International Development & Construction Pty Ltd v North Sydney Council

North Sydney Local Environmental Plan 2001 LEGISLATION CITED: State Environmental Planning Policy No. 1, Development Standards State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development

Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46; CASES CITED: Hooker Corporation Pty Limited v Hornsby Shire Council; Tenacity Consulting Pty Limited v Warringah Council [2004] NSW LEC 140

APPLICANT Mr C McEwen, SC Instructed by: Mr N Velcic Of: Nikola Velcic & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, barrister Instructed by: Ms M Tregoning Of: Mallesons Stephen Jaques

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10348 of 2005 International Development and Construction Pty Ltd v North Sydney Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by North Sydney Council (the council) of a development application for an apartment building at 28 East Crescent Street, McMahons Point (the site). The site 2 The site has a frontage to Middle Street of 17.59 m and East Crescent Street of 17.98 m. Its northern side boundary has a length of 46.228 m and the southern side boundary is 50.813 m. The site falls approximately 7.5 m from Middle Street to East Crescent Street. 3 It is developed with a three storey apartment building, with 12 units, above a ground level car park for 10 cars and a raised podium. The existing building is red brick, with a pitched and tiled roof. Vehicle access to the site is off Middle Street. 4 The adjoining building to the north, 30 East Crescent Street, is a similar residential flat building. Immediately to the south, is 26 East Crescent Street, which is a four storey Edwardian style residential flat building, with a penthouse apartment. This building is identified as a heritage item by the council. Development further to the south consists of a group of smaller residential flat buildings of different periods. The opposite side of East Crescent Street is separated from the site by a split level road and development on the eastern side of the street consists of a mix of large houses and apartment buildings of varying forms. Development on the opposite side of Middle Street consists of predominantly 1 or 2 storey dwellings with frontages to Blues Point Road. Background 5 The development application was lodged on 23 December 2004 and was notified to adjoining residents. Twenty-seven objections were received. The applicant lodged an appeal against the deemed refusal of the application on 8 April 2005. Council considered an assessment report on the application on 16 May 2005 and resolved to defend the appeal. Council received amended plans on 27 July 2005, which were renotified to adjoining residents and 35 objections were received. The amended plans are subject of the appeal. The proposal 6 The proposal is to demolish the existing apartment building and construct a new apartment building with 11 apartments and 3 levels of basement car parking for 20 cars. The proposal would be 5 levels from Middle Street and 7 levels from East Crescent Street, with the top floor being set back from the floors below. Vehicular ingress would be off Middle Street with egress to East Crescent Street. 7 The height of the building proposed is RL 50.8 m to the top of the roof, with the lift motor room being about 1 m higher. The height to the floor level of the top floor is RL 47.95 m. Planning framework 8 The site is zoned Residential C in North Sydney Local Environmental Plan 2001 (LEP 2001). The proposal is permissible with consent. 9 The objectives of the zone are to "encourage the provision of a range of residential accommodation, including dwelling houses, duplexes, attached dwellings and apartments, in proximity to transport and other services". 10 The opposite side of Middle Street is zoned Residential B, which includes the objective to "maintain lower scale mixed residential neighbourhoods". 11 Clause 16 of LEP 2001 provides specific objectives of the residential zone controls, which relevantly include: ( a) …….. (iv) apartments, being a medium density form of housing set in a garden block, with underground parking and communal landscaped open space for the use of residents;

(b) amenity for residents of new and existing dwellings; and

(c) buildings which are compatible with their immediate context; and

(d) development that promotes the character of the neighbourhood, 12 Clause 14 requires that consent must not be granted to development that is inconsistent with the specific aims of the plan, objectives of the zone or objectives of the controls. 13 The relevant controls for residential development are cl 17 - Building height, cl 18 - Building height plane and cl 20 - Landscape area. The proposal does not comply with these controls and the applicant has submitted an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1). 14 Clause 50 provides for development in the vicinity of a heritage item and states: Clause 50. Development in the vicinity of heritage items (1) Development in vicinity objective The specific objective of the development in the vicinity of heritage items control is to ensure that development in the vicinity of a heritage item does not adversely affect the heritage significance of the item or its curtilage.

