Winten Developments Pty Ltd v North Sydney Council

At the rear on the opposite side of Anderson Street is the Neutral Bay Sports Club.

The development is permissible within Zone 2(c) under North Sydney LEP.

The development offers views to the south west towards Sydney Harbour.

The subject site is within the Kurraba Point and Cremorne Point Heritage Conservation Area under the LEP. Clause 39(1) of the LEP provides that a person shall not demolish a building within the conservation area except with the consent of the council. Before granting consent to demolition, the council must take into consideration the extent to which the demolition would effect the heritage significance of the conservation area and be satisfied in a number of respects specified by cl 39(3) in respect of the proposed building and whether any stylistic, horticultural or archaeological features of the building to be demolished should be retained.

The council shall not consent to development which, in its opinion, is inconsistent with the objectives of the zone which are as follows:- (a) to permit a form of development which is compatible with the scale and character of the existing locality; and

(b) to allow non-residential uses which are compatible with the character and scale of medium density housing.

Furthermore, pursuant to cl 14A(1)(b) of the LEP, a residential flat building shall not be erected on land in the zone if well-founded objections, in the opinion of the council, have been raised by persons likely to be affected by the proposed building. The Chief Judge had cause to reflect on the application of this provision in Joseph Lahoud & Associates Pty Ltd v North Sydney Council (unreported 10440 of 1997 26 February 1998).

Clause 14A(2) stipulates that a residential flat building shall not be erected on land within the zone if the building has more than three storeys measured vertically above any point at natural ground level. The council contends that the building should be classed as comprising six storeys facing Wycombe Road, four storeys facing Anderson Street and five storeys in the centre of the site. A SEPP 1 objection has been lodged.

The LEP defines a "building height plane" as a plane projected at an angle of 45 degrees above 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 the plan for the purpose of establishing a building height plane. Clause 13 of the LEP provides that a building shall not be erected where any part of it will exceed a building height plane projected at any point from any boundary of the site except if the building, when erected, (a) will not materially increase the overshadowing of adjoining properties;

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

(c) will not materially obstruct views from adjoining buildings; and

(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.

There is some confusion as to the application of the building height plane in accordance with cl 13 as a consequence of the boundary of the site along Wycombe Road being a retaining wall approximately 1.8 metres in height. There is no SEPP 1 objection.

Clause 13A of the LEP requires 60 per cent of the site to be a landscaped area. The applicant relies upon areas under balconies and other projections, including gabled features, to make up the landscaped area. The council does not concede that cl 13A should be applied in this way. A SEPP 1 objection has been lodged.

The council's draft LEP for Heritage will require, in cl 41B(1), that the council be satisfied that there will be no adverse effect on the significance or character of the conservation area, no loss of characteristic features from the heritage conservation area and the character design and aesthetics of any proposed replacement development will contribute to the character and significance of the heritage conservation area before it grants consent. The council's witnesses are not satisfied that any of these requirements will be met.

The land is in Zone A2 under council's draft LEP 2000 where residential flat buildings will be prohibited development. Mr Davison SC contends that the proposed "down zoning" from Zone 2(c) to Zone A2 is contrary to s 117 Direction G9(iv) and therefore unlikely to be maintained in the final LEP if it is made. G9(iv) directs that draft LEPs which apply to land for residential purposes shall not contain provisions which will result in a reduction of the permissible residential amenity.

The North Sydney DCP No 1 describes the significance of the conservation area as follows:- Unique features of the townscape of the Conservation Area include the relationship between the natural topography and the local road system, and the resultant effect on development, and from the building stock. This includes a range of early twentieth century buildings, both large Federation single family dwellings, Edwardian bungalows and more recent styles of houses mostly set in landscaped, well maintained gardens.

The building stock and particularly buildings from the Federation period, establish a consistency in scale, materials and detailing which translate typically into compact multi-level plans with generally up-right elevations. The conservation area includes a number of buildings attributed to significant architects of the first two decades of this century.

It is asserted for the council that the four buildings that are to be demolished establish a consistency in scale, materials and detailing consistent with the above description.

