Nicholas Dunn & Associates Pty Ltd v North Sydney Council

The clauses of the LEP have to be read in the light of the defined terms in schedule 2 of the LEP. Of particular relevance are the definitions of: + building height plane, + conservation area character, + contributory item, + height, + heritage significance, + landscaped area, + neutral item, + neighbourhood, + uncharacteristic element. 10. Under the North Sydney Development Control Plan 2002 (DCP), the subject site is in the Plateau Conservation Area, immediately opposite the Cammeray Conservation Area. These two conservation areas are within the larger Cammeray Neighbourhood, which in turn is within the larger Cammeray Planning Area.

Relevant provisions of the DCP include: + section 7.2(a), (i) + section 7.3(f), (h) and (i) + section 8.8(b), (g), (h) (i), (k), (l), (m).

I turn now to consider some of the above provisions in more detail in the light of the evidence.

Consideration of or consistency with certain objectives

Clause 14 of the LEP provides: 14 Consistency of aims and objectives (1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan. (2) Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls.

The particular objectives of the Residential A2 zone, as set out in the table to clause 14 of the LEP, include: (a) maintain lower scale residential neighbourhoods of mainly detached and duplex housing, and (b) assist in the conservation of heritage and other sensitive areas, and (c) encourage the retention of existing contributory items or neutral items in conservation areas.

The proposed large house would be consistent with particular objective (a), which refers to duplex housing. In relation to particular objective (b), it is not clear whether "heritage" refers to a heritage item or a conservation area. There are no nearby heritage items that would be affected by the proposed development. Matters relating to the Plateau Conservation Area (assuming it to be a sensitive area) are considered later. Particular objective (c) should reasonably take account of the condition of the contributory or neutral item (the existing building on the subject site is neutral).

Having regard to the poor condition of the existing building, the proposed demolition of the building would be acceptable, subject to a suitable replacement building having first been approved.

The specific objectives of the residential zone controls are set out in cl 16 of the LEP:

16 Residential zone objectives The specific objectives of the residential zone controls are: (a) a range of dwelling types, which includes: (i) dwelling-houses, each being a detached house and garden, providing accommodation for a range of households and, in particular, households with children, and (ii) duplexes, being two dwellings in the one building, which will have a similar appearance, bulk and scale to a detached house and which will assist in the retention of existing buildings, and (iii) attached dwellings, being a medium density form of housing, with underground parking and garden Courtyards for the use of residents, each dwelling having its own entrance directly from the road into the dwelling and a majority of dwellings having an address to the road, and (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, and (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, and (e) to avoid carriage development.

The proposed development may be regarded as being consistent with the above objectives, other than perhaps objective (c). However, having regard to the conservation provisions (discussed later), I am of the view that the design and form of the proposed development does not sit comfortably with the contributory items in the Plateau Conservation Area and should be refused for this reason.

As regards specific objective (d) of clause 16, the LEP defines "neighbourhood" and "character statement": neighbourhood means: (a) a locality within the local government area of North Sydney, except as provided by paragraph (b), or (b) if there is a character statement that identifies land including that locality as a neighbourhood, the land so identified.

character statement means a statement that: (a) identifies the desired character for a neighbourhood within the North Sydney local government area described in the statement, and (b) has been adopted by the Council as a character statement for the purpose of this plan.

As mentioned at par 10 above, the subject land is in the Cammeray Neighbourhood, and the DCP has a specific character statement for this neighbourhood at p 45 of the DCP Character Statements. Among other things, the character statement says that the building typology includes "A wide range of detached houses, duplexes, attached dwellings and some apartment buildings, according to the zone." I agree with the submission of Mr Hones that the proposed development would be consistent with objective (d) of clause 16, having regard to the broad range of dwellings mentioned in the neighbourhood character statement.

Relevant provisions of the LEP relating to "building height" (as distinct from "building height plane") are as follows: 17 Building heights (1) Building height objectives The specific objectives of the building height controls are to: (a) limit the height of buildings in residential zones to: (i) one storey, at the street façade, where that is the characteristic building height, or (ii) subject to subparagraph (i), heights which are the same as or similar to the characteristic building heights, or (iii) if neither subparagraph (i) nor (ii) applies, two storeys, or (iv) … (a1) promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient, and (b) promote gabled and hipped roofs in all residential zones and avoid other roof forms except: (i) skillion roofs over verandas and rear extensions to buildings that have a main roof that is gabled or hipped, or (ii) where it is desirable to preserve views, other roof forms that are characteristic of the area, and (c) promote the retention of and, if appropriate, sharing of existing views, and (d) maintain solar access to new and existing dwellings, public reserves and streets, and promote solar access to new buildings, and (e) maintain privacy for residents of existing dwellings and promote privacy for residents of new buildings, and (f) prevent the excavation of sites for building works, other than for garages and car parking. (2) … (3 ) Building height controls Except as otherwise provided in this clause, a building must not be erected, in a residential zone, in excess of 8.5 metres in height. (4) Where the characteristic building height is one storey, a building must not be erected, in a residential zone, in excess of 5.5 metres in height at the street façade or 8.5 metres in height otherwise.

