Garawin Pty Ltd v North Sydney Council

CASES CITED: Wehbe v Pittwater Council [2007] NSWLEC 827,

DATES OF HEARING: 9 &11 September 2008, and 2 October 2008

APPLICANT Dr S. Berveling, barrister Instructed by Hones La Hood LEGAL REPRESENTATIVES:

RESPONDENT Mr Staunton, barrister Instructed by Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10577 of 2008 Garawin Pty Ltd v North Sydney Council This determination was given extemporaneously and has been edited prior to publication.

JUDGMENT

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act against North Sydney Council's refusal of a development application for the erection of a duplex dwelling on the property known as 17 Levick Street Cremorne. The subject site is located on the northeastern side of Levick Street and has an area of about 490 square metres, a width of 22 metres and a similar depth.

2. The proposal is to demolish the existing two storey duplex building on the subject site and construct a dual occupancy development, each dwelling containing three bedrooms, to be strata titled. It is proposed to provide excavated basement car parking from the street at grade with a single width driveway to the parking for 4 vehicles, storage and lift lobbies for both dwellings. 1 The proposal is 2 m below the existing building on the site to be demolished and is forward of the existing dwelling house subject site and forward of No 19.

3. First of all I will describe the streetscape. Levick Street is somewhat varied as seen from the cadastral photograph. Dwellings on the opposite side of Levick Street have reduced setbacks, many with garage elements and high brick boundary fences to the streetscape. The road alignment forms an elbow/bend in front of the subject site that is considerably elevated from the road with an embankment.
4. The adjoining property at No 15 has a brick garage at street level and close to the side boundary of the subject site with a single storey element of a dwelling house behind. The setback of No 15 varies from the garage with a zero setback through to elements of the house that are some 4.5 metres from the street to 8 metres in places. The property at No 19 is currently undergoing alterations and additions and unlike other houses and built elements in the street the house at No 19 has a generous setback to the street frontage from 9 to 10 m, including the garage that is excavated at grade from the street.

5. Other dwellings in Levick Street on this side of the road, in particular those numbered 1 through to 9 are in close proximity to the street many with double garages directly to the street with little or no setback.

6. The area can generally be described as steeply sloping topography. The upper ridge behind the subject site, the land is considerably higher in elevation with the ridge of the two storey building behind significantly higher than the proposed development.

7. The Court had the advantage of a site inspection and heard from resident objectors, including Ms Stephanie Power of No. 19. She expressed concern about the loss of privacy to the master bedroom, second bedroom and balcony of her dwelling from the elevated north-western windows and balconies of the proposal. Concern was also expressed about the bulk and scale of the proposed building, its proximity to her home and the non-compliance with the building height plane that in her opinion will reduce her amenity. She was also concerned about the removal of significant trees and the substantial excavation. The open district views enjoyed from a balcony adjoining the master bedroom will also be impacted she said.
8. On the view the Court had the opportunity of inspecting the dwelling house at No 19. The applicant proposed that obscure glazing could be fitted to the window forward of her building line in response to Ms Power's concerns about privacy and overlooking. Similarly, the court had the opportunity of understanding the juxtaposition of the rear yard of the proposed dual occupancy and of No 19. With the proposed landscaping of lilli pillies that reach some two metres and a fence to a height of 1.8 metres it could be seen the concerns with respect to privacy and overlooking could be mitigated. It was also noted that the rear yard of the dwelling on the northeastern side will be at about the same level as the existing backyard.

9. Mr A Nixey, executive planner with North Sydney Council and on behalf of the applicant Mr J Lovell, consultant town planner, gave expert evidence to the Court.

10. The respondent provided a Statement of Facts and Contentions and the contentions are; a) That the proposed building is too large, being unsympathetic and inappropriate in terms of bulk size and scale with regard to the context of the site and character of the surrounding streetscape (particulars provided for contention). b) The proposed development comprises excessive excavation resulting in an unacceptable change in the natural landform and topography of the site (particulars of the relevant clauses provided). c) The development is prohibited in the absence of the SEPP 1 objection to landscaped area (this has now been provided).