Clause 50(1)(a) contemplates that applications for demolition of buildings in the conservation area may be referred by the council to the Heritage Council of New South Wales, National Trust of Australia (NSW) or any other relevant bodies prior to determination.

Pursuant to cl 50(1)(b), applications for demolition of buildings in the conservation area are to be considered only in conjunction with a development application for proposed development. Pursuant to cl 50(4), where council permits the demolition of a building in a conservation area, any new building to be erected in replacement shall reflect and reinforce the predominant architectural style of the locality. The applicant says that the architectural style of the locality is dominated by the adjoining properties, Tatlow Court and Wainoni, whereas the council directs its attention to the older, smaller scale developments on the opposite side of Wycombe Road.

The council also raises significant issues of privacy, obstruction of views and the failure to create views, as well as overshadowing.

Important questions also arise in regard to the bulk of the proposed building and its effect on the existing streetscape. The bulk of the building is to be measured against cl 12 of the DCP which provides that a residential flat building shall not be erected where the gross floor area of any dwelling exceeds 135 m 2 .

The council originally claimed that the car parking objective expressed in the DCP to limit car parking associated with development so as to minimise adverse impacts on the surrounding area is offended by the provision of spaces in exceedence of the number specified in the DCP by a small amount. This issue has been resolved by a condition to be imposed on any development consent that might be granted.

The council has summarised the issues as a whole in the following way:- Whether three of the buildings to be demolished which are identified as contributing to the conservation area and one building which is neutral in that respect should be demolished.

If the buildings are to be demolished, whether what is proposed is otherwise acceptable for its impact on the conservation area.

Otherwise, whether the proposal is acceptable in the light of non-compliance with:

i. the storey control; ii. the building height plane; iii. the landscape area.

A SEPP 1 objection has been lodged in respect of i. and iii. The non-compliance with standards is to be considered in the context of the impact on view, privacy, overshadowing and bulk.

The statements of evidence prepared by council's expert witnesses relied on the plans considered by council. The plans have undergone a number of changes.

Firstly, the application was amended after council consideration. The applicant's witnesses based their evidence in chief on these plans (Amendment A).

Secondly, the plans were further amended after the lodgement of the appeal to this Court (Amendment B). Council witnesses addressed those plans in reply.

Thirdly, additional amendments were made during the course of the hearing when it must have become apparent to those persons advising the applicant that, unless the whole building was dropped in height by 200 mm over each of five storeys, primarily to meet well-founded objections raised by persons likely to be affected, thereby leading to alleged non-compliance with cl 14A(1)(b) and also cl 13 of the LEP, the application could not be approved ( Lahoud ).

The final set of amended plans (Amendment C) was dealt with by council's consultant town planner, Ms Laidlaw, in a further reply and by supplementary evidence of town planner, Mr Terry Byrnes, on behalf of the applicant.

In each case the assessment of the impacts on views and privacy in the context of residents of No 88 Wycombe Road was assisted by photographs taken by Mr Michael Standley. The form of the proposed building was outlined on the photographs.

The final amendment, Amendment C, was allowed with the Court's leave on condition that the applicant pay all of the council's costs thrown away and any further costs incurred by an extension of the hearing as a consequence of the amendment.

Ms Duggan, on behalf of council, submits that the applicant must negotiate the obstacle of cl 39(1) of the LEP before any other considerations become relevant.

It is not in dispute that at least some of the houses which are to be demolished make some contribution to the heritage significance of the conservation area.

The council's heritage architectural consultant, Jennifer Hill, noted the four properties date from the key period of significance of the area, although, in the case of No 80, detracting alterations reduce its contribution to the streetscape.

She agrees with the general rule expressed by the applicant's heritage consultant, Richard Mackay, that as a matter of principle it is not reasonable to propose new development within a conservation area where it requires the demise of an existing, structurally sound contributory building.

However she disagrees with Mr Mackay's opinion that the buildings are marginal to the integrity of the conservation area because they are physically located at its edge. She identifies Wycombe Road as an important early transport route lined with significant buildings.

