Jim Saada & Anor v North Sydney Council

Land and Environment Court (NSW)|2017-02-09|Before: Mr J

JUDGMENT

These proceedings are an appeal under s.97 of the Environmental Planning and Assessment Act 1979 (The Act) against the refusal by North Sydney Council of development application DA numbered 219/2016/1 for a two storey rear addition and extension to the dwelling house at 4A Claude Avenue, Cremorne on lot B DP 157790.
The DA Site has an area of 413.4m2, a frontage to Claude Avenue of 15.24m and a depth of 27.125m, Claude Avenue is relatively steep and the DA site, whilst level from east to west has a cross fall from north to south of approximately 2m. Views towards the Sydney City Skyline, The Opera House and Harbour Bridge are available from some parts of the dwelling.
The DA as lodged proposed that the rear extension was to consist of a rumpus room and WC at ground floor and two bedrooms, a study and en-suite on the first floor. The existing setbacks, relevantly, would have reduced the existing side boundary to the North from 2.58m to 1.1m, and the rear boundary setback on both levels from 7.83m to 1.5m.
Following notification to adjoining properties ten submissions were received. On 2 February 2016 the council raised concerns regarding heritage conservation, view loss, visual privacy, rear setbacks and shadows. On 12 September 2016 amended plans were submitted which reduced the bulk, scale and building footprint and increased the rear setback. Revised shadow diagrams were requested. The revised building plans dated 28 August 2016 provided an area described as 'new room' of 26m2 at the ground floor and on the first floor, a new bedroom of 15m2. The northern side setback is shown as 1.55m with a rear setback of 3m at ground floor level and 5m at first floor level. Five submissions were received and on 5 October 2016 a staff assessment report recommended approval. On 5 October 2016 the four member Independent Planning Panel of the Council unanimously refused consent for the following reasons:

Statutory Controls

The relevant controls for present purposed are contained in North Sydney Local Environmental Plan 2013 (NSLEP) especially clauses 1.2 (aims) 2.3 (zone objectives and land use table) and 5.10 Heritage conservation; North Sydney Development Control Plan 2013 (the DCP) applies especially the provisions dealing with views, solar access, visual privacy, setbacks, development in the vicinity of heritage items and Cremorne Conservation Area.
The DA site is zoned A2 Residential under NSLEP. The proposal is permissible subject to development consent.

Evidence

The Council's bundle of documents contains, inter alia, all submissions made by objectors, a statement of environmental effects and an undated Heritage Impact Statement (HIS) prepared by Wisden Architects made at the request of the applicants. The DA site is at the centre of the Cremorne Conservation area (CA03) and the adjoining property to the north, 6 Claude Avenue as well as numbers 8, 10, 12 and 14 Claude Avenue are listed heritage items under the LEP.

Prior Development Application (2006)

On 29 January 2008 in the processing of the DA 370/06 for, inter alia, a rear addition to the dwelling, the Council resolved that amended plans be lodged detailing the reduction in size of the rear first floor bedroom 4 (at the NW corner of the then proposed extension) and that amended plans detailing the introduction of a splayed corner located on the first floor at the NW corner as detailed in a diagram numbered 2: see exhibit B, tab 19. The plans were amended by the applicant and the alterations were approved on 25 February 2008 on this basis and the work was to be carried out to reflect this recommendation.
Between the date of completion of the works and the present development application a dense planting of bamboo along the rear northern boundary of the DA site was introduced. It is planted in blockwork boundary planting beds and extends across the length of the whole of the bay window of the dining/sitting room on the ground floor of unit 1/6 Claude Avenue. As seen from inside that room, the views of the city skyline, opera house and harbour bridge have been almost completely obscured in the view corridor otherwise available from those windows. The suggested view corridor from the ground floor bay window in the dining/sitting room at unit 1/6 Claude Avenue otherwise extended across the sites of dwellings at Numbers 4 and 2 Claude Avenue and No 4A itself. Mr Brown, the consultant town planner for the Council, prepared a sketch (figure 1) in the Planners' Joint Report showing a line of sight running behind the rear of the houses on the DA site and numbers 4 and 2 Claude Avenue. The experts agree the present proposal would obliterate any significant sight lines to the agreed iconic elements of the skyline. It is clear that the Council has consistently since 2006 desired the preservation of these views. Mr Brown considered that the alignment of building setbacks shown in his figure 1 in the joint report are a more important planning consideration than the numerical rear set back relating to the rear boundaries of the allotments. On the other hand, Mr Lovell, the consultant town planner for the applicants, relied on the set-back provisions of the applicable planning instruments.