What is meant by the expression "characteristic building height" in clause 17(1)(a)(i) and (4) above? Schedule 2 of the LEP used to have a definition of that expression, but the definition has been repealed. The expression should therefore be given its ordinary meaning in the context of the whole clause. It would be a question of fact what the characteristic building height is in the streetscape or in the locality where the proposed development is to be carried out. A DCP, being a subsidiary document to an LEP, may attempt to describe or specify what is meant by the expression, and I would not ignore that. However, it seems to me that clause 17, being in an LEP and applying to different zones, should always be interpreted in the same way, and the meaning of the expression in the final analysis would (on the present wording of the LEP) be independent of the DCP. It would be different if "characteristic building height" was defined by the LEP to mean, for example, "the building height specified for a locality identified in a development control plan". It should also be noted that clause 17 applies to all residential zones, whether or not the land in the zone is in a conservation area.

What is the characteristic building height for a development of the subject land? Looking at the photographs and the description of buildings in the locality in the booklet (ex 6), two-storey dwellings, or single-storey houses with an extra storey or attic added over part of the ground floor, can be found that Nos 3, 5, 11, 14, 18, 20 or 22 and 32 Cairo Street, but all the other houses (shown in ex 6) in Cairo Street are single storey. In Carter Street, double-storey or partly double-storey buildings are located at Nos 2A, 2B, 2C, 2D, 6, 8, 9, 11, 19, 21 or 23, 27; and the three-storey residential apartment building is at 29 Carter Street. Other buildings in Carter Street from Wilson Street in the east up to Colin Street in the west have only one storey. A partly double-storey house is at 3 Collins Street and can be seen from Carter Street near the subject land.

If I were considering the characteristic building height irrespective of which façade was seen, then there would be a case for holding that the characteristic building height was not simply "one storey" but that the characteristic building height should be described as "one and two storey". And if that were the case, clause 17(1)(a)(iii) would apply, and the permissible height of a building at the subject site would be two storeys, with a maximum height in accordance with clause 17(3) of 8.5 m.

In interpreting what is meant by the characteristic building height, regard should be had to one of the objects of clause 17(1)(a) which is to "limit the height of buildings…to…one storey, at the street façade, where that is the characteristic building height (emphasis added). So attention is directed to the question whether the characteristic height is one storey at the "street façade". Where a second storey is located towards the rear of the building and might only be seen in an elevation plan, such a rear addition would ordinarily not be regarded as being at the street façade. Although there are some two-storey buildings at the street façade, many of the partly two-storey buildings are single-storey at the street façade and have an addition towards the rear of the building where it is not readily observable. And besides these partly two-storey buildings there are the many single-storey buildings referred to earlier, particularly in Cairo Street.

The evidence of Mr S Beattie, manager of development services of the Council, was of the opinion that the characteristic building height for Cairo Street was clearly single-storey at the street façade, and the description given by Mr G Goodyer at 4.7 of his report (ex D) would tend to agree with that view. However, Mr Goodyer was of the opinion that Carter Street is not characteristically single storey.

On balance, I find that the characteristic building height at the Cairo Street façade for development on the subject land is one storey, and that (for the purpose only of clause 17 of the LEP) development facing Carter Street is characteristically one and two storeys, in which case two storeys may be permitted at the Carter Street façade. The fact that there is a single three-storey apartment building does not make the characteristic height three storeys, but this building adds emphasis to the view that the characteristic building height for the Carter Street façade is not simply single storey. To accommodate this finding, it seems that part of the western end of the Carter Street façade, where it approaches the Cairo Street façade, would also probably have to be single storey, unless an objection were allowed under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1).

This finding means that clause 17(4) limits the height of a building on the subject land at the Cairo Street façade to 5.5 m. Elsewhere than at the street façade, the height may be up to 8.5 m (subject to compliance with other controls in the LEP). However, the 5.5 m limit at the street façade is a development standard that may be exceeded in an appropriate case under SEPP 1.

