JOSEPH LAHOUD & ASSOCIATES PTY LTD v. NORTH SYDNEY COUNCIL [1998] NSWLEC 22 (26 February 1998)

Land and Environment Court (NSW)|1998-02-26|Before: Pearlman J, Mr P

The application of this clause is not without difficulty, but three things, at least, are tolerably clear. First, the council (and the Court on appeal, by virtue of s 39(2) of the Land and Environment Court Act, 1979) is required to form an opinion as to whether there has been an objection which is "well-founded". Secondly, an objection must be raised. Thirdly, that objection must be one which is raised by a person likely to be affected by the proposed development.

In my opinion, this last requirement imports a notion of direct effect. The clause is not invoked by an objection based on a general affectation, such as adverse impact on the conservation area or the general bulk or scale of the proposed development. There must be shown a direct effect upon the person who raises the objection. It is, for this reason, that I place no weight, so far as concerns cl 14A(1)(b), upon the objections expressed by the relevant precinct committee, because that committee is not, of course, directly affected by the proposed development.

The principal difficulty in the application of cl 14A(1)(b) arises in the interpretation of the term "well-founded". In the context of a statutory requirement that a refugee be a person who has "a well-founded fear of being persecuted", it has been held in immigration cases that the term requires an objective evaluation (Damouni and Anor v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 181; (1989) 87 ALR 97; Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 87 ALR 412). The same requirement should, by analogy, apply in this case. It is not sufficient that a person is subjectively of the opinion that he or she is likely to be affected; there must be an objective factual basis for the objection.

Moreover, the objection should disclose a real or material impact, and not one that is incidental or slight. This follows by analogy with the requirements of s 102 of the Environmental Planning and Assessment Act 1989 ("the EP&A Act"), which relevantly provides that a modification to a development consent can only be granted if the consent authority is satisfied that there will be no prejudice to any objector. It has been held that there must be a real or material prejudice which would found a refusal to modify a development consent (see Pearson and Anor v Leichhardt Municipal Council, Lloyd J, 18 March 1997, unreported).

According to Ms S Haertsch, who is a consultant planner formerly in the employ of the council and who gave evidence for the council, 17 objections were lodged, as well as an objection from the local precinct committee.

I put aside those objections that were based on the impact on the conservation area by reason of the proposed demolition of the existing dwellings and also those objections based on the bulk, scale and size of the proposed development. They are important objections to take into account for the purpose of considering whether development consent should be granted or refused (and I take them into account later), but, by reason of their lack of direct effect on the persons who raised them, they are not objections for the purpose of cl 14A(1)(b).

There were, however, objections concerning privacy and views.

As to privacy, I accept the evidence of Mr N Ingham, a consultant town planner called on behalf of the applicant, that the only potential privacy impact is in relation to the residential flat building at No 15 Morden Street. His evidence was that the orientation and design of the proposed buildings was away from No 15 and that there was an opportunity to mitigate any impact by vegetative screening. Accordingly, I conclude that the objections as to privacy are not of sufficient materiality for the purpose of cl 14A(1)(b) (although, of course, those objections are important in regard to the merit issues).

There were a number of objections based on loss of views. Mrs V Kingdom and Ms S Cho raised such objections in relation to the view from No 24 Morden Street, the residential flat building opposite the site in which they each live. They will suffer some impact upon their views because the proposed development is of greater size than the three existing dwellings, but they will still retain a view of the substantial trees which are to be retained on the site, and the trees which are on the golf course. I do not consider that their objections are of such materiality as to make them "well-founded" in the sense that I have outlined.

However, a more significant objection was raised by Mrs B L Ferguson. Mrs Ferguson lives in unit 4 on the second floor of 15 Morden Street, which is the residential flat building adjoining the site on its western side. She lodged an objection with the council, in which she stated that the proposed development would result in loss of her view. In giving oral evidence, she claimed that she had, at present, "beautiful views" from her balcony over the roofs of the buildings currently on the site to the golf course and trees.

According to the plans showing the elevations of the proposed buildings, the balcony of Mrs Ferguson's unit will be situated approximately at the same level of the eaves of that building. Instead of a relatively unimpeded view over the rooftops of the three existing dwellings to the high rise buildings in the distance to the east, and to the trees on and adjacent to the site, Mrs Ferguson, when using her balcony, will be faced with the roof of building B. Her view will not, however, be obliterated. She will still see the tops of trees, she will glimpse the golf course to the south, and she will see part of Morden Street and its adjacent streets to the north east.

In those circumstances, the Court is required to form an opinion as to whether the objection is "well-founded". That opinion must be formed in the planning context, that is, having regard to the planning controls which the LEP is designed to achieve.

One of the objectives of zone 2(c) is to permit a form of development which is compatible with the scale and character of the existing locality. The zoning permits development for the purpose of dwelling-houses without consent, whilst consent is required for development for the purpose of attached dwellings or residential flat buildings. However, development for the purpose of a residential flat building within zone 2(c) is, by reason of cl 14A, subject to a threshold test. If any of the three matters specified in that clause apply in a particular case, then the proposed residential flat building cannot be erected. The zoning contemplates, therefore, that development in that zone will be mixed - it will comprise dwelling-houses, attached dwellings, and residential flat buildings which are not otherwise barred by cl 14A.