Rear setbacks/buildings lines:

The Planners discussed the issues of view loss in their joint report. They agreed that apartment 1/6 Claude Avenue occupies part of the heritage listed building (item No 10041)
Mr Lovell referred to part 1.4.6 of the North Sydney DCP 2013 which states that development should provide rear building setbacks that "match" those on adjoining properties, or if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement. Mr Lovell noted that there is no rear boundary setback control in the South Cremorne Planning area in the Cremorne conservation area. He notes that the site of No. 6 Claude Avenue extends past the rear boundary of the DA site. In fact the rear boundary of No 6 extends to Guthrie Street. He also notes that No. 4 Claude Avenue has a rear boundary setback of 3.9m and No 2 a setback of 3.5m.
Mr Brown noted that the proposal has a rear setback of 3m and cannot be said to "match" these adjoining and nearby rear setbacks. As the upper level of the proposal has a setback of 5 m it is adequate and can be regarded as uncharacteristically large.

Submissions:

Mr Seymour for the applicant noted that the only contention in the Statement of Contentions was "view loss", and that the council claimed that the proposal would not result in view sharing. He conceded that the proposed first floor of the rear addition would remove most of the view from the dining room of unit 1/6 Claude Avenue, but that the bamboo hedge had already removed the view to the city.
The relevant controls relating to visual impact and access to views are in section 1.3.6 of the North Sydney Development Control Plan (the DCP). This refers to the need to strike a balance between "facilitating new development while preserving, as far as practicable access to views from surrounding properties".
Mr Seymour referred particularly to the part of clause 1.3.6 which states: "when considering impacts on views, Council will generally not refuse a development that complies with the building envelope controls applying to the site"; Reference was also made to objective 02 which provides: "to encourage view sharing as a means of ensuring equitable access to views from dwellings recognising development may take place in accordance with the other provisions of the DCP & LEP"
He referred to the provisions of Principles P1 to P4 (maximise view sharing from surrounding properties; ensure dwellings have outlook onto trees and sky; and where a proposal is likely to adversely affect views from private land consideration will be given to the Court's Planning Principle for view sharing in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.

Compliance - Tenacity case Planning Principle

In paragraph 5 of Tenacity the Senior Commissioner noted that taking all of a view is not "view sharing", but that total removal can in some instance be reasonable: see also Goyer v Pengilly [2015] NSWLEC 54 (Pepper J) at [34]. In the present case the expert planners agreed that the proposed development fully complies with the applicable suite of planning controls in the LEP and the DCP including building height, site coverage, landscaped area, un-built upon area and side boundary setbacks. Their only disagreement is whether the proposed development complies with the rear boundary setback control in the DCP in clause 1.4.6 which states: P5 Provide rear building setbacks that match those on adjoining properties, or, if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement. The relevant character statements for the South Cremorne Planning Area, do not identify a rear boundary setback control.
The adjoining property setbacks to rear boundaries cannot be said to have a particular characteristic and the concept does not apply to No 6 Claude Avenue which has two street frontages to the south No 4 Claude Avenue has a rear boundary setback of 3.9m at ground and first floor levels. No 2 provides a rear boundary setback of 3.5m to both ground and first floor levels. The Council officer's assessment report concluded that the proposal complied with the DCP and that the setback proposed would maintain appropriate residential amenity for adjoining properties.
In response, Mr Brown appears to treat the rear building setback control as applicable on the basis that the proposed ground floor rear setback of 3m cannot be said to 'match' the adjoining rear setbacks and that there is a "technical non-compliance". In any case he notes that the upper level of the proposal (which is the subject of the view loss issue) is setback around 5m which is further than the adjoining buildings to the South. Notwithstanding this, Mr Brown's view corridor line behind the dwellings on numbers 2, 4 and 4A Guthrie Street are a rear building alignment (not a setback related to the rear boundaries) and is not based on any planning control. It can be seen only as a preference to keep open a sight line from the bay window in 1/6 Claude Avenue towards the South.
Ultimately, that preference is designed purely to avoid the bay window view loss and is not based on any specific DCP or LEP requirement and does not provide a ground of refusal of the DA.