The applicant has in fact lodged an objection under SEPP 1, as set out in Mr Goodyer's statement. This objection was lodged on the basis that it would be relied on if the Court found that the building had to have a 5.5 m height at each façade.

As defined in the LEP, the "height" of the proposed building, measured from the finished floor level to the ridge of the gable-ended roof at the Cairo Street façade is 7.2 m. The open metal frame at the front of the proposed building may be beneficial in making part of the front of the building parallel to the street alignment of Cairo Street, although the building would still have a two-storey height, and the front façade would be uncharacteristic of other dwellings (including the existing building on the subject site) in Cairo Street, and the gable end of the proposed roof would not be parallel to the metal frame. I note that the parties subsequently agreed that (if it were otherwise appropriate to grant consent) the ridge over the front roof could be constructed to RL 91.43. Because this gable-ended roof is set back only a short distance from the parapet, I regard it as being part of the front façade of the building.

In my opinion, there may be some justification for allowing an objection under SEPP 1 in respect of the building height for an appropriate form of development, having regard to the fact that the immediately adjoining house at No. 3 Cairo Street is two storeys, and the southern façade of the proposed building is in that part of Carter Street where a suitable two-storey development would not be out of place. In addition, at the Cairo Street elevation, the height of the building would be partially screened by the tree in the nature strip of Cairo Street and by a large palm tree that will be retained in the front yard. As well, it could be taken into account that the existing garage on the subject site has an adverse impact on the streetscape because of its lack of setback, and the Carter Street side of the existing house has an unsympathetic glazed addition to it.

However, the two-storey height of the proposed building has little relief over its whole length facing Carter Street, even though (and this is commendable) there is a step down in the floor levels by 1.2 m part-way along the building's length of 26.6 m to take account of the fall of the land. The ridge of the smaller roof over the rear part of the building is 2.1 m lower than the ridge over the front part (as per "without prejudice" condition E1A), although this lower ridge is closer to Carter Street.

The SEPP 1 objection states that the rock cutting that adjoins the subject site creates a vertical separation such that the proposed building would be obscured from view from Carter Street. However, it seems to me that this statement is only partially correct. As seen from the lower parts of Carter Street, the rock cutting would obscure much of the western end of the proposed building, but the eastern end would be seen near Cairo Street. As one approaches Cairo Street from the east, the cutting diminishes and disappears completely and the proposed two-storey façade would be obvious. Likewise, approaching from the west in Carter Street (for example, walking along the southern footpath) where the level of the road is higher than the level of the subject site, the proposed two-storey building at the corner of Cairo and Carter Streets would clearly be perceived as a two-storey building.

Leaving aside clause 17, and having regard to the conservation provisions referred to later in this judgment, it seems to me that the height of the proposed building over the full length of the Carter Street façade, when taken in conjunction with the building's uncharacteristic features, would result in the proposed development not being sufficiently compatible with the contributory items in the Plateau Conservation Area.

The relevant provisions regarding the building height plane are: 18 Building height plane (1) Building height plane objectives The specific objectives of the building height plane controls are to: (a) control the bulk and scale of buildings, and (b) provide separation between buildings, and (c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access. (2) Building height plane control in residential A1, A2, B and F zones A building must not be erected in the residential A1, A2, B or F zone if any part of the building will exceed a building height plane, commencing at 1.8 metres above existing ground level, projected at all points from each of the boundaries of the site. (5) Building height performance criteria 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 any 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. 36. It is important that there be no material breach of the building height plane on the northern side, because the amenity of the house at 3 Cairo Street could be more adversely affected. Already, without any breach of the building height plane, from the side windows of No. 3 at the rear of the house there will be significant loss of views. However, any reasonable development is likely to cause loss of views from the ground floor of No. 3 across the common side boundary towards the south and southeast. On the upper level from a sitting position, the ridge on the proposed lower roof will be only slightly lower than the horizontal line of view. From a standing position of the upper level there will be still views to the far side of the golf course but loss of views in the foreground. Views to the south will not be affected from either level.

37. For any new development proposal, it would appear desirable to check carefully what the existing ground level of the site is at the common side boundary, from which (at 1.8 m above that level) the building height plane is projected, to ensure compliance with clause 18. Sections 1 and 2 of plan WD07A show that the 1.8-m height at the boundary has been measured vertically from the existing ground levels on No.3, whereas the survey plan (ex C) indicates the subject land at some places near the boundary is about 1 m lower. What needs to be ascertained is the "existing ground level" of the site at the boundary, in accordance with the LEP, namely, "the level of the ground as at December 1997, as shown on the Council's digital photogrammetric maps dated December 1997." Any lowering of the height over the eastern end of a new building on the subject land would retain more views from the upper level of No.3.