In that context, a "well-founded" objection is one which would lead to an opinion that, because of the objection, a residential flat building ought not to be erected.

It is not a question of evaluating the objection in conjunction with an evaluation of all matters which are required to be taken into account under s 90(1) of the EP&A Act, and concluding that the objection is "well-founded", if it would, apart from cl 14A(1)(b), justify refusal of consent. Rather, it is a matter of asking whether the amenity of the person who raised the objection is impacted in such a way that the residential flat building ought not to be built at all.

Similarly, the Court is not required to evaluate the objection by comparison with what might otherwise be developed on the site. Mr Tobias QC, who appeared for the applicant, endeavoured to show, by reference to a cross section prepared by Mr J V Lahoud (who controls the applicant company, but is also an architect), that Mrs Ferguson's loss of view would be substantially the same whether the development as proposed was constructed or whether the site was developed by the erection of a two-storey townhouse. In the absence of a specific proposal for some other type of development, it is impossible to determine what impact that other type of development might have on Mrs Ferguson's view. Such impact would depend, for example, on the size of development and articulation of the attached dwellings.

It is, as I have said, necessary for the Court to form an opinion as to whether Mrs Ferguson's objection is "well-founded" in the sense that it will invoke the prohibition and thus prevent the residential flat buildings being erected on the site. The Court could not form that opinion. Although Mrs Ferguson's objection is based on objective fact, and the impact which it raises is real and material, it is not an objection which would, in a planning context, require a conclusion that the residential flat building should not be built at all. Her view will be impeded, but it will not be obliterated. What she will lose is a distant view of high rise buildings and a closer view of trees. She will retain a view of the golf course to the south and a view of Morden Street and its surrounds to the north and north east.

I conclude, for these reasons, that no "well-founded" objection has been raised, and the proposed development is permissible.

Clause cl 14A(1)(c) of the LEP provides as follows:

"A residential flat building shall not be erected on land in Zone 2(c) if:

(c) attached dwellings could reasonably be erected on the site in a manner which would enable the occupants of those dwellings to enjoy reasonable sunshine and privacy."

In cl 5 of the LEP the term "attached dwellings" is defined to mean:

"... a building on a single allotment containing two or more dwellings, each dwelling having an individual entrance and access to a courtyard at natural ground level, being a dwelling no part of which is superimposed on any part of another dwelling (except parking spaces) and includes dwellings in a row of 2 or more dwellings attached to each other such as are commonly known as townhouses."

Once again, it is necessary to examine cl 14A(1)(c) with some care in order to determine if it applies to prohibit the proposed development.

In this connection, I accept Mr Tobias' submission that the Court should note the fact that the word "reasonable" appears twice in cl 14A(1)(c). In my opinion, the proper interpretation of the clause is that, to fall within it, two requirements must be met - attached dwellings could reasonably be erected, and, secondly, the erection of attached dwellings could occur in such a way as to allow the enjoyment of reasonable sunshine and privacy.

Whether those two criteria could be met requires a consideration of the physical features of the surrounding development and the physical constraints of the site itself. It is also appropriate to take into account the zoning of the site and the relevant development controls applicable to the development of attached dwellings on that site. Economic viability is not, however, an appropriate consideration, in a planning or environmental context, in determining whether attached dwellings could reasonably be erected (see P D Mayoh Pty Ltd v North Sydney Council, Lloyd J, 7 October 1997, unreported).

Professor G P Webber, who is presently professor of architecture at the University of Sydney, gave evidence for the council. His opinion was that attached dwellings could reasonably be erected on the site "to adequately both satisfy the requirements ... for `reasonable sunshine and privacy' and provide a high standard of amenity in other respects in this very attractive residential area". To support this opinion, Professor Webber prepared three schematic design options. The first option contemplated the retention of No 2 Warringa Road and No 4 Morden Street and the erection of five townhouses. The second option contemplated the retention of only No 2 Warringa Road and the erection of seven townhouses. The third option contemplated the demolition of all three existing dwellings and the erection of 11 townhouses.

In giving oral evidence, Professor Webber acknowledged that there would be some potential overlooking of some of the courtyards of the townhouses contemplated by all three of his options by the occupants of the residential flat building at No 15 Morden Street, but he asserted that this privacy impact could be dealt with by careful design or privacy screening. He also conceded that any townhouses erected along the boundary of the site with the golf course would have limited sunshine. Nonetheless, his opinion was that the criteria set out in cl 14A(1)(c) would be adequately met.

Professor Webber's opinion was supported by Ms Haertsch.

Mr Ingham was of the opinion that attached dwellings could not reasonably be erected because the site would permit no more than eight townhouses, and accordingly would be a "significant underutilisation of an important resource". I put this opinion aside as irrelevant since it is based on economic grounds (P D Mayoh Pty Ltd v North Sydney Council). However, I take into account Mr Ingham's opinion that townhouses on the site would be overlooked by the residential flat buildings on the opposite side of Morden Street, and by the residential flat building at No 15 Morden Street. Any screening designed to eliminate that overlooking in courtyards facing Morden Street would, in Mr Ingham's opinion, unreasonably impact upon the streetscape and, furthermore, courtyards to the south would be overlooked by the townhouses themselves.

