Easton and Anor v Lane Cove Council

Super Studio v Waverley [2004] NSW LEC 91; Project Venture Developments v Pittwater [2005] NSW LEC 191; CASES CITED: Pafburn v North Sydney Council [2005] NSW LEC 444; Salanitro-Chafei v Ashfield Council [2005] NSW LEC 366; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING: 12/02/2007 and 05/03/2007

APPLICANT Mr I. Hemmings, barrister instructed by: Ms S. Hill of Susan Hill & Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr S. Griffiths, solicitor and Ms R. Vickers, solicitor of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10845 of 2006 Graham Easton and Meridene Easton v Lane Cove Council

1 This is an extempore judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Lane Cove Council's refusal of a development application for the property known as 73 Carlotta Street, Greenwich. The subject site has two street boundaries to Carlotta Street and Bay Street.

2 On the site there is a semi detached dwelling, the other half being at No. 75 Carlotta Street, and the vehicle rear access is to Bay Street where there is a garage excavated into the rock face with parking provision for three vehicles.

3 The site is approximately 485 sq. m. The frontage to Carlotta Street is 10.6 m and to Bay Street 16.5 m. The subject site is within the Greenwich area and it is in the Residential 2A(2) zone under the Lane Cove Local Environmental Plan 1987.

4 The development is described in the statement of environmental effects and I quote: " The development involves the construction of a two level detached dual occupancy dwelling containing one bedroom and study on top of the existing garage roof slab. The upper level includes an extension to the north across the existing stairs linking that level to the adjoining open space. Construction of bridging parts to link each level of the proposal with open space on the site at equivalent levels. Construction of a rooftop terrace and garden access from the adjacent lawn at the rear of the existing dwelling and the floor space ratio of the existing semi on the subject site is some 0.72 to one. The proposed FSR with the additional dwelling, dual occupancy is 0.96 to one. The proposal provides for three car parking spaces which complies with council's requirements in terms of car parking so this is not an issue. The design philosophy was to improve the unsightly rock cutting that the existing garage is sited on with a modest studio apartment that sits above the footprint of the existing garage..."

5 The general area can be described as relatively steep sloping from Carlotta Street to the bay and the rear of the subject site is considerably lower than the street frontage to Carlotta Street. Bay Street also has steep winding topography and opposite the subject site is No. 10 and the waterfront reserve. The sailing club is at the end of Bay Street.

6 The properties No. 73, the subject site, through to No. 81 generally have an east-west orientation, that is their side boundaries as such. The properties 11 and onwards in Bay Street generally have an orientation of north-south. The properties opposite the site in Bay Street, Nos. 6 to 10 are waterfront dwelling houses and as I stated it is very steep topography.

7 The Lane Cove planning regime also includes development control plans. The Code for development application checklist for dwelling houses, fences et cetera is not a matter that formally the Court should take into consideration in the assessment of this application. However, I agree with Ms Laidlaw it does provide guidance as to the desired character of the residential areas. The general objectives of this are that: Dwellings be designed with regard to site conditions to minimise the impact on the landform and the dwelling designs have regard to the amenity of adjoining properties. A dwelling is not to exceed a height of 7 m or 9.5 m at the highest point and no dwelling will be permitted to exceed two storeys in height above natural ground level at any point. No dwelling will be permitted to have an elevation of more than three storeys and a third storey will be permitted if contained within the roof space...

8 As I said I have not formally assessed the application against the above and indeed I agree with the applicant's expert Mr Mike George that it is not a relevant matter for consideration. Similarly the residential zones development control plan is not a relevant document.

9 The focal point for the Court's consideration is the document 'dual occupancy development guidelines' that is Exhibit 4 in the proceedings. The setback provisions for front and rear street setbacks 7.5 m may be necessary to maintain the streetscape character. However, in some instances the streetscape character may include carports and these may be considered. Open space areas at the front of each dual occupancy development will not be accepted as private open space. The side setback is for the minimum setback to adjoining properties to be 3.5 with a minimum landscape strip along each boundary of 1 m. Other provisions are also included in the document.