(2) Development in vicinity controls When determining a development application relating to land in the vicinity of a heritage item, the consent authority must consider the likely affect of the proposed development on the heritage significance of the item and its curtilage. 15 North Sydney Development Control Plan 2002 (DCP 2002) is also relevant. 16 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) establishes 10 design principals for residential flat development. Under SEPP 65, the Residential Flat Design Code (the Residential Code) must be considered. The evidence 17 For the applicant the Court heard expert evidence from Mr T Byrnes an architect and town planner, Mr S Davies a heritage consultant and Ms N Sonter a landscape designer. 18 For the council, Mr P Jeuken, a town planner and Ms L Varley a heritage planner provided evidence. In addition, the following residents provided evidence on site; Ms L Cox of 37 East Crescent Street, Mr and Mrs Collins of 85 Blues Point Road, Mr J Andrews of 41 Middle Street, Mr N Thomas of 9/26 East Crescent Street and on behalf of the Owners Corporation of 26 East Crescent Street, Mt J de Voogd of 5/26 East Crescent Street. 19 The concerns of the residents reflected the issues raised by the council in the Statement of Issues, with the additional concern that the exit for cars in East Crescent Street, would have adverse impact on traffic and result in the loss of on-street parking. Concern was also expressed about the extent of excavation and the impact on the fig tree in the south-east corner of the site. 20 Mr Thomas provided photomontages illustrating the view loss from his apartment and the adjoining communal roof terrace. The planning experts agree that these photomontages provided a generally accurate representation of the view loss from his property. Mr Thomas also presented display boards, which illustrated the existing and proposed developments and a development that complied with the controls in LEP 2001. The experts raised no issue as to the accuracy of this information. 21 Mr J Mills, the Court-appointed expert, provided an assessment of the shadow impact on 26 East Crescent Street. 22 Mr R Vaga for the applicant and Mt T Ahal for council provided a joint statement on traffic. The issues 23 The Statement of Issues included nine issues. The threshold issue in the case was whether the height, bulk and scale and landscaping of the proposal is compatible with the existing and desired future character of the area and whether the SEPP 1 objections are well founded. 24 The other key issue in the appeal is whether the proposal has an adverse impact on the adjoining heritage item at 26 East Crescent Street. The SEPP 1 objection 25 In Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 Lloyd J refers to the judgment of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, Land and Environment Court of NSW, Cripps J, 2 June 1986) as a classic statement of the approach to be taken when considering an objection under SEPP 1. This approach includes the requirement that the Court must assume a development standard in a planning instrument has a purpose. 26 Compliance with the standards in the height control and the building height plane of LEP 2001 would result in a development on the site that is significantly smaller than the existing building on the site and the adjoining buildings. The area is one where this disparity of scale is not uncommon, with detached dwellings interspersed with residential flat buildings. I assume that the controls reflect an intention that significantly smaller buildings may result from the implementation of these controls when compared to existing buildings in the area, but that the overall objective is to achieve "a compatibility with their immediate context" 27 Both Mr Byrnes and Mr Jeuken agree that strict compliance with the height and building height plane was unnecessary and unreasonable, given the circumstances of the case, particularly having regard to the existing building on the site and its immediate context. However, the experts disagreed on the extent of variation to the controls proposed by the development. The key difference between these experts is summarised in the joint statement as being that Mr Jeuken: considers that the proposed height and number of storeys of the proposed development are greater than that exhibited by adjoining developments, particularly on the East Crescent Street frontage. This degree of non-compliance, combined with the breaches of the building height plane control, limited side boundary setbacks and deficient landscape area, will result in a building exhibiting a massing, bulk and scale, that is significantly greater, more dominant and therefore, incompatible with development on adjoining land 28 Whereas Mr Byrnes stated that: The proposed building will be lower than the existing building at No. 26 and slightly higher than the existing building at No. 30, resulting in an appropriate transition and a height of only 1.5 m greater than the existing building on the site. It is taller than the other buildings only on the East Crescent frontage due to excavation. Actual height differences vary between 2 and 3 floors, but this is mitigated by at leas, as perceived by a reduction in one or two floors depending on whether viewed from East Crescent Street or from afar. From Middle Street, the buildings are compatible within height differences of one floor and non-compliant with the height measurement by 2 m. 29 The height, building height plane and landscape controls combine to achieve an overall bulk and scale for development. I will deal with each of these controls separately.