Although she recognised that the existing garages on the Wycombe Road frontage are an intrusive element, in her view they do not obscure the understanding of the houses to any relevant extent.

Mr Mackay identified the ultimate test as being whether the change proposed has a fundamental adverse impact on the assessed significance of the total place. In this case his opinion is that the removal of the buildings will not fundamentally affect that significance, whereas in the context of gradual erosion of the conservation area, Ms Hill disagrees. In her opinion, if the buildings are demolished, then the boundary of the conservation area will be changed bringing about a basic effect on the whole area.

It is only if the Court determines that the retention of the contributory buildings is not warranted that it becomes necessary to look at the new building to ensure that its impact does not have an adverse effect on the significance of the conservation area.

Ms Hill's objection is twofold. Not only does she not support demolition of the existing buildings, but she does not support the new building. She sees the proposal as essentially inconsistent with the typical small lot subdivision with separate buildings set back and individual roof forms which are features of the conservation area.

Vincent Murphy, the applicant's consultant heritage town planner, disagrees with Ms Hill's assessment in two relevant major respects. He does not regard the buildings as prestige architect designed houses with any particular historical significance. He agrees the houses are typical houses of the area, for their era, but they are no longer good examples due to their loss of integrity. In his opinion there is already an existing unsatisfactory relationship between the buildings in this part of Wycombe Road.

Mr Mackay does not agree with the assessment of significance and relative contribution attributed to the four houses by Ms Hill. He regards her approach as one that assumes that because the buildings are contributory, they must be preserved.

Where Ms Hill and Mr Mackay differ is that he concludes the contribution of the subject buildings to the conservation area is not such that their retention and conservation is the only course open.

The Court agrees that it is difficult to reach a dogmatic conclusion that the loss of the four buildings will have such an effect on the heritage significance of the conservation area that the Court has no option but to refuse consent for demolition. This part of Wycombe Road on the western side is already dominated and damaged in terms of its heritage value by the existing unsympathetic residential flat buildings at No 1 Raymond Road and No 88 Wycombe Road. The latter is particularly intrusive and its presence is unfortunate. It represents the product of a time in our planning history when little regard was paid to aesthetics or style.

The four buildings are not without any value, but the remaining contribution they make to the conservation area is not so significant that approval to demolition should be withheld on that account alone.

It does not follow however that if an approval is not forthcoming for the proposed new building that demolition should be allowed to proceed. It is essential that the consent authority first understands what is proposed as the alternative development so that it can be assessed for compatibility with the retention of the significance of the conservation area and the heritage items in the immediate vicinity.

Two of the essential elements recognised by the Chief Judge in Lahoud are present here. Objections have been raised by the residents of several levels of No 88 Wycombe Road and at least one resident of No 1 Raymond Road. Those objections are all by persons likely to be affected by the proposed residential building either in terms of view loss or privacy and, in the case of the resident of No 1 Raymond Road, overshadowing.

The issue between the parties is whether the objections are "well-founded objections" within the meaning of the clause.

The privacy and overshadowing issues do not loom as large as the issue in respect of views from No 88.

The applicant is content to rely on the approach taken in Lahoud as the applicant explains it. On the other hand, Ms Duggan urges the Court not to follow the Chief Judge in relation to the identification of the relevant test to be applied in order to determine what is a well-founded objection.

Mr Davison submits that the threshold test identified by her Honour in Lahoud is to be determined in the same way as any other question of prohibition. The impact is not to be weighed against other impacts. The effect must be so bad that the subject impact alone will justify rejection.

On the other hand Ms Duggan contends on behalf of the council that, rather than regarding cl 14A(1)(b) as operating as a prohibition, it should be seen in a practical sense as a clause facilitating development. The council's argument is that a residential flat building is prohibited in the zone unless all of the conditions of cl 14A are met. The development control table, in cl 9 only operates subject to as otherwise provided in the plan. Although prima facie a residential flat building is permissible from a reading of the development control table when one goes to cl 9 it is apparent that, as a matter of construction, regard must first be had to the other provisions, including cl 14A.