10 The primary controls are those contained within the Local Environmental Plan and in particular there are three standards and it is agreed these are all standards capable of variation in terms of State Environmental Policy No.1. The plan provides for an FSR or 0.5 : 1 and the height standard is 3.6 (the proposed development is some 8.8m). The other control contained in the LEP for dual occupancy development is a minimum area requirement of 900 square metres.

11 The applicant contends that the proposal is satisfactory and that the circumstances present a unique opportunity and the proposed development would not have material adverse impacts on adjoining properties. The respondent on the other hand considers that the proposal is opportunistic.

12 It is noted that Dr Lamb on behalf of the applicant also gave evidence and he considers that the proposed dwelling will improve the appearance of the site and will be compatible within the existing context of the streetscape of Bay Street. He states:

"I do not consider that the proposed development will have any negative impact on the streetscape of Bay Street. I am also of the opinion that a casual viewer would be likely to find nothing unexpected in t he appearance of the development and indeed may very well find the outcome to be more appropriate than the existing character of the lower site which has the appearance of a site waiting for development."

13 Mr George similarly considers that the proposed development will improve the appearance of the currently unfinished construction of the garage. By way of background, not that it this in any way determinative of my decision, it is noted that there was an approval for the garage structure at the Bay Street entrance in approximately 1988 and construction commenced about 1989. The state of the site is such that the development is incomplete for example the driveway has not been sealed. In particular Mr George considers that the proposal will not impact on the adjoining surroundings and it will improve what is the current excavated scarring of the site.

14 Ms Laidlaw who provided evidence on behalf of the respondent agrees that the existing site conditions have a negative impact but of a different type. These negative impacts would not have arisen, at least not to the same extent, had the garage been constructed according to approved plans with greater attention to implementation of landscaping and the appropriate screening treatment of unsightly drainage pipes.

15 Mr George states that whether the proposal was built in accordance with the plan or as we see it today it is not material as irrespective the proposed development would represent an improvement to the existing structure on the subject site. There was considerable emphasis placed on the fact that this is an existing situation and the applicant contends that the proposed development, the erection of a two storey dwelling over the existing garages, will improve the appearance of the site. However, I am not persuaded by this argument and my assessment must have regard to the development as shown in the plans before the Court.

16 The Court met on site on the morning of the proceedings and heard from a number of resident objectors. In summary Mrs Fletcher of 10 Bay Street is concerned about the additional traffic, the narrowness of the street and the manoeuvring of vehicles in the street if the proposal is approved. She is also concerned about privacy into her dwelling, that is her upstairs study area and privacy in terms of the courtyard to the dwelling at the lower level. She considers that it is a vast overbuilding of the site.

17 Mrs Sally Crossing also gave evidence on behalf of No. 10 and considers that the proposed development would be a precedent and she agreed with the comments of the other persons representing No. 10. Her daughter, Miss Camilla Crossing also gave evidence and she stated the existing garage is ugly but there are no problems as is rarely used. She is concerned about privacy impacts in the courtyard at the front of the dwelling at No. 10 which is her main open space area. She considers that a separate Bay Street address would be like a subdivision.

18 Mr Fletcher also gave evidence for No. 10. He said the three storey building at 8.8 m plus a balustrade on the rooftop terrace is an inappropriate built form only three to 400 mm off the boundary and in his opinion the land is already half the size required for a dual occupancy and the floor space ratio is approximately double what is allowed.

19 On behalf of the Greenwich Community Progress Association Miss Pam Palmer and Mr John Gebler gave evidence. Miss Palmer is concerned that if the development is approved that the roof terrace should be deleted. She considers that the FSR, the height and privacy are all concerns and that there are many other similar blocks with similar topography in the Greenwich area and that this would be used as a precedent. In terms of the dwelling DCP two storeys is the guideline and then development is to be stepped in accordance with topography. Mr Gebler said that there is not much use having codes and requirements if the proposed development is approved in terms with its non compliances.