11. The planning framework in which the Court must consider the development application was tendered. I will not cite verbatim all of the controls but it should be it noted that the Court has had regard to all the relevant planning provisions.
12. The North Sydney Local Environmental Plan 2001 contains specific aims and these include; o In relation to the character of the North Sydney neighbourhoods To promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk scale and appearance. o In relation to residential development the aim of the plan is to: 1. Protect and enhance the residential use and amenity of existing residential neighbourhoods and in new residential development. 2. Maintain and provide for an increase in dwelling stock where appropriate.
13. Consistency with the aims and objectives is required by clause 14:"consent shall not be granted if in the opinion of the consent authority the development is inconsistent with the specific aims of this plan and the objectives of the zone."

14. The subject site is zoned 2A(2) and the particular objective of relevance is: to maintain lower scale residential neighbourhoods of mainly detached and duplex housing.
15. The proposed development is defined as duplex housing and the explanatory note for duplexes is "two dwellings in the one building" and there are a number of specific clauses for duplexes in the LEP.

16. The provision in clause 16 is that - duplexes, being two dwellings which will have a similar appearance, bulk and scale to a detached house and which will assist in the retention of existing buildings, and - buildings which are compatible with their immediate context and - development that promotes the character of the neighbourhood.
17. Clause 17 relates to building heights and there is a specific objective for building heights with development generally limited to two storeys. A1 is to Promote development that conforms to and reflects natural landforms by stepping development on sloping land to follow the natural gradient.
18. The building height control under clause 17 subcl 3 is 8.5 metres.

19. The building height plane is contained in cl 18 and the specific objectives are to: "control the bulk and scale, provide separation and preservation of amenity.

20. In terms of building height performance criteria consent must not be granted under SEPP 1 if the building height plane would materially: Overshadow any existing or new property, reduce the level of privacy to an existing or new property, obstruct views, or obstruct daylight.
21. The landscaped area provisions are contained in cl 20 and one of the specific objectives is, To minimise site disturbance as well as provide useable private open space for the enjoyment of residents and provide a landscape buffer between adjoining properties.
22. For duplexes and dwelling houses cl 22 is specific. The objectives include: To achieve a form of building which appears as a dwelling house and achieve building forms that promote the character of the neighbourhood" and "Avoid excavation of sites for garages or car parking." Subclause 5 is that "A duplex must not be erected unless D. "Underground parking is not proposed.
23. For excavation of land, cl 39 states: A specific objective is to retain existing vegetation and allow for new substantial vegetation and trees, minimise adverse effects of excavation on neighbouring properties and minimise excavation site disturbance to retain natural landforms, natural rock faces, sandstone retaining walls and the like.
24. Excavation controls include that the development must not be carried out unless there are a number of the objectives considered.
25. I have conferred with Commissioner Taylor Court in our assessment and we make the following findings.

26. I should preface our findings by saying that during the course of the hearing amendments were proposed by the applicant, not objected to by the respondent, such that the undercroft area on the south-east corner of the building, did not present as a wall to the street or as a third level under the subject dwelling. In addition the excavation in respect of this portion of the site has been reduced, in particular plant room area, and the wall of the undercroft is set further back provide landscaping. The roof has also been reduced in bulk and height. The other amendment made is that one of the duplexes, that is the one on the south-east portion of the site has been stepped back to provide for articulation rather than a presentation of a seventeen metre wide flat face to the development.
27. The SEPP 1 objections are threshold questions therefore we will go to the SEPP 1 matters prior to the merits of the application. In this regard the Court was referred to the judgment of Wehbe v Pittwater Council [2007] NSWLEC 827, a decision of the Chief Judge of this Court in 21 December 2007. In this judgment his Honour sets out the various approaches to assessing SEPP 1 objections and in our assessment we have considered these principles.

28. The first variation that we must have regard to is the building height plane control contained in cl 18 of the LEP. The subject plans show the extent of the exceedence of the building height plan.

29. The amendment to the roof form is of particular importance in terms of the building height plane and also the impact on the adjoining property at No 19. The roof form is now significantly reduced and as such it no longer presents as the potential for a level in the roof. The effect is the proposed development steps up the hill to respect the topography with the dwelling unit on the southeast corner being higher than that on the north-west corner. In terms of the streetscape this respects not only the topography but also the height of developments in the streetscape.
30. Returning to the SEPP 1 objection for the building height plane of cl 18. As I stated earlier the objectives are to control the bulk and scale of buildings, provide separation between buildings and preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of overshadowing privacy, views, ventilation and solar access. The SEPP 1 policy allows for variations to standards and there is no dispute this a development standard.