Vegetation

Mr Seymour urged me to find that there is no view or outlook obtainable from the bay window in question because of the existence of the dense bamboo hedge adjacent to the northern boundary of No 4A. In assessing the DA I must take the development site as it exists at the time of the hearing. I am not exercising jurisdiction under the Tree (Disputes Between Neighbours) Act 2006, or concerned to determine the merits of the application that I am told has been made to the Court in other proceedings by the owner of unit 1/6 Claude Avenue under that Act and no submission has been made otherwise. My starting point therefore is that there is presently no actual view.

Heritage Matters

There is no doubt unit 1/6 Claude Avenue is part of an item of the Environmental Heritage of North Sydney/Cremorne. The parties took me to the Heritage Provisions of the LEP and DCP. The Heritage Impact Statement lodged by the applicant in support of the DA by definition is a "heritage management document" within clause 5.10(4) of the LEP. This provision is engaged by the DA because it is a DA for a consent in respect of the Heritage Conservation Area (HCA). There is no application for consent for development of any of the heritage items. I have considered the provisions and objectives of the heritage clauses in the LEP and the DCP (Part 13.4) and the effect of the proposed development on the heritage significance of the HCA concerned including any impact on the heritage item that might have had that effect.
However, there is no contention raising any heritage concern in the statement of facts and contentions or the Planners' Joint Report. Nor does the report of the Council's assessing officer or heritage officer raise such a concern. Also, there is no such concern expressed in the heritage management document (HIS).
I am satisfied that there will be no material effect on the heritage significance of the HCA. Refusal of the proposal on heritage conservation grounds is not warranted.

Alternative Designs

Mr Lovell's evidence, which I accept, was that there was no alternative design which would achieve the amenities required by the applicants in the proposal.

Views Generally

It is important to note that on the Court's inspection of the DA site and the objectors' properties, including the interior and exterior of unit 1/6 Claude Avenue, no significant view towards Sydney City was visible from the dining room bay window of the unit. Nevertheless, further to the west, the room in unit 1 designated as a sunroom and bedroom contained a set of three south facing adjoining windows from which wide views of the City buildings and skyline were available. These views were said to be likely to suffer only minor impact if the proposed development is carried out. Mr Brown stated that photograph 2 of that view in the Planner's Joint Report demonstrated that the existing boundary hedge of Lilli-Pilli on No 4A in the foreground provided privacy and maintained views from the sunroom.
In my opinion, given the present vegetation, unit 1/6 Claude Avenue has reasonable access to city views, at least from the sunroom.
Mr Pearce addressed the objections made by Mr Fernandez, Mr Mouat and Mr Daley, and Mr & Mrs Brislands (5 Guthrie Street). I heard a number of these objectors whilst on their properties on the view and I have considered their particular objections. I accept the position taken to these objections by the two town planners, namely that the issues raised had been addressed under contention 1 and are not otherwise determinative of the DA.
Mr Pearce also addressed the LEP and DCP provisions, including the R2 objectives of the low Density residential zone under the LEP, the heritage conservation objectives and provisions, the steps in the Tenacity Planning Principle and the statement of heritage significance of No 6 Claude Avenue. He conceded that there was limited heritage material in the evidence. He urged me to make an assessment of view loss by ignoring the bamboo hedge. He emphasised the extent of view loss to the bay window of 1/6 Claude Avenue.

Conclusion

I am satisfied that the proposed development is compliant with the planning controls for the site, that in terms of the Tenacity Planning Principle iconic view loss will occur with respect to the bay window in the dining room of 1/6 Claude Avenue, but not the large sunroom windows, and that this is a case where the view loss is reasonable in the circumstances.
Accordingly, I propose to grant conditional development consent for the proposed extension/alterations.

Orders

The Orders of the Court are as follows: 1. Development consent is granted for development application numbered 219/2016/1 for alterations and additions to the dwelling at 4A Claude Avenue, Cremorne on lot B DP 157790 subject to the conditions in Annexure "A". 2. The exhibits except exhibit 1 may be returned. .................. J Maston Acting Commissioner 307006.16 Maston (C) (295 KB, pdf)

Amendments 10 February 2017 - Conditions attached to Judgment 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. Decision last updated: 10 February 2017

At a glance

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Judgment (14 paragraphs)

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Cases Cited (2)