Mr A D Smith, a town planner of Byrnes & Associates, also gave evidence for the applicant. He noted features of the site which in his opinion make it inappropriate for townhouse development. Those features were the disposition and slope of the site, the bulk, scale, height and proximity of No 15 Morden Street, the location and orientation of the residential flat buildings in Morden Street opposite the site, and the grove of trees and the ridge on the adjoining golf course.

Professor Webber's schematic designs were strongly criticised by Mr Ingham, Mr Smith and Mr Lahoud. Each of these three experts pointed out that a development in accordance with any of those designs would fail to meet relevant planning controls relating to courtyard size, setbacks and building height planes, and that most of the courtyards contemplated by each of those designs would suffer serious privacy impacts as a consequence of all three neighbouring residential flat buildings as well as depletion of sunshine at certain times and at certain periods.

I do not place any weight on the fact that attached dwellings are encouraged in zone 2(c) by virtue of the concessions that type of development enjoys under the LEP, such as a requirement for less landscaped area than is required for residential flat buildings. I do, however, take into account the fact that there are development controls that regulate such matters as courtyard size, setback and building height planes, in the interest of amenity.

I conclude that the potential for loss of privacy and sunshine arising from the three existing residential flat buildings in Morden Street make it likely that attached dwellings could not be erected upon the site in a manner which would enable the occupants of those dwellings to enjoy reasonable sunshine and privacy. I also conclude that the necessity to endeavour to provide reasonable sunshine and privacy for those occupants whilst at the same time substantially complying with appropriate development controls is such, that attached dwellings could not reasonably be erected on the site.

I am satisfied, therefore, that the matters specified in cl 14A(1)(c) of the LEP do not apply, and accordingly the proposed development would not be prohibited.

The site, as I have said, falls within the Cammeray Conservation Area, but none of the three existing houses are specifically nominated as heritage items under the LEP. Accordingly, those provisions of the LEP which relate to conservation areas are the provisions which must be taken into account. They appear in pt 4 of the LEP.

The relevant provisions of Development Control Plan No 1 dated 10 January 1991("DCP 1") must also be taken into account.

The council tendered a draft local environmental plan which, amongst other things, will amend pt 4, but there was no evidence as to its current status. In particular, there was no evidence that the draft had been placed on exhibition. Similarly, the council tendered draft amendments to DCP 1, but, once again, there was no evidence as to the status of those amendments. Accordingly, I do not place any weight upon these drafts, but I should say, from my examination of their contents, that the evidence which was adduced in relation to the conservation issue was sufficient, at least by implication, to address the conservation matters which are raised by these drafts and to this extent they have been taken into account.

Part 4 of the LEP is headed "Heritage Provisions" and cl 35 sets out the aims and objectives of the LEP, so far as the LEP "relates to conservation". Included amongst those aims and objectives are the following:

"(a) to control the demolition of heritage items and buildings and works within conservation areas and to develop guidelines to ensure that any alterations and additions to heritage items and buildings and works within conservation areas are in scale and character;

(c) to ensure that new developments in conservation areas are designed taking account of the surrounding scale and character of development;"

The provisions governing conservation areas are found in s 39 of the LEP, which relevantly provides as follows:

"39 (1) A person shall not, in respect of a conservation area -

(a) demolish or alter a building or work within the area;

(d) erect a building on or subdivide land within the area;

(2) The Council shall not consent to an application under subclause (1) unless it has taken into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the conservation area.

(3) An applicant for consent under this clause may be required to satisfy the Council as to the following matters:

(a) in the case of a proposed building or work- the general form of the building and roof in relation to existing development in the vicinity of the conservation area;

(b) in the case of a proposed building or work- the style, size, proportion and the position of the openings for doors and windows;

(c) in the case of a proposed building or work- whether the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are compatible with the materials used in the existing buildings on the site and in the conservation area;"

DCP 1 provides that applications for demolition of buildings within conservation areas will only be considered in conjunction with a development application for proposed development (cl 50(1)(b), and "any new building to be erected in replacement shall reflect and re-inforce the predominant architectural style of the locality" (cl 50(4).

The council tendered four specific documents to which some reference must be made. None of these documents are determinative of the issue, for reasons which I shall explain in relation to each (except the last) of them, and I take them into account in assessing the conservation impacts of the proposed development.

There was, first, a document relating to "heritage conservation areas" in North Sydney. The term "heritage conservation area" is a term which appears, not in the LEP, but in the draft local environmental plan, and since the document is dated May 1997, I presume it relates to the provisions of the draft. It is useful to note its description of the heritage significance of Cammeray. It states that the "Cammeray Heritage Conservation Area" is significant "as a cohesive and largely intact residential area" and it contains significant groupings of "single storey, free standing, Federation style face brick residences in wide tree lined streets."

The second document is entitled "North Sydney Heritage Study Review 1993 Report" which was prepared by Ms Libby Maher. The document has no formal planning status and Ms Maher was not called as an expert witness. Nonetheless, some of her comments are relevant and should be noted. At p 14, she said:

The significance of an individual house must be considered in relation to the whole of the precinct. If that significance is considered to be positive then the heritage protection controls should always be upheld ...

Special consideration must be given to prominently positioned housing whether it be dominating a corner or an elevation or viewpoint. Corner housing must regard the patterning of side and rear neighbours, both in footprint and massing ..."