38. The LEP deals with conservation areas as follows: 49 Conservation areas (1) Conservation area objectives The specific objectives of the conservation area controls are to: (a) conserve the character of the neighbourhood and heritage significance of the conservation area, as a whole or any part of the conservation area, and (b) ensure that demolition within conservation areas does not result in incremental loss of heritage significance, and (c) prevent the demolition of contributory items, and (d) provide specific criteria to be considered when determining a development application in respect of a building, work, or place in a conservation area, and (e) ensure that neutral items are retained, and (f) encourage the removal of uncharacteristic elements from conservation areas and their replacement with buildings or works that reinforce the character of the neighbourhood and heritage significance of the conservation area, and (g) discourage development that is similar to uncharacteristic elements. (2) Assessment of proposed development: conservation areas When determining whether or not to grant consent to a development application in respect of a building, work or place within a conservation area, the consent authority must consider: (a) whether the proposed development will adversely affect the character and heritage significance of the conservation area, as a whole, and the part of the conservation area in the immediate vicinity of the proposed development, and (b) whether the proposed development will reduce the uncharacteristic elements present in the conservation area, and (c) without limiting the generality of paragraph (a) or (b), whether: (i) the height, number of storeys, bulk and scale of the building, and (ii) the pitch, form and detail of the roof of the building, or (iii) the style, size, proportion and position of openings for windows or doors of the building, and (iv) the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building, and (v) the setbacks of the building, and (vi) the design of the landscaped area of the development site, and (vii) the pattern of any subdivision included in the proposed development, are similar to those of contributory items within the conservation area, as a whole and in the immediate vicinity of the proposed development. (3) (Repealed) (4) Required documentation: conservation areas Before determining whether or not to grant consent to a development application in respect of a heritage item, the consent authority may require the submission of: (a) a statement of heritage impact or a conservation management plan, and (b) a structural engineer's report. (5) Consideration of complete demolition: conservation areas Consent must not be granted to development involving the complete demolition of a building, work or place within a conservation area, until the consent authority has considered: (a) whether the proposed development will adversely affect the character of the neighbourhood and heritage significance of the conservation area, as a whole and in the immediate vicinity of the proposed development, and (b) whether the building, work or place is structurally sound and reasonably capable of conservation, and (c) whether the proposed building or work intended to replace that being demolished will contribute to the character of the neighbourhood and heritage significance of the conservation area, in particular in terms of subclause (2)(c). (6) Required documentation: complete demolition in a conservation area Consent must not be granted to the complete demolition of a building, work or place within a conservation area until the consent authority has considered: (a) a statement of heritage impact, and (b) a structural engineer's report, except where the building or work to be demolished is an uncharacteristic element. (7) Site redevelopment Despite any other provision of this plan, the consent authority must not grant consent to an application for the complete demolition of a building, work or place within a conservation area unless the consent authority, at the same time, grants consent to a replacement building or work on the site.

39. The definition of "neighbourhood" has been given above (par 19). Other definitions relevant to the conservation provisions include: conservation area character in relation to conservation areas, means the combination of features which distinguish each conservation area. contributory item means a building, work or place, or a fixed component thereof, which is located on land coloured yellow on the map, or is included in Schedule 4 (Contributory items). heritage significance means historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic value. neutral item means a building, work or place or component thereof located on land shown uncoloured and within a conservation area on the map. uncharacteristic element means a building, work or place or a fixed component thereof on land shown coloured red on the map, or included in Schedule 5.
40. Schedule 2 of the LEP lists the properties that are contributory items, and schedule 5 lists properties that are uncharacteristic elements. In Carter Street, the contributory items are at Nos 5-7, 6 and 8. The properties listed as uncharacteristic elements in Carter Street are: the three-storey apartment building at No 29 and the townhouses at Nos 2A, 2B, 2C and 2D. Other properties not mentioned are neutral items.

In Cairo Street, many houses are contributory items. The contributory items are at the properties Nos 4, 5, 7, 11, 13, 17, 26, 28, 30, 32, 34, 46, 48, 57, 60, 64 and 66. In contrast, the uncharacteristic elements are quite limited, being at Nos 19, 23 and 74. Other properties not mentioned are neutral items.

Although Mr Staas supported the granting of consent, his statement of evidence contained a number of qualifications, as Ms Irish submitted, including the following: + generally sympathetic with the mix of surrounding development + views to the Carter Street presentation in particular are almost completely isolated from any appreciation of heritage streetscape character + the design achieves a degree of sympathy with its surroundings + despite the scale and height of the proposal it is unlikely to have a Significant adverse impact + the new house uses contemporary design elements and materials that are generally compatible with the development in the area + the development will not have a strong adverse impact on the identified character.