Building height plane 30 Clause 18 of LEP 2001 provides a building height plane, which commences at 3.5 m above existing ground level, on the north, south and east boundary and 1.8 m on the west boundary, as it adjoins a Residential B zone. 31 The extent of non-compliance with the building height plane was agreed between the parties. and Mr Byrnes submitted a SEPP 1 objection to show why strict compliance was unreasonable and unnecessary in this case. 32 Clause 18(5) of LEP 2001 provides that: Consent must not be granted, pursuant to State Environmental Planning Policy No. 1 - Development Standards , for the erection of a building, any part of which exceeds a building height plane set by this clause, if the building would materially: (a) overshadow any existing or new property or; (b) reduce the level of privacy to an existing or new property or; (c) obstruct views from any existing or new property or; (d) obstruct daylight or ventilation to any existing or new property. 33 Mr McEwen SC, for the applicant, submitted that the Court should adopt the meaning of materially as "of substance". I did not understand Mr Galasso, for the applicant, to oppose this meaning and on this basis I will adopt it for my assessment.

34 Mr Jeuken and Mr Byrnes agreed that privacy would be improved and that neither daylight nor ventilation would be obstructed. They also agreed on the extent of overshadowing, based on the shadow analysis prepared by Mr Mills. Mr Jeuken and Mr Byrnes held different opinions as to whether a proposal, that exceeds the building height plane, would materially overshadow or impact on the views of 26 East Crescent Street. 35 The loss of sunlight addressed by the experts relates only to the difference between the existing building and the proposed building and not to a complying development. The affected windows are two north facing bay windows to four levels of 26 East Crescent Street. These windows are secondary windows with the main window being to the east having water views. The experts agree that the large east facing windows would receive sun up to 10.30 am in mid-winter. 36 Unit 5 is most affected and would lose all its mid-winter sun to both bay windows; being a loss of 4 hours to one window and 5 hours to the other window. Units 7, 3 and 1 would also lose a significant amount of sunlight to the corresponding windows. The experts disagreed as to whether this impact was material. Mr Byrnes' opinion was that as the windows were small secondary windows and not to the main part of the living area. The loss of sunlight, which was numerically significant, was not material, particularly as the main part of the living area adjoined the east facing window and that the sun it currently receives was not affected by the proposal. Mr Jeuken held the contrary opinion. 37 In balancing the competing evidence, I accept that the impact on solar access received by the bay windows will be material. Although these windows are smaller and not the main part of the living area, they currently receive north facing sun for a considerable period of time, up to 5.5 hours. The east facing window loses its sun by 10.30am. As the only sun to the living area for most of the day is from the bay windows these units will experience considerable loss of amenity. In my view, the loss of this sunlight, which is caused by the breach to the building height plane, is a material impact and therefore consent to the SEPP 1 objection must not be granted and the application must fail. 38 Regardless of subcl 5, I also find that the non-compliance with the building height plane, does not meet the objectives of the standard, being: (a) control of 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 shadowing, privacy, views, ventilation and solar access. 39 I have already addressed the matters in objective (c), except for views. The breach of the building height plane will impact on the 360 degree views currently enjoyed from the living area of level 7 and the adjoining communal roof terrace. While considerable views will still be retained, in applying the principles espoused by Senior Commissioner Roseth, in Tenacity Consulting Pty Limited v Warringah Council [2004] NSW LEC 140, I find that the view loss is unreasonable, as it results from a breach of the controls. 40 In relation to objectives (a) and (b), the bulk and scale of the building, and the separation, are clearly beyond that contemplated by the controls. The increase in the width of the building results in a minimum side setback of 2.1 m to the north and south boundaries. This setback does not provide adequate separation for a building of this height, bulk and scale. The separation to the north reflects, in part, the existing setback from the boundary but is reliant on the greater setback of 30 East Crescent Street. The reduction in the setback to 26 East Crescent Street will be visible from limited viewing points in East Crescent Street. From these points and from distant views the proposal will appear wider than the existing building and will form a wall of buildings to the south. This provides inadequate separation and little opportunity for planting, other than screen shrubs. This form of vegetation will not have sufficient height or width to enable the proposal to appear as a building in a landscape setting, which is an overall objective of the controls for apartment buildings.