20 Mr Delhunty of 6 Bay Street is concerned about the traffic. He did state that the proposed development does not impact on him directly in terms of the built form but in terms of the street he did not consider it appropriate.

21 Mr and Mrs Harrison of 75 Carlotta were unable to give evidence to the Court however they provided a written statement and considered that the development which is equivalent to 10 m tall having regard to its height, having regard to the planter boxes and balustrading, this would be dominant when viewed from their middle and lower garden and it would also overshadow their garden. It would have an adverse visual impact on their property in terms of the side wall that they would be required to view. There would be a loss of privacy and they are also concerned about the noise potential of the roof garden.

22 At the site inspection amended shadow diagrams were provided that more clearly show the overshadowing impact and I am satisfied that while the impact is not of itself significant it is noted that there is some overshadowing of the adjoining garden of No. 75 that is a result of non-compliances.

23 In terms of the issues, the council considered that the non-compliance with the three development standards and the fact that the SEPP1 objections are not well founded are the main issues in the proceedings. Also the non compliance with the Lane Cove Dual Occupancy Development Guidelines in that the design prescriptive standard requires "a dual occupancy dwelling shall be of a modest scale and result in the second dwelling being smaller than the existing house". Another issue identified is the height requirement of 3.6 m and the fact the dwelling would not suit the streetscape and topography of the area.

24 Privacy is also raised as an issue although in my assessment in terms of the impacts on No. 10 I am satisfied, given the separation distances that privacy impacts would not of itself warrant refusal.

25 The issue of the minimum setback requirements to Bay Street is that the existing garage structure which is relied upon to then erect a building as described by Ms Laidlaw "three storeys in a line up from the ground level" is not conducive or compatible with the streetscape.

26 The council raised the issue of the impact on the Bay Street Reserve, which is an item of landscape significance, and that the proposed development would adversely impact.

27 The Court in its consideration of the application has had regard to council's controls and the evidence to the Court. As threshold questions I first turn to the SEPP 1 objections. Given this is a verbal judgment I will say at this point that I have concluded that the SEPP 1 objections are not well founded and the SEPP 1 objections should not be allowed in the circumstances of this case.

28 The applicant tendered a revised SEPP 1 objection having regard to the draft SEPP of 2004. I not this draft is still a relevant matter and I have considered the revised SEPP 1 in my assessment.

29 For SEPP 1 objections to vary the standards I must have regard to the underlying objectives or purpose of the standards. In my assessment the proposed development will present as a very bulky three storey building with minimal setback, 300 to 415 mm setback from the boundary of Bay Street and it will not be in character with the area. In terms of the character of the area this is a relevant consideration in terms of the SEPP 1 objections.

30 The SEPP 1 objections for the minimum lot size is contained in cl 9C(1)(b) and this is a minimum of 900 m sq. The subject site is 485 sq m. Mr George provides the purpose, or the underlying objectives, of the standard to include: o the development being consistent and compatible with the established residential character of the area; o the protection of residential amenity; and o to enable new buildings to be sited to maintain streetscape. In this regard he considers that the variation is justified and the proposed development would represent efficient use of the land and would comply with the object of the Act in terms of orderly and economic development.