The next document was tendered as part of extracts from the council file. It is a report headed "Conservation Comments" made by Mr E Shepherd, the council's conservation planner. Mr Shepherd was not called to give expert evidence, and the weight placed on his comments must therefore be slight. Mr Shepherd's opinion was that the houses at Nos 2 and 4 Warringa Road make a "considerable contribution" to the Cammeray Conservation Area, and that the proposed development does not respond to its context and will not reinforce the character of the streetscape.

Lastly, the council tendered a copy of a letter dated 17 August 1995 from the National Trust to the council relating to an earlier proposal to demolish No 4 Warringa Road, and signifying its opposition to that demolition on conservation grounds. I place no weight upon this document; it relates to a different proposal and it does not constitute evidence as to the current point of view of the National Trust.

Professor Webber dealt with the conservation issue. His opinion was that Nos 2 and 4 Warringa Road should be retained by reason of their Federation style and their contribution to the streetscape and to the character of the conservation area.

He also concluded that the proposed development does not satisfy the requirements in pt 4 of the LEP. In terms of the placement of the three existing dwellings within the streetscape, Professor Webber observed that it was wrong to see them only in the context of the three residential flat buildings in their immediate vicinity. Instead the three residential flat buildings should be seen as "highly intrusive elements" in an otherwise fairly intact environment. Professor Webber further stated that from certain viewing angles the single storey scale of Federation period housing is dominant in the area. It was Professor Webber's opinion that the reference to "scale and character" in cl 35(c) could not in the present context refer to the scale and character of the surrounding residential flat buildings, but instead refers to the general character of both the site and the conservation area generally. It was Professor Webber's contention that any new development should "at least maintain the predominant single and two storey heights for dwellings, and ensure that architectural forms and details are sympathetic to the character of the Conservation Area".

Evidence supporting the proposed development was given on behalf of the applicant by two heritage architects, Miss J M Hill and Mr R M Staas.

Miss Hill's conclusion was, first, that the three existing dwellings do not form a major contribution to the Cammeray Conservation Area, and secondly, that the development which is proposed to replace them forms a "positive contribution to the area particularly the corner site".

In giving oral evidence, Miss Hill amplified these conclusions and explained her methodology. According to Miss Hill it is necessary, first, to establish the key character of the conservation area. In her opinion, that is constituted by Federation face brick houses of medium size with deep landscaped gardens. The next step is to evaluate the conservation area in terms of the contribution of the houses in the area to that key character by considering to what extent they are intact in relation to that key character. That is, it is necessary to evaluate the integrity of their form, the integrity of their finish, and whether there are detracting developments and detracting building alterations in the area. She carried out an assessment of Morden Street, Warringa Road and some adjoining streets adopting this method.

Her opinion was that the demolition of the three existing dwellings would not affect the significance of the conservation area based on the following conclusions:

* the conservation area is least intact at its edge in the vicinity of Morden Street and Warringa Road;

* Morden Street, compared to other adjacent streets, is the least intact because relatively few of the houses in that street are intact in comparison to those that are detracting;

* Furthermore, Morden Street is marginal so far as concerns the conservation value of the area, because it was originally part of a larger and regular grid which has been eroded by the Warringah Expressway;

* Its conservation value is also eroded by the three residential flat buildings. Those residential flat buildings also add an isolating character to the immediate area because they detract from any continuous row of Federation style houses;

* In that context, the three existing dwellings do not contribute to the conservation area in such a way that they should be preserved. No 19 Morden Street is not a Federation style house; it is rather an "inter-war bungalow" style house and has undergone considerable alteration. Its contribution is neutral. No 2 Warringa Road is a Federation house and retains some original features, but it is not intact, and its setback behind No 4 and its dense landscaping makes its contribution neutral. No 4 Warringa Road also makes a neutral contribution, because it is not intact, and its prominence in the streetscape is a result only of its light colour paint and prominent timber picket fence.

Miss Hill also proffered the opinion that the form and scale of the proposed buildings was in keeping with the character of the area. She pointed to the fact that although what is proposed is actually two buildings, they will be seen as three buildings by reason of their articulation. The buildings are stepped down towards Warringa Road, and this stepping and articulation has the effect of reducing their bulk and scale. In this sense, according to Miss Hill, the proposed development will act as a mediation between the residential flat buildings and the Federation houses further along Warringa Road.

Mr Staas corroborated Miss Hill's evidence. In giving oral evidence, he explained that, in his opinion, a building contributing to the conservation area is one which is substantially intact in its original form, a neutral building is one that has been altered, for example, by painting, and a detracting building is one which is "distracting" from the streetscape. He assessed No 19 Morden Street as being a neutral building, almost intrusive in its present form; No 2 Warringa Road as being neutral; and No 4 Warringa Road as being more prominent in the streetscape but not in an intact condition. In his opinion, the preservation of all three existing dwellings is not necessary to maintain the character of the streetscape and the conservation area considered as a whole.

As to the proposed buildings on the site, Mr Staas regarded them as providing a positive contribution to the area because they would be "transitional", having regard to the bulky residential flat building in Morden Street. That is achieved by both the breaking up of the form of the proposed buildings, and providing a rising progression of terracotta roofing.