Height 41 The objectives of the height control in cl 18 of LEP 2001 relevantly include that apartment buildings in the Residential C zones should be three storeys. Other objectives include that development should respond to land form, promote gabbled and hipped roofs, view sharing and maintain solar access and privacy. 42 The height control in cl 18(5) specifies that apartment buildings in a Residential C zone must not exceed 12 m in height. Height is defined as: Height in relation to a building, means the greatest distance measured vertically from any point on the building to the existing ground level or the level of the lowest habitable floor, immediately below that point, whichever is the lower, excluding chimneys. 43 Mr Byrnes submitted a SEPP 1 objection to the height control. The SEPP 1 objection and Mr Byrnes' evidence is largely premised on the height of the proposal forming a transition with the height of the two adjoining buildings and thereby being similar to the characteristic building heights in the area. 44 However, the relevant objective for apartment buildings in the Residential 2(c) zone is that they are three storeys. I have addressed the other objectives, in relation to views and solar access in the previous paragraphs. The existing building and adjoining buildings exceed three storeys if the car level and podium are included. 45 While the experts agreed that strict compliance with the controls was unreasonable and unnecessary Mr Jeuken and Mr Byrnes differed on the question of height. Mr Byrnes concentrated on the overall measure of height to demonstrate compatibility with the immediate context, whereas Mr Jeuken considered that the additional levels at the base of the building, as well as the increased bulk and additional level at the top of the building, contributed to the perception of the height of the building from East Crescent Street. Mr Jeuken also considered that as the building setback from East Crescent Street is considerably less than 26 East Crescent Street this would accentuate the perception of height at street level. In his opinion the building will clearly be perceived as more than three storeys and as having more storeys than the adjoining buildings. 46 In my assessment, while the upper limit of the proposal is compatible with the height of the adjoining buildings, this would largely be perceived from distant areas. From the street, the height of the building would be perceived from the level of the building at ground level to the parapet or height of the street wall. From East Crescent Street, the building would read as six storeys with a height of 16.3 m. This compares to the height of 26 East Crescent Street of four storeys and the parapet height of 14.5 m and 30 East Crescent Street with a height of three storeys, above a car level and a podium and a height of 14.5 m. 47 Given this context, I accept that a variation to the 12 m control is appropriate but the proposal does not achieve the objective of a three storey building and that the extent of the variation to the number of storeys and the height limit to East Crescent Street is not justified or compatible with the existing context. I accept Mr Jeuken's opinion that while the upper dimensions of the proposal are similar to the adjoining buildings, it would appear higher due to the greater number of storeys, greater street wall height and lesser setback.

