of which are better examples than those on the subject land, such as the more extensive terrace developments in Kirribilli, on the opposite side of Bradfield Park.
It is, nevertheless, necessary to apply to the terraces on the subject land the criteria or heads of consideration set out in Pt 4 of the 2001 LEP to determine whether they should be demolished. In so doing, the achievement of the objectives of the heritage controls as described in cl 48 must be the aim of the exercise.
As I have noted, the three specific objectives identified in sub-cl 48(1) are: (a) to prevent the demolition of heritage buildings; (b) to provide specific criteria to be considered when determining an application in respect of a heritage item, and; (c) to ensure that heritage items are conserved and maintained.
The specified criteria or heads of consideration to be considered when determining an application in respect of a heritage item include the extent, if any, to which the carrying out of the proposed development would affect the form of an historic subdivision: see sub-cl 48(3)(d).
In the present case the proposed development would remove the last example of the historic form of subdivision in Alfred Street, although I accept that there are other examples of the historic form of subdivision elsewhere in North Sydney, such as those in Jeffrey Street, Kirribilli.
Other relevant criteria or heads of consideration include whether the heritage significance of the heritage item is insufficient to warrant its retention and whether the heritage item is reasonably capable of conservation: see sub-cl 48(5)(a) and (b).
In considering these criteria, it is relevant that these are the last remaining Victorian terraces in Alfred Street and that they reasonably capable of conservation under the terms of the Burra Charter.
A further relevant criterion or head of consideration is whether the relationship of any proposed replacement building to the character of surrounding buildings is appropriate: see sub-cl 48(5)(d). This reference seems to be wide enough to include a consideration of the uses to which the surrounding buildings are put, such uses being part of the character of those buildings. It clearly requires a consideration of the impact of the proposed replacement building. This is also a relevant head of consideration under s 79C of the EP&A Act.
The surrounding buildings comprise a mix of residential and commercial buildings. Two occupiers of one of those buildings gave evidence. Mr B J Lutman lives at Level 5, No. 5 Northcliff Street. He would lose his view across Mary Wollstonecraft Lane, at the rear of the terrace houses, and over the terraces towards the Harbour Bridge. He also has concerns about privacy. Mr Lutman's unit does, however, have an extensive view over Lavender Bay to the west.
Mr M J Perry is a director of Hely Horne Perry Medcalf Architects Pty Limited whose offices are on Level 3, No. 5 Northcliff Street. According to Mr Perry it is important for an architectural office to have natural light. The replacement building would reduce the natural light on the eastern, or Mary Wollstonecraft Lane, side of his offices. There would also be a loss of outlook across the lane and over the terraces towards the Harbour Bridge. He also has concerns about privacy.
Mr J D Simons gave evidence on behalf of Eastview (Australia) Pty Limited, which owns the property immediately opposite the subject land across Mary Wollstonecraft Lane at its rear. The lane is only about 4.5 metres wide. A development consent exists for the redevelopment of his company's land with an eight-storey residential flat building fronting Northcliff Street. He said that construction of that building is due to start in about two months' time.
Mr Simons also said that the design of his company's proposed building was dictated by the presence of the heritage items, being the five terrace houses, across the lane. If the terrace houses were to be demolished and the replacement building erected, then the amenity of the approved development would be ruined, particularly with the loss of light and loss of privacy. Whilst the design of his company's project puts the living areas on the Northcliff side of the building, all the bedrooms are on the laneway side and would be thus affected.
It seems to me that there was a reasonable expectation on the part of those who either own or occupy the surrounding buildings that the existence of the listed heritage items on the subject land would mean that those heritage buildings would be conserved and maintained. The proposed replacement building would thus have a dramatic impact on the surrounding buildings.
On balance, I am inclined to the view that when measured against the criteria specified in cl 48 of the 2001 LEP, these heritage items should not be demolished but be conserved and maintained.
I am also inclined to prefer the opinions of Mr Davies to those of Ms Hill where such opinions diverge. In giving his evidence, Mr Davies impressed as an expert witness whose answers to questions were concise and direct and he readily conceded a number of propositions put to him which were contrary to the interests of his client, the respondent council.
Ms Hill's answer to questions were typically lengthy and unresponsive and I was unsure of whether, in a number of instances, her answers were either affirmative or negative to the questions that were asked. I do not mean to be critical of Ms Hill, whose qualifications and expertise I accept; it is the fact that many of her answers to questions were unresponsive and which leads me to place greater confidence in the opinion of Mr Davies.
My conclusion that the heritage items should not be demolished and that they can, and should, be conserved and maintained means that the appeal must fail. I should, however, briefly state my conclusions on the merits of the proposed replacement building.
The proposed replacement building in my opinion should not be approved. There are a number of departures from the development controls which apply. It is proposed to have a floor space ratio of 8.24 to 1. The maximum permissible floor space ratio is 3.5 to 1: see cl 20 of the 1989 LEP and cl 8 of Development Control Plan No. 21, Milsons Point. This exceedence is equivalent to about 3,000 square metres of floor space, representing between four and five floors.
The replacement building exceeds the height controls. It is proposed to have a maximum height of 30.25 metres, whereas the maximum permissible height is 26 metres: see cl 29 of the 2001 LEP. And the building is proposed to have ten storeys, whereas the maximum permissible number of storeys is eight: see cl 19A of the 1989 LEP.