31. The building height plane (BHP) as shown on the amended plans shows a reduced exceedence. It has also been agreed to between the planning experts that given the topography of the subject site that it is not unreasonable that there would be some breach of the BHP with development of the subject site.

32. The purpose or objectives of the control are contained in Clause 18 as follows: (a) control the bulk and scale of buildings, and (b) provide separation between buildings, and (c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of overshadowing, privacy, views, ventilation and solar access.
33. In considering the SEPP 1 we must also have regard to the other provisions of cl 18 of the LEP, in terms of 'material affect' on existing or new properties for matters of overshadowing, privacy, obstruction of views, daylight, or ventilation.

34. In our assessment with the amended plan the objective of bulk and scale of the building is satisfied and the proposal provides for separation between buildings with side setbacks of some two metres is compliant with council's controls and satisfies this objective.

35. In terms of the amenity of existing dwellings we are also satisfied that the building height plane exceedence will not impact on the amenity of: the adjoining buildings at No 19; the building at the rear or the dwelling at No 15. The proposal does not materially reduce: privacy; overshadow; obstruct views, or daylight.

36. We conclude the objectives of the standard are satisfied with the proposed development as amended and there will be no material impact. SEPP No 1 also requires that the objection is consistent with the aims and objectives of the Policy and refers to 5(a)(i) and (ii), the objects of the Environmental Planning and Assessment Act. That is the proper management and orderly and economic use and development of land, and in this regard the proposed development is satisfactory.
37. In terms of cl 8 of the SEPP, consistent with Wehbe v Pittwater Council [2007] NSWLEC 827 judgment, non-compliance with the standard in this instance does not raise any matter of State or regional significance or the public benefit of maintaining the planning controls. We are satisfied that there is no adverse impact or no undermining of same. Therefore the SEPP 1 objection for the building height plane is allowed in the circumstances of this case.

38. Moving to the second SEPP 1 objection that is to vary the landscaped area as contained in Clause 20. The control requires fifty per cent of landscaped area for developments. Landscaped area of a site means:

The part of the site that is generally at existing ground level that is not occupied at or above or below ground level by any building structure, swimming pool or hard surface tennis court or the like, and that is or proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any area set aside for the driveways and parking. 39. The proposal provides for thirty one per cent, in terms of the above definition of landscaped area. However, if the altered ground levels are included the landscaped area is some 52%. It is agreed between the experts that the proposed built upon area does not occupy more than fifty per cent of the subject site. The variation to the standard arises because the proposed landscaping is not all generally at existing ground level.

40. The objectives of the standard are set out in cl 20 as follows:

( a) promote the character of the neighbourhood, and (b) provide useable private open space, and (c) provide a landscaped buffer between adjoining properties, and (d) maximize retention and absorption of surface drainage water on site and (e) minimize obstruction to the underground flow of water and (f) promote substantial landscaping, including trees which grow to a height of 15 m and (g) control site density and (h) minimise site disturbance 41. Having regard to the above objectives in our consideration the landscaping proposed with the introduction of canopy trees in the front deep soil planting areas of the subject site and with the other landscaping proposed that the character of the area, which is marked by indigenous eucalypts as well as other vegetation, is satisfied.

42. In terms of objective (b) to provide useable private open space for the enjoyment of residents, the proposed development provides rear backyards, whilst only some five to six metres in depth these immediately adjoin the living areas and in our assessment this objective is satisfied. We note that the backyard for the dwelling on the south-east is excavated and in terms of the council's definition would not count as landscaped

43. In terms of objective (c) to provide a landscaped buffer between adjoining properties there is a two metre setback from the side boundaries where the building is located, and while this has limited landscaping because it provides entries and access to the dwellings, however, the overall landscaping of the subject site provides landscaped buffers between properties and this objective is satisfied.
44. For objectives (d) and (e) - to maximise retention and absorption of surface drainage water and minimise obstruction of the underground flow of water. While there will be a change to the flow and natural drainage because of the cut and fill and excavation this is not unreasonable and the objectives in the circumstances of this case are reasonably satisfied.