The provisions of the LEP are supplemented by those of the DCP in section 8.8 at pp 116-132, and regard should be had to the character statement for the Plateau Conservation Area at pp 47-9 of the DCP Character Statements. The DCP gives guidelines as to the design of buildings in a conservation area.

Although the amended plans of the present proposal before the Court are an improvement on the original plans, the evidence of the Council officers was to the effect that the design of the proposed building was still not suitable for the Plateau Conservation Area. The proposed building would become an uncharacteristic element in the conservation area, replacing a neutral item, and one of the objects of the LEP and of the DCP is to discourage development that is similar to uncharacteristic elements.

The lay witnesses also considered that the proposed building would be an unacceptable, foreign building in the conservation area. Many of the residents referred to the building being out of character or not fitting in with the values of the conservation area. Mr D Pura of 31 Carter Street described the building as an "office block" and said that it was incompatible with the area. It seems to me that this office-block appearance would be most obvious from the southern footpath of Carter Street opposite the T-intersection of Cairo Street.

The proposed development was opposed by the meeting of the Plateau Precinct, citing concerns about streetscape, view sharing and parking. Earlier in the year, the Plateau Precinct had conducted an anonymous postal survey of residents in the Plateau Conservation Area. The survey had a response of 40 percent. Of those who responded to the survey, 75 percent of the residents rated maintaining the streetscape character as important, and this was the most significant issue identified; 71 percent of residents would not allow the addition of a second storey.

The weight of the evidence leads me to the view that the proposed development is not sufficiently compatible in its design with the contributory items of the Plateau Conservation Area and that the proposal should be refused.

Transportation consultant Mr J. Coady provided a short report dated 8 February 2005 concerning the proposed driveway from Carter Street into the subject property. The entrance to the proposed development in Carter Street is part-way down a hill, the crest of which is at the intersection of Cairo Street. Mr Coady reproduced page 32 of AS/NZS 2890.1-2004, which indicates that a minimum site distance of 40-45 m is required for a posted or general speed limit of 50 kph. Mr Coady said that the (distance) measurements taken at the site confirmed that these requirements are satisfied with the site distance of 110 m to the east of the access driveway and approximately 52 m to the west. He recommended that access arrangements be modified to incorporate splays at the site boundary as shown in figure 3.3 AS/NZS 2890.1-2004 to enhance visibility of pedestrian activity along Carter Street for vehicles departing the site.

It can be noted that Mr Coady's report assumes that the general speed limit of 50 kph was generally being complied with. However, the evidence of the local residents who attended the on-site hearing was to the effect that cars speed down the slope of Carter Street from the crest at Cairo Street, and an accident was described of a vehicle colliding with a parked car near the proposed egress. Note 4 of AS/NZS 2890.1-2004 states that if the 85th percentile speed is more than 5 kph above the general speed limit, the tabulated speed nearest the 85th percentile shall be adopted. Thus, if the 85th percentile speed was, for example, 57 kph, then the nearest tabulated speed of 60 kph would require 55-65 m, which is not available at the proposed driveway for vehicles coming from the west. Query also what effect the downward slope of Carter Street would have on stopping distances compared with a road with no slope.

If a new development application is made that provides for a basement garage with access from Carter Street, a further short supplementary traffic engineering report dealing with the above matters may be necessary. It seems to me that if it can be established that egress from the site is safe, a basement garage, as presently proposed, might be appropriate. A vehicle turntable, as presently proposed would also appear to be essential, to enable cars to enter and leave the site in a forward direction. If the proposed development would have otherwise been acceptable, I would have adjourned the proceedings to enable further evidence concerning whether the egress would be safe.

By keeping the excavation for a carpark away from the boundaries of the site and by limiting the size of the excavation, it would seem unlikely that there would be any adverse impact on adjoining properties. Suitable conditions had been proposed by the Council on a "without prejudice" basis.

In the event that (contrary to the Council's submission) the Court decided to grant development consent, the parties agreed on all conditions to be imposed (Council's solicitors' e-mail 22 September 2005). There were some conditions specifically tailored to the subject site that would be relevant in respect of any new development application.

1. The appeal is dismissed. 2. Development application 631/04 relating to 1 Cairo Street, Cammeray is refused. 3. The exhibits, other than exhibits 1, 2, A, B, H, J and K, may be returned. __________ A J Nott, Commissioner of the Court

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