The replacement building does not comply with the building height plane: see cl 21A of the 1989 LEP and cl 30 of the 2001 LEP. The extent of non-compliance is an exceedence of about 4 metres on the front elevation. This would in turn have an admittedly only marginal effect on shadows cast by the building on Bradfield Park.
Objections have been made under State Environmental Policy No. 1 ("SEPP 1") against the floor space ratio, the height and the height plane controls. I accept the force of the argument that numerical standards are often a crude reflection of intent and that a development which departs from the standard may, in some circumstances, achieve the underlying purpose of the standard.
Before I go on I should say this: Ms Duggan relies upon a number of propositions in support of the SEPP 1 objections. She relies on the judgment of Stein J in Maxwell James Maxwell Pty Limited v North Sydney Municipal Council, 13 December 1991, unreported, in which it was held that the underlying purpose of the relevant development standards in IDO number 60 North Sydney which then applied was clearly to limit traffic generation and parking.
Reliance is also placed on the judgment of Commissioner Bly in Eastview (Australia) Pty Limited v North Sydney Council, 7 April 2000, in which the Commissioner said: As for the significant breach of the floor space ratio development standard, I heard no evidence to persuade me that the approach taken by Justice Stein in relation to the relevant objectives should be varied. He concluded in relation to the Quadrant, as I do in this case, that the underlying objective is to limit traffic generation and parking.
Ms Duggan also relies upon the aims and objectives of Development Control Plan No. 21, which applies only to Milsons Point, to show that: the floor space ratio control was to moderate the bulk of development at Milsons Point as viewed from the harbour and foreshore; to reinforce the step-down from the ridge to the foreshore; and to break up the wall of development along the ridge line.
In the present case, however, there are two other considerations which suggest that the development standards should not be relaxed and which, in any event, leads me to the view that this development should not be approved. Firstly, as Mr H M Sanders (the town planner who gave evidence for the council) said in the course of his oral evidence, there is a reasonable expectation on the part of neighbours that any new building would be a complying building, especially in relation to the floor space ratio control. Secondly, there are amenity considerations. These are relevant considerations: see, for example, cl 8E of Development Control Plan No. 21.
The proposed building has residential flats facing Alfred Street and residential flats facing Mary Wollstonecraft Lane. In order to avoid problems of privacy in relation to the development on the opposite side of the lane, it is proposed to provide obscure glazing to those windows which face the lane and fixed slatted privacy screens on the outside edge of the balconies which face the lane. It is also proposed that the obscure glazing be fixed; that is, not capable of being opened.
Whilst these measures would resolve the privacy issue, they in turn severely affect the amenity of those units in the proposed buildings which face the lane. The occupiers of those units would have either a narrow view slot down the lane towards the harbour or, alternatively, a narrow view slot up the lane to other buildings.
Mr N Ingham, the consultant town planner who gave evidence for the applicant, said that the main benefits attaching to these units were proximity to Milsons Point Station and the attributes of the immediate area, including Bradfield Park and the harbour; and good access to the facilities and activities of the city and North Sydney.
In other words, in order to enjoy these units, the occupiers would have to get out of them! In my opinion, this is a level of internal amenity which is appalling. It should not be permitted. I accept the views of the Council's consultant planner, Mr Sanders, on this issue. Moreover, a building complying with the relevant controls would clearly lessen the overall impact on the occupiers of the surrounding buildings.
For these reasons I would not be inclined to allow the objections made under SEPP 1 or grant development consent on a consideration of the merits. Even if the applicant had overcome the heritage issue, this proposed building is so deficient that it would not be approved.
The obvious solution to the amenity issue, it seems to me, would have been to design the building with "through" units, as has been adopted in the development on the opposite side of the lane, so that every unit would have a reasonable level of amenity. This would mean, of course, that there would have to be a complete redesign.
It follows that the formal orders of the Court must be: (1) The appeal is dismissed. (2) The exhibits may be returned.
DUGGAN: Your Honour, I'd ask that the exhibits remain on the Court file for a period of 28 days.
HIS HONOUR: No, the exhibits can be returned, I'm sure the parties can look after them. They are bulky. They occupy space which we do not have.
DUGGAN: I'm content with that if there's an undertaking from the solicitors for the Council that they not return the exhibits to other persons until the expiration of that period of time.
PARRY: I'm not in a position to give that undertaking your Honour but I couldn't imagine there could possibly be any difficulty in re-arranging the exhibits. The only exhibit which, as I understand it, belongs to any other person is the large model and the Max Dupaine photograph. While I have no instructions to offer that undertaking, I could imagine no difficulty whatsoever in retaining those two exhibits.
DUGGAN: I don't know where the Dupaine photo comes from but maybe if my friend could seek those instructions, it may be that his solicitors have no difficulty giving that undertaking.
HIS HONOUR: Where did the photograph come from?
PARRY: I now have instructions to retain those two exhibits in my chambers for 28 days.
DUGGAN: If the balance can be retained by the solicitors for that period, thank you, your Honour.
HIS HONOUR: On that undertaking, the exhibits may be returned. I hereby certify that the preceding 62 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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