Notwithstanding the finding by the Chief Judge, the council submits that it is not appropriate to go behind the objection and have regard to the consequences for the objector in order to determine whether it is well-founded. It is suggested that if the Court embraces the approach taken by the Chief Judge in Lahoud , then cl 14A can never apply. Particular issue is taken with the statement of the Chief Judge at 6 as follows:- 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.

The context referred to by her Honour is the planning context by having regard to the planning controls which the LEP is designed to achieve derived from the objectives of Zone 2(c).

Mr Davison says it is not irrelevant to have regard to what otherwise might be erected on the site. A residential flat building is permissible so far as cl 14A is concerned provided no objector suffers the impact identified by the Chief Judge. He also says that the impact of the adverse effect on the objector is to be assessed without taking account of any counterbalancing matter such as the matters which formerly arose under s 90 of the EP&A Act and now arise under s 79C.

The reasoning by her Honour is carefully set out in the judgment. Whether an objection is well-founded is to be determined by an objective evaluation which discloses a real or material impact and not one that is incidental or slight (at 4). With great respect, I agree with her Honour. Her Honour's reference to whether the amenity of the person who raised the objection is impacted in such a way that the residential flat building might not be approved "at all" in my opinion must be read in the context of distinguishing the evaluation of all matters which are required to be taken into account under s 90(1) or s 79C of the EP&A Act as the case may be.

A slightly different approach to that taken by her Honour, in my opinion, brings about a result which is consistent with her finding in Lahoud .

The LEP must be construed as a planning instrument by having regard to planning objectives and principles. It is not appropriate to apply the black letter of the law as if its provisions were contained in a statute.

The relevant particular objective of Zone 2(c) is to permit a form of development which is compatible with the scale and character of the existing locality. By reason of cl 14A, residential flat building development is clearly recognised as a specific case which requires special consideration. In addition to the general criteria for consideration set out in s 79C, the consent authority is directed not to approve a residential flat building in circumstances where persons likely to be affected in a planning sense have raised an objection which discloses a real or material impact. If such an objection is based on good grounds or evidence and is not incidental or slight, then it operates as a bar to, or prohibition on, the development. It needs to be an impact which is likely to influence the determination of the development consent. To that extent it must be substantial but not necessarily a matter which would ultimately outweigh all of the other matters that might be taken into account in a final determination of the merits of the proposal.

I agree with Pearlman J that the consent authority is not required to evaluate the objection by comparison with what might otherwise be developed on the site. What has to be assessed is the impact of the proposed residential flat building.

In summary, the effect of cl 14A(1)(b) is to prohibit the erection of a residential flat building in Zone 2(c) when any person likely to be affected by the development raises a well-founded objection. A well-founded objection is one based upon established grounds which are themselves sufficient to influence the determination of the application for approval irrespective of any other matters which are required to be taken into account in the consideration process. It is relevant to have regard to the objectives of the zone to determine whether an objection is well-founded in the above sense. In a particular case it could be relevant to have regard to the general aims and objectives of the LEP itself but it is difficult to see how those more general objectives can assist the present case.

Clause 14A recognises that residential flat buildings are generally to be regarded as intrusive and permissible only where there is no measurable adverse impact on the occupiers of existing development who raise a relevant objection to the proposal. Given that it is units in a building which itself must be regarded in a planning sense as an anomaly in the terms of a modern approach, it is ironic that ultimately the impact on the units at No 88 Wycombe Road is the primary basis upon which cl 14A(1)(b) applies.

However, it is a reflection of the Court's finding as to the construction of cl 14A that the objection raised by the occupier of unit 13 at the lowest level of the building can be determinative. Although it is what the drawings describe as the ground floor of the proposed building which causes the view loss for unit 13 at No 88, it must be appreciated that the ground floor is actually the third level of residential accommodation.

The occupier of unit 63, situated higher up the building, also has what the Court regards as a well-founded objection.