31 I am not satisfied that the objection is well founded. The development in my assessment, having regard to the juxtaposition of the subject site and its relationship to other properties and the streetscape, is not compatible with the established residential character of the area. The properties 73 to 81 are generally read in Bay Street as the rear or back of the properties that front Carlotta Street, and whilst I do not subscribe to what Ms Laidlaw says in terms of presenting as rear gardens, the structures at the rear of those properties are ancillary structures to the dwelling houses, whether they be open air, covered structures for entertainment or a single storey studio which can be seen at eighty-three above a garage. The character in this section of Bay Street is read as the rear of the above premises and the street frontage of the waterfront properties opposite at 6 to 10 Bay Street. At this juncture the street then winds and provides frontages for the properties No's. 11 and on down to the boatshed. There is substantial redevelopment of these properties but they provide an appropriate 'fit' in the context of the streetscape in that they do not rise immediately three storeys at the street frontage boundary. Such a development would be out of character and unprecedented (although the latter is another issue and not a matter for the SEPP 1 consideration).

32 In summary I do not consider that the proposed development is consistent and compatible with the established residential character of the area and therefore the SEPP 1 objection to vary the minimum allotment size for a dual occupancy development is not well-founded in the circumstances of this case. Furthermore the proposed development will not enable the building to be sited to maintain the streetscape, also identified as an objective of the standard. This is a low density residential area and a building rising some 8.8 m plus a rooftop garden with planter and balustrade is not consistent with the character of the locality or the character of the area generally.

33 The SEPP 1 objection that the Court must also have regard to is the maximum floor space ratio contained in cl 9(d)(2) of the LEP. This provides for a maximum FSR of 0.5:1. Mr George identifies the underlying purpose or objectives of the standard as:

To restrict building bulk in single dwelling areas so that the addition of a second dwelling achieves a floor space ratio comparable to a large dwelling.

34 I am not satisfied that the proposed development rising three storeys from the streetscape is compatible and is an inappropriate bulk that is not sympathetic, but rather antipathetic, to the area. The proposed development is some 0.96:1 and while proposed new dwelling will provide a gross floor area of some 115 m sq this in itself is not large but its presentation to the streetscape is that it will present as a bulky building element of three storeys with a minimal setback to the street boundary.

35 The third SEPP 1 objection is to the height restriction standard contained in cl 9(E)(1) of the LEP for a dual occupancy development. The maximum building height for a second dwelling is 3.6 m from ground to ceiling level. For the underlying objectives Mr George identifies: the dwelling height should not unreasonably restrict sunlight to adjacent properties...; the dwelling height should suit the streetscape and topography of the area; and the dwelling should not significantly affect available views from adjoining dwellings. I agree that one and three of these objectives/purposes are generally satisfied, however, the proposed dwelling height certainly does not suit the streetscape or the topography of the area.

36 The controls also provide for a stepping of dwellings to reflect the topography of the area and a dwelling rising immediately behind the building line to three storeys plus is not in my assessment suited or in character with the streetscape and the topography of the area.

37 Returning to the SEPP 1 objections I am not satisfied these are well founded because the purpose or underlying objectives of the three standards are not met by the proposed development.

38 Mr George considers that the departure would be consistent with the aims and objectives of the LEP which are to permit new residential development where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.

39 I was persuaded by Ms Laidlaw's evidence that the proposed development is not in character and is not compatible with the character of the area and is not sympathetic or harmonious in terms of its relationship with adjoining development.

40 In terms of viewing the subject development from the reserve this is not an issue in my assessment that would warrant refusal of the development application. However when viewed from the public domain of the street and the properties at No. 10 and 75, the development is out of character with the surrounding area.

41 While the applicant may describe subject site and circumstances as unique, at the same time the Court must give 'real genuine and proper consideration' to the planning regime in assessing the development application. I do not agree with the applicant's position that the proposed development is justified because of the existence of the garage excavation and that the development should be approved on the basis that it would improve the streetscape because of the less than attractive half or three quarter built garage on the site today. In the spirit of 'neighbourliness' or good neighbours the garage has been under construction since 1989 and it does not require the approval of this development application to improve the amenity of the streetscape by the completion of the garage. The question as to whether it is currently constructed to what was approved or amended is not a matter for this Court.