Landscaped area 48 Clause 20 of LEP 2001 requires a minimum landscape area of 58% of site area. The proposal provides 40%, which is similar to the landscaped area of the existing building. Mr Byrnes submitted a SEPP 1 objection to address the variation. 49 The quality of the proposed landscaping is clearly superior to the existing landscaping which consists largely of grass with limited trees or shrubs. Most of the existing site is covered with concrete to provide access and car spaces. Despite the poor quality of the existing landscaping there is considerable space, particularly to the south, between buildings and there is an opportunity to improve the existing landscaping and to reduce the area of hard surfaces. 50 In my view, the existing poor quality and amount of landscaping is not a reason to justify the non-compliance with the control. It is clear that the proposal does not meet the objectives of the landscape control, particularly the following objectives: (c) provide a landscaped buffer between adjoining properties, and (f) promote substantial landscaping, including trees, which will grow to a minimum height of 15 m, and. 51 The 2 m side separation between adjoining properties is insufficient to provide landscaping of a height and width that would achieve a buffer with a building of the height and scale proposed. The proposal retains one tree and provides one tree that can attain a height of 15 m. I find that compliance with this standard in not unreasonable or unnecessary in the circumstances of the case. Heritage 52 In relation to heritage, the key difference of opinion between the experts was whether the proposal would adversely affect the curtilage of the heritage item at 26 East Crescent Street. Mr Davies and Ms Varley held different opinions as to the curtilage of the building. Mr Davies considered it to be the lot boundary and Ms Varley, an extended or visual curtilage. 53 LEP 2001 defines curtilage as: curtilage means the area of land (including land covered by water), surrounding a heritage item, a conservation area or building work or place within a conservation area, which contributes to its heritage significance. 54 Therefore, to determine the curtilage it is first necessary to determine the heritage significance of the item. The significance of 26 East Crescent Street and other surrounding heritage items, is described in the East Crescent Street Group listing in the North Sydney Heritage Inventory Database as: Interesting and varied group of flat/apartment buildings from the early twentieth century which together produce an interesting and cohesive streetscape and which showcase a range of styles and forms of the period. They are intermingled with modern, generally tall, apartment blocks, which due to their size, tend to emphasise the human scale of the buildings in the group. Representative of the development trends of the period and have an important relationship with the nearby ferry wharf. 55 Mr Davies considered that the building was designed to be part of a group of flat buildings and it was not meant to be viewed individually or in the round. The design of the bay windows was evidence of the expectation that a building would be constructed in close proximity to its northern boundary. 56 Ms Varley stated that even if this was the case, the building had enjoyed separation for most of its life and today it exhibited a degree of prominence on the ridge line, particularly when reviewed from a distance. 57 I find that both these propositions have merit and they are not mutually exclusive. The building's significance is as part of a group of residential flat buildings and it may have been reasonable to expect a similar building to be constructed to its north. However, this did not occur and the building now has a landmark quality which should be respected by the extent of separation and the height, bulk and scale of any new development on the adjoining site.

Conclusion 58 The other issues in the Statement of Issues are not determinative and I have not addressed them in this judgment. 59 Overall, the existing building is considered by both parties to be a negative element in the streetscape and its redevelopment is supported. The building already exceeds the controls. The proposal, architecturally and individually, is an improvement but is larger than the existing building and increases the departure from the planning controls. 60 The proposal results in unacceptable impacts on the adjoining property to the south, which a complying development or even a development with a similar height and footprint to the existing building, would not generate. While some variation to the controls is justified given the immediate context of the site, the extent of the variation to the height, building height plane and landscape control do not achieve the objectives of these controls and the SEPP 1 objections are not well founded. Orders 61 For the above reasons, the Orders of the Court are: 1. The appeal is dismissed. 2. The development application for an apartment building, with 11 units and basement parking for 20 cars, at 28 East Crescent Street, is refused. 3. The exhibits may be returned. 4. No order as to costs.

                      Annelise Tuor
                      Commissioner of the Court

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