I find the evidence of the applicant's experts to be compelling, and I draw a number of conclusions from this evidence. First, the site is within a part of the conservation area that is of marginal conservation value. Secondly, the demolition of No 2 Warringa Road and No 19 Morden Street will have no material effect on the heritage significance of the conservation area. Thirdly, however, the demolition of No 4 Warringa Road is of more significance because it is a more prominent Federation building, but it is not intact and its removal is not critical to the conservation area considered as a whole. Fourthly, the expert opinion is that the proposed development will fit sympathetically with its environment.

For those reasons, development consent should not be refused on account of the implications relevant to the site arising from the Cammeray Conservation Area.

"13 (1) Subject to subclause (2), a building shall not be erected on a site in Zone No ... 2(c) ... where any part of the building will exceed a building height plane projected at any point from any boundary of the site.

(2) A building may be erected which does not comply with the building

(a) will not materially increase the overshadowing of adjoining properties;

(b) will not materially reduce the level of privacy enjoyed by adjoining properties;

(d) will not materially reduce the level of daylight and ventilation to existing development,

and no well founded objection is raised to the proposed building."

"Building height plane" is defined in cl 5 of the LEP to mean:

"a plane projected at an angle of 45 degrees over a site commencing 1.8 metres above natural ground level along a boundary of the site or along any other line or boundary specified in this plan for the purpose of establishing a building height plane."

The statement of environmental effects which accompanied the applicant's development application disclosed non-compliance with the building height plane requirement in several respects. However, the precise extent of non-compliance is in some doubt, although the range appears to be between 1.8m and 3.5m. But it is not the precise calculation which is important; it is whether, despite that non-compliance, the buildings will not result in the effects contemplated by cl 13(2) of the LEP. I deal with each of those matters in turn.

Mr Smith's evidence was that no shadow from the proposed buildings would impact upon the living amenity of any of the occupants of No 15 Morden Street, and any shadow cast by the proposed buildings over the golf course and Warringa Road will not be significant, nor have any adverse impact upon the use or amenity of those areas, particularly in view of the existing shadowing from the grove of trees in this location.

Neither Ms Haertsch nor Professor Webber were concerned specifically with any problem of overshadowing.

According to Mr Smith and Mr Ingham, the only potential problem so far as regards privacy is the potential of the proposed buildings to overlook the residential flat building at No 15 Morden Street.

In Mr Smith's opinion, there will be no material impact upon privacy because of three factors, namely, the overall separation between the proposed buildings and No 15 Morden Street (9.4 metres), the staggered floor levels between them, and the absence of balconies on the western elevation which directly face the eastern elevation of No 15 Morden Street.

Mr Ingham corroborated Mr Smith's opinion, but noted that there may be a potential for the windows and balconies in the southern part of the western elevation of the proposed buildings to overlook the rear open space area of the adjoining building. He stated, however, that there was an opportunity for vegetative screening in this regard.

Neither Ms Haertsch nor Professor Webber addressed this matter specifically.

Mr Smith's opinion was that there would be no material impact on views enjoyed by any adjoining development. In his opinion, views to the east from all three existing residential flat buildings are already considerably restricted. As Mr Ingham pointed out, this restriction occurs as a result of the existing vegetation both on the site and on the golf course and as a result of the steep rise of the golf course from the southern boundary of the site.

The potential for material impact is, once again, from the western elevation of the proposed buildings upon the residential flat building at No 15 Morden Street, and in particular, in relation to Mrs Ferguson, who, as I said earlier, objected to the loss of her view.

There is, however, a question as to precisely what is addressed by cl 13(2)(c). Mr Tobias submitted that cl 13(2) must relate to material obstruction of views from the buildings when erected occurring as a consequence of the non-compliance with the building height plane requirement. Accordingly, in his submission, it is necessary to compare the impact on those views between a building which complies with the building height plane requirements and one that does not. In the submission of Mr McEwen SC, who appeared for the council, there is no such comparison; if the buildings, when erected, materially obstruct the views from adjoining buildings, then they may not be erected.

I accept Mr Tobias' submission. Clause 13(2) deals with the criteria for erection of a building that does not comply with the building height plane requirement in cl 13(1). In that context, the criteria which cl 13(2) specifies must relate to the impact as a consequence of the non-compliance, not the more general impact of the proposed buildings, which instead falls for consideration under s 90(1) of the EP&A Act and under other provisions of the LEP.

In giving oral evidence, Mr Smith pointed out that the non-compliance with the building height plane at the south west corner of the western elevation of the proposed building B would have no real impact upon views from No 15 Morden Street because the stepped back nature of the building would not have a material effect upon the cone of view from the residential flat building to the golf course.

I conclude, therefore, that the buildings, when erected, will not, by reason of non-compliance with the building height plane requirement, materially obstruct views from adjoining buildings.

Once again, the only potential for impact is in relation to No 15 Morden Street. Mr Smith stated that the overall separation of 9.4 metres between the proposed buildings and the adjoining building would obviate any material impact in this respect.

No other expert addressed this aspect specifically.

Ms Haertsch said that non-compliance with the building height plane requirement indicated the extent and bulk of the proposed buildings, and that would result in significant impacts to vista and visual amenity.

Mr Ingham took issue with this view. In his opinion, non-compliance with the building height plane requirement does not significantly contribute to the overall bulk and scale of the proposed development, and the non-compliance is minor. His view was that the proposed buildings were sympathetically designed and responsive to the site.