42 Given that the SEPP 1 objections fail and should not be allowed it is not necessary for me to comprehensively address the other issues raised, however, I will provide brief comments in terms of established planning principles in this Court.

43 A number of planning principles were identified to the Court during the proceedings. In terms of Super Studio v Waverley [2004] NSW LEC 91 the senior commissioner said that: A principle is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of and necessity for the development that causes it. Whilst the overshadowing of the adjoining property at No. 75 in terms of part of their open space areas recognising they have much larger open areas than that would be impacted by the shadowing nonetheless it is unreasonable and in terms of certainty in the planning process and in terms of people's expectations of what could be expected as development there is an impact which is not necessary. 44 There is certainly a heightened sensitivity in terms of reasonableness for development that does not comply with the planning regime and standards. This is also articulated in the principle of Project Venture Developments v Pittwater [2005] NSW LEC 191 where the senior commissioner states that: "where compatibility between a building and its surroundings is desirable its two major aspects are physical impact and visual impact in order to test whether a proposal is compatible with its context certain questions need to be asked. One is is the proposal's appearance in harmony with the buildings around it and character of the street." 45 In this regard the SEPP 1 assessment overlaps with this principle as well and clearly the proposal is not in character with the streetscape and development in the vicinity.

46 In Pafburn v North Sydney Council [2005] NSW LEC 444 the senior commissioner provides criteria for assessing impact on neighbouring properties and one is how vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact? In this regard I do not consider the proposed site has the development potential to provide a second dwelling and it is an unrealistic expectation that a three storey development with limited setbacks be provided on the subject site.

47 In terms of Salanitro-Chafei v Ashfield Council [2005] NSW LEC 366 at paras 23-27 the senior commissioner considered the relationship between density and residential character. He posed the question of "whether there is an upper level of density above which it is hard to achieve compatibility with the character of a typical single dwelling areas and he answered the question by saying the upper level of density that is compatible with the character of typical single dwelling areas is around 0.5 to 1 however he concluded that a building with a higher FSR is not necessarily inappropriate in a suburban area but that once 0.5:1 is exceeded it requires high levels of design skill to make a building fit into its surroundings". Clearly the subject three storey building does not fit into its surroundings or the locality and character of the Greenwich area.

48 The issue of precedent is not determinative in this matter because the SEPP 1 objections fail but the issue of precedent is also an important consideration and this was articulated in the judgment of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 wherein His Honour stated that: "precedent is a relevant matter for consideration and when one looks at the proposed development I am of the opinion that this approval would be readily invoked by others that may seek to do the same thing by utilising minimum setbacks to both the side boundary and to the street and an in line development of three storeys within the area it is certainly antipathetic to the character of the area. While I do not rely on the issue of precedent it is a relevant matter to take into consideration."

49 It was submitted on behalf of the applicant that the approval of the garage excavation would not be approved today. That is not a matter for the Court as such but it is unreasonable to expect that there be an exacerbation of impacts by justifying or utilising the excavation to then erect a three storey building. And as I said the improvement to the amenity of the area or the streetscape is not dependent on the approval of this development application and this would be a most inappropriate way in which to assess future development applications.

50 Similarly with respect to Dr Lamb's comments "that the excavation is indicative of a site waiting to be developed" this is not a relevant consideration that would justify approval of the proposal. There is nothing to prevent the existing garage, or a modification of the approved garage, being completed.

51 Therefore on the basis of my assessment the formal orders of the Court are: 1. The appeal in respect of the property known as No. 73 Carlotta Street, Greenwich, is dismissed. 2. The objections to vary the standards under State Environmental Planning Policy No. 1 for the minimum lot size, floor space ratio and height are not allowed. 3. The development application No. D308/05, submitted to Lane Cove Council, for a 2 storey dwelling to be constructed above the existing garage is determined by the refusal of consent. 4. The exhibits are returned except Exhibit A, the plans.

              J S Murrell
              Commissioner of the Court
              Rjs/ljr

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