I agree with Ms Laidlaw's final assessment that unit 13 continues to be impacted upon to the extent of a 100 per cent loss of harbour view notwithstanding the most recent changes made by Amendment C. Mr Byrnes seeks to rationalise this view on the basis that it could be readily lost by landscaped screening in any event. There is no evidence to support this and the real prospect of a loss to the extent anticipated by Ms Laidlaw was confirmed on the view.

Ms Laidlaw, assisted by photographs prepared by Michael Standley, has satisfied the Court there will be a significant loss of a view of an important part of the harbour from unit 63. Although there is some controversy regarding the extent to which the furthermost ridge of the proposed building will interpose in this view, the Court is satisfied that the perspective relied upon by the council is sufficiently indicative to demonstrate there will be a loss of substantial harbour views including from Fort Denison across to Lady Macquarie's Chair. In the case of unit 63, there remains a major opportunity to view the harbour north of Fort Denison. Although the loss of view from unit 63 might not be so significant that it alone could justify a refusal of consent, nevertheless it is matter which is likely to influence the determination of development consent, and is thus well-founded.

The Court is therefore satisfied that, in the circumstances of this case, cl 14A(1)(b) denies the applicant the opportunity to erect the proposed residential flat building on the subject site.

Applying the above facts to the threshold test in cl 14A(1)(b), the Court is of the opinion that the objections raised by the occupiers of units 13 and 63 are relevantly well-founded. Accordingly the proposed residential flat building cannot be erected on the land.

It is not necessary to go any further to consider the effect of the overshadowing or impact on privacy because, once a well-founded objection is found, that alone is fatal to the application.

Even accepting the applicant's argument that only those parts of the proposed building that do not comply with the height plane standard fall for consideration under cl 13, there will be a material obstruction of views from at least unit 63 by parts of the building which exceed the building height plane. It cannot be said that a view which encompasses that part of Sydney Harbour stretching from Fort Denison across to Lady Macquarie's Chair is immaterial even though it is only a segment of the available view of the harbour. There is no question that each case requires an assessment of fact and degree. However, it is not to be determined on balance against other facts.

The occupier of the ground floor unit of No 1 Raymond Road, who has lodged an objection based on potential overshadowing, will suffer increased impact at the critical times of the year. Direct sunlight is obviously an important amenity for this particular unit which was observed by the Court on the view. Notwithstanding suggestions by Mr Byrnes on behalf of the applicant that vegetation reduces the impact of overshadowing from the proposed building, it has not been demonstrated to the Court's satisfaction that the material impact will not occur.

The fact that the objections have been raised on these issues has the consequence that the building cannot be erected by reason of its failure to comply with the height building plane.

There is no SEPP 1 objection in respect of the cl 13 standard. It therefore follows that the question of the impact of the non-compliance with the building height plane is resolved by the criteria in cl 13 alone.

The major issues have been dealt with to a large extent in the discussion regarding the application of cl 14A and cl 13(2).

In addition to the failure to comply with the height plane control, the proposed building has more than three storeys measured vertically above any point at natural ground level contrary to cl 14A(2). A SEPP 1 objection has been lodged.

If the building height is confined to three storeys facing Wycombe Road and that height is maintained across the site, the result will be a building of only one storey along Anderson Street with two storeys below street level. There is no explanation why a building could not be stepped across the site to gain the benefit of additional height along Anderson Street.

Mr Byrnes says that, in relation to Anderson Street, the perception of height will be mainly three storeys due to the set back depth of the upper storey. Further, he says the perception of full height to Wycombe Road will be confined to the opposite side of the street where it will be read as a steeply stepped building in both the horizontal and the vertical planes where landscape breaks will allow such viewing. The council's witnesses have not agreed with this aspect of Mr Byrnes' evidence generally on the basis that the location within a conservation area reinforces the view that the urban form should relate more to the buildings and elements which are regarded as positive contributors.

The Court is not satisfied that the building will be perceived in terms of bulk as being in character with the development on the opposite side of Wycombe Road.