I conclude that the proposed buildings may be erected despite non-compliance with the building height requirement. I accept the evidence of Mr Ingham and Mr Smith in this regard, and I conclude from their evidence that there will not be a material impact in relation to any of the matters set out in cl 13(2).

In coming to this conclusion, I have not overlooked the fact that cl 13(2) refers to a "well founded objection". I take the view that the relevant "well founded objection" must be one that is based on objective fact relating to impact from non-compliance with the building height plane requirement, and there is no evidence of such an objection.

Accordingly, development consent should not be refused on this ground.

Clause 13A of the LEP deals with landscaped area. It specifies, so far as concerns a residential flat building, that 60% of the site must be landscaped.

In cl 5 of the LEP, "landscaped area" is defined as meaning -

"that part of the site not occupied at or above ground level by any building or swimming pool which part is or is proposed to be predominantly landscaped by way of planting, gardens, lawns, shrubs or trees and 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 driveways and parking;"

The proposed development does not meet the requirement specified in cl 13A, but the applicant has, pursuant to State Environmental Planning Policy No 1 ("SEPP 1"), formally lodged an objection that compliance with this requirement is unreasonable or unnecessary in the circumstances of the case. The applicant is entitled to a grant of development consent despite non-compliance with this standard, if the objection is well founded.

Ms Haertsch calculated the landscaped area as being 871.9 square metres or 53.75% of the site. Mr Smith's calculation was 973.2 square metres or 56.94 % of the site. He said, however, that if the area of the site below the eaves of the proposed buildings was included in the calculation, then the buildings would comply with the landscape percentage. Ms Haertsch disputed the inclusion of the area below the eaves in the required calculation, pointing out that the definition referred to "that part of the site not occupied at or above ground level ...".

I do not need to decide the correct basis for the calculation of the landscaped area because I consider that the deficiency is, on either calculation, a minor one. I accept the applicant's contention that the non-compliance would have no adverse impact, and accordingly, I accept the objection as well-founded and non-compliance would not be a bar to development consent.

"14A (2) A residential flat building shall not be erected on land in Zone No 2(c) if the building has more than 3 storeys measured vertically above any point at natural ground level."

Clause 5 of the LEP contains the following definition:

"`storey' means any floor or part of a floor regardless of use but does not include:

(a) an attic contained wholly within the roof space where the roof has a maximum pitch of 36 degrees; or

(b) a parking area contained wholly within a basement which is below the natural ground level."

There is no dispute that the proposed building A complies with cl 14A(2), but the applicant concedes that the proposed building B does not comply with cl 14A(2) in relation to the parking area as specified in cl (b) of the definition of "storey" and the applicant has accordingly made an objection under SEPP 1 that compliance is unnecessary or undesirable in the circumstances.

The area of non-compliance is in the ceiling of the basement carpark. According to the applicant's SEPP 1 objection, the basement of building B extends above natural ground level between 0 metres to a maximum of 950mm. Professor Webber disagreed with these figures. On his calculation, the extent of non-compliance is approximately 1.5 metres maximum.

The applicant's contention is that the extent of non-compliance is minor, and is brought about by the sloping nature of the site. In its SEPP 1 objection, the applicant contended that the non-compliance generates minimal adverse impact on adjoining properties, and will not result in a development inconsistent with any planning objectives for the locality.

Professor Webber and Ms Haertsch were concerned with the effect of the non-compliance on the bulk and scale of the proposed building B.

Mr Ingham argued that the use of the word "wholly" in subcl (b) of the definition means that, in this case, the basement carpark is not a storey within the definition because it is "predominantly" below natural ground level and would be recognised by an observer as being below natural ground level. I do not think that this argument can be sustained. The plain words of subcl (b) suggest that the exclusion relates only to a parking area which is "wholly" below natural ground level and any departure from the whole will make the parking area a storey for the purpose of applying the development standard contained in cl 14A(2).

Nonetheless, I accept that the non-compliance arises from the steep nature of the site, and I accept that the non-compliance is minor. In the circumstances, therefore, I conclude that the applicant's SEPP 1 objection is well founded and development consent should not be refused on this ground.

I should not depart from this issue without mentioning the question of the attic on the east-west section of the proposed building B. Ms Haertsch pointed out that there is a doubt as to whether that attic is contained wholly within the roof space where the roof has a maximum pitch of 36 degrees, pointing to the vertical projection of one of the dormer windows. However, in cross examination, she conceded that, if there was such a non-compliance, it was technical and minor, and was not formally pressed by the council as an objection to the grant of consent to the proposed development.

Although submissions from residents was not raised as a specific issue, a number of residents gave evidence as to their concerns with the proposed development. They were Ms C Bisits, Mrs Ferguson (to whom I have earlier referred), Ms J A Marinos, Ms C M Cowell and Ms C S DeMink.

They raised concerns about the demolition of the three existing dwellings, the bulk and scale of the proposed buildings, loss of views, and preservation of the conservation area. I have dealt with all these matters earlier in this judgment and in doing so I have taken the residents' concerns into account.

In accordance with the foregoing, I have concluded that the development application should be determined by the grant of consent.

As required by the Land and Environment Court Rules, the council tendered a set of conditions which it would impose if consent were to be granted. There was no argument about those conditions and I propose to impose them.