45. Objective (f) to promote substantial landscaping including trees is satisfied with the inclusion of canopy trees in the amended landscape plan.

46. For the objective (g) to control density once again the footprint of the built form does not exceed the requirement of the fifty per cent and it will have the effect of providing for a landscaped setting of the development. The new dual occupancy is to replace an existing dual occupancy.

47. In terms of objective (h) -minimise site disturbance. While there is disturbance to the site in terms of the excavation the front embankment is generally retained and in the circumstances of the case given the changes in topography site disturbance is reasonably minimised. Furthermore, the overall development in its presentation to the street will sit comfortably in the streetscape in a landscaped setting and overall the landscape objective is satisfied in our assessment.
48. Similarly in terms of the aim of the SEPP 1 the objects of the Act under section 5(a)(i) and (ii) are satisfied. In terms of cl 8 of the SEPP allowing this SEPP 1 objection raises no questions of State or regional planning and is not contrary to the public interest in the circumstances.

49. The third SEPP 1 objection relates to excavation. The parties agreed cl 22(5) (d) is a development standard and it states: A duplex must not be erected unless: underground parking is not proposed
50. Council is of the opinion that in terms of the merits the excavation for car parking is not unreasonable given that it provides parking, which is not as obtrusive as if at street level. Council however indicated that parking for only two vehicles would reduce the amount of excavation.

51. The general objectives of clause 22 are: o To achieve a form of development which appears as a dwelling house and o conserve heritage… o achieve building forms that promote the character of the neighbourhood, and o avoid excavation of sites for garages or car parking.
52. In our consideration the proposed development provides a form of development that has with the benefit of a single width driveway cutting to access the excavated basement parking to enhance the presentation of the overall built form to appear as a single dwelling house, albeit a large dwelling house.

53. The objective to conserve heritage is not relevant in this matter.

54. For the objective to achieve building forms to promote the character of the neighbourhood. The character of the neighbourhood has many garages on or near the street boundary, with the exception of No 15. The proposal promotes the character of the neighbourhood reading as a single dwelling in the streetscape that is achieved by the single driveway width and excavation to provide garaging. Garages doors facing the street at the boundary, would impact on the streetscape whether two or four, and would still require some excavation because of the steep topography.
55. For the objective to avoid excavation of sites for garages or car parking. The circumstances of this case are that excavation provides an improved outcome for dual occupancy development. In the words of Wehbe v Pittwater Council [2007] NSWLEC 827, it would be "equal to or better than." We are of the opinion the proposal would be "better than" garaging at the street boundary. In our opinion the objectives are satisfied.

56. In our assessment the three SEPP 1 objections in the circumstances of this case are well founded and should be allowed. The site is rather unique and the proposed variations to the three standards will not create any precedents for maintaining the planning controls and there are no matters of State or regional planning raised (clause 8 of the SEPP). In our assessment the variations allow a development that is "equal to or better than" a complying development. The aims of the Policy are also satisfied, for consistency with the objects of the Act. That is proper management, development…for the purpose of promoting the social and economic welfare of the community … and the promotion and co-ordination of the orderly and economic use and development of land.
57. The Court, being satisfied that SEPP 1s should be upheld, can now move to the merits of the application. The most significant difference between the parties is that of the front setback provision of the Development Control Plan 2002. For setbacks it states:" the characteristic pattern of setbacks and building orientation within the street is reinforced." i. "Front setback matches the alignment of the primary facades of adjoining buildings. Where different setbacks occur use the average of the setbacks of those primary facades. ii. Provide front, side and rear building setbacks that match those on adjoining properties or if adjoining properties are not characteristic with setbacks identified in the character statement."
58. The character statement provides for a front setback of three metres and the applicant's expert agreed that three metres would be an inadequate front setback. The question is, on the one hand the respondent's expert considered that the adjoining properties should be used in terms of an averaging of setbacks. As noted above the setback of number 19 is significantly greater than other properties in the streets and the setback of number 15 has a varied setback with a garage on the street boundary and then from the garage through to the face of the wall this varies from some 4.5 metres to 8.

