Haughton v Lane Cove C

Land and Environment Court (NSW)|2005-08-05|Before: Stockland Development P, Mr J

Background. 1 This appeal is against council's refusal of a development application for alterations and additions to a partially completed dwelling at No. 86 Carlotta Street, Greenwich.

2 The site is described as Lot 2, DP 537 579 and has an area of approximately 230 sq m.

3 The proposal is for another building level to contain a master bedroom and ensuite having an additional area of approximately 22 sq m.

The Issues. 5 Issues identified from the appeal concern: + the bulk and scale of the proposal, in terms of its exceedence of the building height, storey control and FSR, + solar access, + loss of views and privacy, + public interest.

Planning Controls. 6 Lane Cove LEP 1987; under which the site is zoned residential 2(a2) and the proposal is permissible within the zone as ancillary development to a dwelling house.

7 Clause 9 of the LEP contains the zone objectives and development control table. The stated objectives for this residential A2 zone are: 1 Objectives of zone

The objective is to retain the existing residential amenity of detached single family dwelling areas. New dwelling houses or extensions of existing dwelling houses will be permitted only where they would not be highly visible when viewed from the Lane Cove River or Parramatta River. 8 Lane Cove Code and DA Checklist (Code). This policy is to be read in conjunction with the LEP and Residential Zones DCP. Its aims and objectives provide;

… 1.5 Act as a guide for the development of the "Statement of Environmental Effects" that is required to accompany each application, where a standard is not complied with, additional information supporting the requests for variation to policy is required. Applications that do not address proposed policy variations will be rejected .

This Code relevantly contains design guidelines for FSR, height, number of storeys , solar access and others.

The Evidence. 9 In addition to Mr Fleming's assessment, the written and oral evidence of a number of objectors has been considered.

10 Whilst a number of issues were identified, it is apparent that the threshold issue concerns the height, bulk and scale of the proposal, in the context of its creating an additional residential level.

11 The approved development has: + a garage at street level and stairs leading to a lower ground floor containing 3 bedrooms and bathrooms, with its floor level at RL 33.66, + above this is the upper ground floor containing kitchen, family, lounge room and laundry. Its floor level is RL 36.26,

12 The proposed designated new first floor is above the kitchen area and has a floor level of RL 39.36 and a ridge height of RL 42.21.

13 The height controls are contained in clause 3.3 of the Code and provide: 3.3 HEIGHT Objectives: a. Control the height, bulk and scale of new dwellings and additions to existing dwellings so that they are in harmony with the surrounding buildings. b. Minimise disruption to existing views or to achieve reasonable view sharing from adjacent developments with the height and bulk of the development.

c. Maintain reasonable solar access and minimise overshadowing of adjacent properties.

Standards 1. No dwelling is to exceed a height of: i. 7.0m to any point on the uppermost ceiling: ii. 9.5m to the highest point of the roof; above natural ground level/ Height shall be measured vertically from the natural ground level at any point. 2. Basement and subfloor areas are not to exceed 1.5 m above natural ground level.

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.

A third storey will be permitted if contained within the roof space. Where a dwelling would comply with the height requirement, except for the absence of a flat ceiling (e.g. raked ceiling), a variation will be considered provided the objectives are satisfied. (Mansard roofing is not considered as a room within a roof space and dormer windows are to be of a size to the satisfaction of Council).

14 The application of these controls is to be based on the definitions contained in cl 8, which relevantly provides:

(iii) NATURAL GROUND LEVEL Is the ground surface level prior to any cutting, filling and grading, and, where the existing ground level differs from the natural ground level, the natural ground level shall be as determined by council. (iv) STOREY i. the space between two floors; ii. the space between any floor and its ceiling or roof above; iii. foundation areas, garages, workshops, storerooms and the like, where the height between natural ground level at any point and the top of the floor above is 1.5 m or more. Note: for i and ii above, the space between two floors or between any floor and its ceiling above exceeding 5 m will be counted as two storeys.

15 Insofar as there was some debate about the actual number of storeys due to the differing opinions about the NGL of the original dwelling that was demolished, I am satisfied to accept as a reasonable Mr Fleming's reference point of the NGL for the ground floor level, based on his interpretation of the survey plan (Exhibit B), which shows the relative ground/or levels of the original dwelling .

16 Accordingly this results in the proposed dwelling being classified by Mr Fleming as 3-storey, based on the aforementioned controls. I understand from the submissions that this was conceded by the applicant's expert. On this basis, it does not comply with the s 3.3 Code "storey" provisions.

17 The other element of height controls concerns the maximum allowable height of the 7 m from the NGL to the uppermost ceiling. In this case there is a noncomplying element for the proposed upper level, which has a height of 8.1 m.

18 Another aspect of the bulk and scale issue concerns the proposed FSR. The Code allows from maximum FSR of 0.7: 1 and the proposal is for 0.84:1. The approved dwelling under construction has an FSR in the order of 0.75 : 1.

19 Mr Fleming acknowledges that the site area is relatively small and accordingly the resulting FSR exceedence is relatively minor. However he states that: 17. The FSR standard is a control of building bulk and scale. The impact of the proposed works significantly alters the roof shape of the dwelling in a way that departs from the approved shape referred to in Par. 85 of the earlier judgement. The effect of the design change is relatively minor in the context of the streetscape given the confined vista from the street into the site, but presents as a bland and unattractive facade treatment to the adjoining dwellings particularly at 88 Carlotta St and 147 Greenwich Rd. and having the effect of adding considerably to the bulk and presence of this building when viewed from those premises. To that extent the variation of the policy standard is not desirable .