2. Development application No 1313/97 in respect of the demolition of existing dwellings on lots A, B and C in DP 337307 and the erection of two residential flat buildings with basement car parking and consequent strata subdivision is determined by the grant of development consent subject to the conditions marked 1 to 41 inclusive annexed and marked "A".

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 23 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

2 - 4 Warringa Road and 19 Morden Street, Cammeray

Joseph Lahoud & Associates Pty Ltd v North Sydney Council

1. The development shall be carried out generally in accordance with plans numbered 9724.00-9724.10, dated June 1997, drawn by Joseph Lahoud and Associates Pty Ltd, except where amended by the following conditions.

2. Building materials shall not be placed on the council's footpaths or grass verges and a suitable sign to this effect shall be erected adjacent to the street alignment unless otherwise approved by the council on application.

3. A survey certificate showing the boundary area and levels of the allotment and adjacent street pavement to Australian Height Datum shall be submitted with the building application. Survey pegs are to be placed around the allotment and to remain in position until the building is physically complete.

4. The reflectivity index of reflective glass in external walls of the proposed development is to be no greater than 20%. Written confirmation of the reflectivity of the glazing is to be submitted with the building application.

5. Paving and floor surfaces in public areas, such as entry lobbies, arcades, walls, and the like

must have a non-slip finish which meets the requirements of AS/NZ 366.1 - "Slip resistance of pedestrian surfaces". Details shall be submitted for the council's consideration.

6. No demolition or excavation shall be carried out until building approval has been obtained.

7. A report prepared by a practising engineer, at no cost to the council, detailing the structural adequacy of adjoining properties, and their ability to withstand the proposed excavation and any measures required to be incorporated to ensure that no damage will occur during the course of the works, shall be submitted to the council prior to any excavation works taking place.

8. Excavation is not to extend within one metre of the site boundaries and is to be regarded as an excavation free zone.

9. Compliance with the following clauses contained in the Local Government (Approvals) Regulation 1993.

32. It is a condition of an approval to erect a building that:

(a) all excavations and backfilling are executed safely and in accordance with appropriate professional standards; and

(b) all excavations are properly guarded and protected to prevent them from being dangerous to life or property.

33. It is a condition of an approval to erect a building that, if the soil conditions require it:

(a) retaining walls or other approved methods of preventing movement of the soil must be provided; and

34. (1) It is a condition of an approval to erect a building that, if an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made must comply with this clause.

(a) preserve and protect the building from damage; and

(b) if necessary, underpin and support the building in an approved manner.

(3) The person must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars to the owner of the proposed work.

(4) In this clause, allotment of land includes a public road and any other public place.

37. (1) It is a condition of an approval to erect or demolish a building that this clause is complied with, if a public place or pedestrian or vehicular traffic may be obstructed or rendered inconvenient because of the carrying out of the activity.

(2) It is a condition of an approval to enclose a public place in connection with the erection or demolition of a building that this clause is complied with.

(3) A hoarding or fence must be erected between the building or site of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work, falling on to the public place is also to be erected.

(4) The work is to be kept lit during the time between sunset and sunrise if the work may be a source of danger to persons using the public place.

(5) A hoarding, fence or awning is to be removed when it is no longer required for the purpose for which it was provided."

10. Demolition of the building is to be carried out in accordance with the provisions of Australian Standard AS 2601 - 1991 - "The demolition of structures".

11. All precaution must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights must be observed at all times. Where damage occurs to adjoining property all necessary repairs or a suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the council issuing a certificate for classification for occupation of the development or issue of a building certificate.

In the event that no suitable agreement between the relevant parties has been reached within a period of 21 days from the day upon which the council notifies the owner/builder or applicant of the damage, then the matter is to be the subject of further consideration by the council for appropriate action in relation to the damage or issue of the certificates.

12. Only one common television aerial for each building shall be installed.

13. A contribution pursuant to the provision of s 94 of the Environmental Planning and Assessment Act 1979, as specified under the North Sydney Section 94 Contribution Plan adopted on the 17 May 1993 for the services detailed in column A and for the amount detailed in column B shall be made to the council prior to the release of any approval under the Local Government Act 1993.

14. A schedule of external colours, finishes and materials for all new work to the satisfaction of the Director of Planning and Environmental Services shall be submitted with the building application.

15. Mail deliveries shall be in accordance with Australia Post Guidelines. In general, a clearly marked mailbox (or group of mailboxes) shall be provided within 500 mm of the footpath alignment for premises at ground level, or adjacent to the main entrance to the development, where applicable.

16. Approved silencing services shall be provided and maintained in respect of all power-operated plant used in demolition, excavation, earthworks, and erection of the buildings.

17. Suitable screens and/or barracks shall be erected during demolition, excavation and building works, where required by the council's Director of Planning and Environmental Services, to reduce the emission of dust, water effluent or other matter from the site. (Screening is to consist of a minimum two metres height of shade cloth or similar material secured to a chain wire fence or the like).

18. The applicant shall submit to the council a certificate from Sydney Water under s 73 of the Water Board (Corporatisation) Act 1994, demonstrating that its requirements, if any, in relation to this development have been met, prior to the release of the stamped building plans. Under no circumstances will the council release plans without the certificate.

19. A copy of all council approved plans, specifications and documents incorporating conditions of approval shall be kept on site at all times so as to be readily available for perusal by any officer of the council.