59. The situation is that the side boundary setback adjoining No. 19 is currently very large as is the street to existing building setback. The contention is the impact of the proposed building on No.19 in terms of setbacks and in terms of the streetscape.
60. In our overall merits assessment we are satisfied that the setbacks of the proposal will not be unsympathetic or out of character in the streetscape and will not appear as an aberration. The task of averaging of the setbacks of the adjoining properties has little practical value in the circumstances of this case given the changes in topography in the streetscape and the garage on the street boundary at No 15, whilst not included in terms of council's setback controls, certainly provides a most visible built element.
61. As I have stated, number nineteen in many respects is the only dwelling in the streetscape that is significantly setback. However in our assessment it is not just the relationship with number nineteen, but we must have regard to the whole of the streetscape. The opposite side of the road is significantly lower and the built elements are generally closer to the boundary with the street, however even for the other dwellings further up the street on the same side as the subject site, that is one through to nine, it can be seen that there is a varied streetscape and these have very dominant elements close to or abutting the street.

62. The proposed development in our assessment is one that by providing for basement parking and the width of a single driveway to the basement parking provides for adequate landscaping of the development and deep soil planting, despite a reduced setback. It also provides for the retention of the existing embankment to the street and for the rock shelf in various parts to be retained and this will be visible in the streetscape.

63. The subject site is significantly elevated on the south eastern portion above the street and in our assessment a setback of 4.5 to 7 m for dwelling 2 is satisfactory. Dwelling 1 adjacent to No. 19 has a minimum front setback of 5.5.m. and this is also satisfactory in the context of the street and the elevate nature of the subject site.
64. The setbacks still provide for adequate landscaping and canopy trees above the existing embankment and the building will not be overwhelming in the streetscape or on its neighbours.

65. This is not a streetscape where there is a clearly defined prevailing setback of properties that would require an averaging and the framework clearly contemplates that where there is no prevailing setback that the setback can be a minimum of three metres. Once again the DCP is not mandatory for setbacks and a balancing exercise is required having regard to the streetscape generally as well as the relationship to adjoining properties.

66. We appreciate that people do not always embrace change and currently the existing building on the subject site has a most generous setback to the common boundary with No. 19 and to the street. As such No.19 has enjoyed a district outlook with no buildings from the verandah and the main bedroom. However we are satisfied that the impact on No. 19 is not unreasonable and will not create privacy or overlooking concerns. While the proposed built form may be visible from certain portions of the verandah, it will not be visible from inside the room and we are satisfied that it will not adversely impact on the adjoining property given the separation distances.
67. In many respects the merits of the application overlap with the SEPP 1 assessment of the development. With the amendments agreed to and now proposed by the applicant in the amended plans we are satisfied that the proposed development will not be an aberration in the streetscape and it will be sympathetic and sit comfortably in its landscaped setting.

68. We are also satisfied in terms of the aims and objectives of the council's LEP, that the proposed development will promote the character of the neighbourhood and is compatible in terms of its bulk scale and appearance and that it will maintain dwelling stock in the area.
69. The objectives of the zone in the LEP must also be addressed and these include to "maintain lower scale residential neighbourhoods of mainly detached and duplex housing" and in particular duplex housing "having the appearance of a single dwelling." We are satisfied the proposed development is not inconsistent with these provisions of the LEP.

70. On the issue of the amount of excavation, once again whilst the council indicated that excavation for two vehicles would require less excavation in terms of a quantum, we are satisfied that the additional excavation for four vehicles is not unreasonable in the circumstances of this case. It will not manifest itself in a bulky building presentation, it is very much concealed in terms of the streetscape and for that reason we do not require a reduction of the excavation to allow only two vehicles.

71. In our overall assessment we consider that the merits of the amended plans warrant approval and that the proposal will sit comfortably in its context.

72. Accordingly on the basis of our assessment, the formal orders are: 1) The appeal in respect of the property known as 17 Levick Street Cremorne is upheld. 2) The SEPP 1 objections to vary the standards in cll 18, 20 and 22 of the North Sydney LEP are allowed. 3) The exhibits are returned with the exception of 5, M, N, O and F. 4) The development application for demolition and erection of a dual occupancy as shown in the amended plans is granted consent subject to the conditions in Annexure "A".
73. The conditions are as generally agreed to between the parties with the addition of the condition requiring the reuse of the excavated sandstone to be reused, preferably on site.

          J S Murrell M P Taylor
          Commissioner of the Court Commissioner of the Court

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