20 As I stated initially, the impacts from the other issues of solar impact, view and privacy loss are relatively minor and when considered alone, probably would not result in the rejection of this proposal.

21 However there were a number objections raised to this proposal. Mrs Laubi-Zoppetti, occupies No. 147 Greenwich Road, whose back, north facing terrace and yard area looks onto the proposal. She is dissatisfied with exceedence of the FSR and additional storey because she considers it will result in an "unattractive and windowless box", which will detract from her visual amenity. She said that prior to purchasing her property some two years ago, she made inquiries and ascertained the details of the current 2-storey dwelling approval, which generally complied with the current controls. Her expectation is that the height control, restricting 3-storey development in the Code be maintained.

22 Mr Purnell owns No. 145 Greenwich Road, which also backs onto the subject property. He expressed concern about "development creep" if the 3 storey addition is allowed because it is contrary to the intent of the Code and objects to its approval.

23 Mr J. Gebler, representing that Greenwich Community Association provided a background to the current controls, which were amended to allow greater FSR, i.e. a maximum of 0.7:1 for the smaller lots, which was above the general maximum of 0.5:1 for the general residential zones. He considers the proposal presents as a 3-storey building and is inconsistent with the Code and therefore objects to it.

Conclusions. 24 Having considered the evidence, the submissions and undertaken a view, the determination of this matter involves an assessment of competing private interests against the public interest considerations.

25 The private interest involves greater amenity for the property owner in achieving additional floor space, which does not create significant external impacts. Whilst the Court appointed expert, Mr Fleming acknowledges this, nevertheless he does not support the proposal because he does not consider there has been adequate justification for the variation to the set of controls, as required by cl 1.5 of the Code. Instead he gives greater weight to the conclusions of Commissioner Nott in Appeal 10691 of 1999, who found that a 2-storey dwelling , with an FSR of approximately 0.67:1, was appropriate for the site. In the absence of any submitted change in circumstances, his opinion is that the proposal should be refused.

26 But in support of the proposal, Mr Hannaford submits that there are other large 3-dwellings under construction, which Council has approved, namely No. 12 George Street. and its neighbour. By reference to the reports supporting these developments, Mr Hannaford submission is that as Council has not consistently applied the provisions of the Code, then this application should be dealt with on a similar basis.

27 Having considered this submission, I do not consider it appropriate to give significant weight to the fact that Council has apparently exercised its discretion to allow departures from the Code. When this proposition was put to Mr Fleming, he said different circumstances applied to those sites identified, in terms of being in a different neighbourhood, site topography and a history of structural problems necessitating changes to original consents for those sites. Following cross-examination, he maintained his position that these other approved dwellings should not constitute a precedence, and therefore the current proposal should be refused.

28 Accordingly, I give little weight to the precedence submission caused by councils apparent departure from its Code and prefer to give determining weight to the merits of the application, relative to the prevailing planning controls.

29 Insofar as Mr Hannaford then makes submissions about the weight to be given to the Code, considering its controls are not embodied in an LEP or DCP, based on the principles outlined by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, nevertheless, this Code was only adopted in August 2002 and I consider its aims and objectives should be given considerable weight. Although I question why the usual planning approach of complementary DCPs and LEPs was not adopted.

30 Notwithstanding this, the intent of this Code is to limit the height, bulk and scale of residential dwellings in this area to 2-storeys. However, the subject proposal exceeds the storey control, the height control and has excessive floor space. Accordingly, my conclusion is that the cumulative effect of these exceedences represents an overdevelopment of the site and is not consistent with the type of dwelling envisaged by the controls. If an additional storey is required, the controls only allow it on the basis it is contained in the roof area. This proposal is fundamentally different to the allowable concept.

31 Furthermore, this overdevelopment would result in an additional residential level with a (main) flat roof, which is uncharacteristic of this particular neighbourhood and I accept the residents opinion that the proposed design is "boxlike", which in my opinion is relatively aesthetically unattractive. I do not consider it enhances the neighbourhood and consequently it detracts, rather than maintains the existing residential amenity of this residential area, which is inconsistent with the objectives of the zone.

32 I also think that due consideration should be given to the respective parties realistic expectations for the development of this property. The current dwelling received final consent by way of Orders in Appeal No. I0691 of the 1999. That appeal involved detailed assessment of the sites constraints and opportunities, whereby Commissioner Nott found that the development would be relatively large for the small site, " …even if the proposed third level was not considered. The removal of the third level, as required by councils conditions, will help to maintain the amenity of several neighbouring properties." 33 Even though that decision was made before the Code was adopted, the Code has now been formalised and relaxed the "standards " for smaller lots to allow an increased FSR of 0.7:1, which the approved application still exceeds. In my assessment this confirms the overdevelopment of the site and that the applicant's expectations are overly optimistic.

34 In summary then, I am satisfied that this proposal represents an overdevelopment the site and is not consistent with the type of (2-storey, maximum) dwelling envisaged in this area. Even though it apparently will not create significant amenity impacts, nevertheless I consider the public interest considerations of maintaining intent of the Code, outweigh the private interests in this case, resulting in the refusal of the application.

Development consent for DA No. 112/04, for upper level alterations and additions to a dwelling at No. 86 Carlotta Street, Greenwich is refused.

The exhibits may be returned except for exhibits 6 and A.

      R Hussey
      Commissioner of the Court
      ljr

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.

CITATION : Haughton v Lane Cove C [2005] NSWLEC 424

Stockland Development P/L v Manly Council [2004] NSWLEC 472; CASES CITED: William Haughton v Lane Cove Council - Appeal No. 10691 of 1999

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Judgment (44 paragraphs)

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Cases Cited (2)