20. A black and white photographic survey, to the satisfaction of the Director, Planning and Environmental Services, is to be submitted with the building application prior to the demolition of the buildings. The photographic survey is to be submitted in an unbound report format, which is to contain:

- the name of the company or persons responsible for the survey.

B. A layout plan of each of the existing buildings, identifying rooms and features shown in the photographs.

C. Photographs of the interior, exterior, and streetscape view of the buildings, labelled to indicate their location in relation to the layout plan and elevations of the buildings and a set of negatives. All photographs are to be mounted in acid-free photographic corner mountings, photographs are to be fixed into acid-free corner mounting.

D. Where colour is a feature of the buildings (for example, the buildings feature stained glass, leadlight or polychrome brickwork), additional colour photographs (with negatives) are to be included in the photographic survey report.

21. Demolition, earthworks, building construction and landscaping works shall be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and public holidays.

Excavation works shall be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).

The builder and excavator shall display on-site their contact telephone number which is to be clearly visible and legible from any public place adjoining the site.

22. The applicant shall bear the cost of all works associated with the development that occurs on the council's property.

23. No trees on public property (footpaths, roads, reserves, etc) shall be removed or damaged during construction including the erection of any fences, hoardings or other temporary works.

24. The applicant shall bear all costs associated with the adjustment of all public utilities affected by the work. The applicant shall submit, at the time of lodgement of the building application, written evidence of liaison with the public utility authorities.

25. The unbuilt-upon portion of the site, together with all unbuilt-upon roofs over basement parking and the like, shall be landscaped and/or paved.

26. Paving shall constitute not more than 20% of the landscaped area.

27. Planting over concrete slabs of basements, roofs, etc, shall have a minimum depth of soil of 750 mm. Wherever possible trees and shrubs are to be planted in unexcavated soil.

28. Landscape plans shall be submitted with the building application detailing:

(i) an accurate current survey showing all trees, both those to be retained and those to be removed;

(ii) concept plan (indicating existing trees to be removed and retained);

(iii) a planting plan (including planting schedules);

(iv) typical sections showing drainage, waterproofing and planter depth, where constructed over roofs and the like.

29. On-site works shall not commence until landscape plans have been approved by the Landscape Development Officer.

30. The applicant shall apply for a vehicle crossing permit and this shall incorporate the council's required levels within the building application. The applicant shall construct or reconstruct full-width concrete vehicular crossings to all entrances and exits in accordance with the council's standard plans and specifications. Construction shall include all service adjustments and shall include any regarding of adjacent footpaths and kerb and gutter required to the satisfaction of the Development Engineer.

31. All redundant lay-backs and vehicular crossings shall be reinstated to conventional kerb and gutter, foot-paving, grassed verge as appropriate. All costs shall be borne by the applicant. Locations shall be clearly shown on the building application.

32. Car-parking spaces for disabled persons shall be provided as part of the total car-parking requirements. Consideration must be given to the means of access from the car-parking spaces to adjacent buildings and to footpath and roads and shall be clearly shown on the plans submitted with the building application.

33. Plans indicating all engineering details and calculations relevant to site regarding the collection and disposal of stormwater from the site, buildings, and adjacent catchments, shall be submitted for approval with the building application. Stormwater shall be conveyed from the site to the nearest council pipe drainage system unless otherwise specified by the council. All proposals shall be in accordance with the council's specifications. The plans are to be approved by the Development Engineer prior to the commencement of any work or prior to the release of stamped approved plans.

34. The building application shall be accompanied by a completed energy performance report modelled on an approved computer program and certified by an accredited energy auditor in the manner set out in schedule 6A of the council's Energy Efficiency Controls.

35. Where construction or excavation activity requires the disturbance of the soil surface and existing vegetation, details including plans and specifications which provide adequate measures for erosion and sediment control shall be submitted to the council accompanying the building application. As a minimum, control techniques are to be in accordance with the council's "Guidelines on Erosion and Sediment Control", or a suitable alternative method. The control plan shall incorporate and disclose:

(a) All details of drainage to protect and drain the site during the construction processes;

(b) All sediment control devices, barriers and the like;

(e) A schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained.

36. Techniques used for erosion and sediment control on building sites are to be adequately maintained at all times and all techniques shall remain in proper operation until all development activities have been completed and the site fully stabilised.

37. Prior to the commencement of building/excavation works on site, all erosion and sediment control measures are to be installed.

38. The applicant shall ensure that vehicles involved in removing excavated material from the site have the under side of the vehicle washed to ensure that site material does not enter the roadway or stormwater system. All polluted water shall remain on-site for treatment prior to disposal to the stormwater system.

39. During the excavation process excess soil from the site should be confined to stockpile areas. Note that the stockpile areas are to be confined within the site and that the grass verge should not be utilised for this purpose.

40. Privacy screens shall be erected along the western face of the front balconies to units 11 and 15 to the satisfaction of the Director of Planning and Environmental Services.

41. The front fence is to be erected to no higher than 900 mm and is to be of material and design to the satisfaction of the Director of Planning and Environmental Services.

At a glance

Court

Decision date

Before

Source

Judgment (200 paragraphs)

Legislation Cited (5)

Cases Cited (3)

JOSEPH LAHOUD & ASSOCIATES PTY LTD v. NORTH SYDNEY COUNCIL [1998] NSWLEC 22 (26 February 1998)