Although in plan it appears that the site is dominated by the towering effect of No 88 Wycombe Road and No 1 Raymond Road, only the former building is perceived as having any direct relationship to the subject land from most perspectives on the opposite side of Wycombe Road.

Furthermore, the Court has not been satisfied that the building will appear to be broken up in the way Mr Byrnes suggests and accordingly will read as a continuous horizontal mass up to six storeys high from Wycombe Road.

There are remaining issues of privacy, views and shadow impact which arise as a consequence of the non-compliance with the height control.

The Court is not satisfied that it would be unreasonable or unnecessary to apply the development standard to this particular proposal. It is not intended by that finding to foreclose the prospect that a development exceeding the three storey height limit might be accommodated on the site in other circumstances.

Clause 13A of the LEP deals with landscaping. The landscaped area means 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.

The council has taken a pedantic view that, where balconies overhang the landscaped area of lawns or gardens, that should not be regarded as making the relevant contribution to the use and enjoyment of the area.

It is proposed that the majority of significant vegetation along the Wycombe Road frontage will be maintained.

If the development was otherwise acceptable, the Court would have been inclined to exercise its discretion in favour of the applicant and allow the SEPP 1 objection in respect of, what should be regarded as, a technical breach of the development standard.

An objection has been lodged by the Neutral Bay Sports Club which is located adjacent to the subject property on the opposite side of Anderson Street. The prospective loss of amenity caused by the development along the Raymond Road frontage is, in the Court's opinion, unlikely to have any material impact on the use and amenity of the tennis courts, bowling greens and the clubhouse. Although the upper level of the clubhouse does have an elevated view across the site in a south easterly direction, this aspect is a limited one and any loss is unlikely to impair the use and enjoyment of the club's amenities. The focus of the club property is internal and the concentration is on the physical activities within the site itself. It is appropriate to note further that any development having a three storey presentation to Anderson Street is likely to have the same impact on the club property.

Finally the applicant claims that, as a consequence of the introduction of a new s 94 contributions plan, it has been unfairly prejudiced by the delay in determining the development application. Under the plan, which applied at the date of the development application, the contribution required was $180,583.20, whereas under the new plan the levy will be $329,778.20. The applicant seeks to invoke the provisions of s 94(12) of the EP&A Act by requesting the Court to amend the contribution to that payable at the time the application was before council because it is unreasonable in the circumstances to apply the current levy. This is not a persuasive argument. Section 94 contributions are formulated to deal with the cost of the provision of, or the increase of demand for, public amenities and public services within the area.

No evidence has been produced to show that the council has, in any way, acted contrary to the scheme within s 94 in determining the present level of contributions. So far as I am aware, the cases where the Court has invoked the provisions of s 94(12) are limited to where there has been an attack on the direct effect of the contributions plan itself (see for example Trehy and Ingold v Gosford City Council (1995) 87 LGERA 262).

I do not propose to make any definitive finding about whether the proposed development would affect the heritage significance of the conservation area. It nevertheless should be noted that the Court has not been convinced that the potential relationship between the new building and the properties immediately adjacent on the opposite side of Wycombe Road, which are clearly important buildings for the purpose of the conservation area, will be entirely satisfactory in terms of heritage issues.

The Court might have been persuaded to find in favour of the applicant in regard to this issue if the other issues had been resolved in its favour. However, the excessive height, the pronounced horizontality of the building and the non-compliance with the building height plane more generally contribute towards a building that is likely to be incompatible with the significance of the heritage conservation area. If the applicant had been able to answer the other criticisms, the prospect of the development complying with the provisions of cl 39(2) of the LEP would have been considerably enhanced.

For all of the above reasons the application for development consent is refused.

The Court makes the following orders:- 1. Appeal dismissed.

2. Development application No 604/99 for demolition of four existing houses, known as 78, 80, 82 and 84 Wycombe Road, Neutral Bay and construction of a residential flat building comprising 26 dwellings being seven two bedroom units, eighteen three bedroom units and one four bedroom unit over 45 car spaces at two levels is determined by refusal of consent.

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