118 Alfred Street Pty Limited v North Sydney Council

[2006] NSWLEC 62

Land and Environment Court

of New South Wales

CITATION:	118 Alfred Street Pty Limited v North Sydney Council [2006] NSWLEC 62
PARTIES:	APPLICANT 118 Alfred Street Pty Limited RESPONDENT North Sydney Council
FILE NUMBER(S):	10401 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :- Proposed consent orders .
LEGISLATION CITED:	North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002
DATES OF HEARING:	16 February 2006
EX TEMPORE JUDGMENT DATE:	02/16/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Bingham, solicitor Deacons RESPONDENT Ms R Dixon, solicitor Malleson Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

16 February 2006

05/10401 118 Alfred Street Pty Limited v North Sydney Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by North Sydney Council (the council) on 18 April 2005 of Development Application 609/04 for the redevelopment of 118 Alfred Street, Milsons Point (the site) from an existing 16 storey office tower to an adaptively re-used mixed development with limited commercial space at ground level, commercial and open areas at level 1 and apartments or part of apartments on levels 2 to 11 above.

2 In addition to adaptively re-using the existing structure, it is proposed to add an additional element to the south thus moving the overall volume of the existing structure closer to the adjacent residential building at 110 Alfred Street.

3 The matter now comes to the Court as proposed consent orders – they being consent orders that request the Court to do three things:

• The first is to uphold an objection pursuant to State Environmental Planning Policy 1 (SEPP 1) to permit the non-compliance of the proposed additions with the 40 m building height limitation contained in cl 29 of the North Sydney Local Environmental Plan 2001 (the LEP);
• The second is to uphold an objection pursuant to SEPP 1 to permit the non-compliance of the proposed additions with cl 30 (the building height envelope clause) of the LEP; and
• The third is to grant the proposal development consent subject to a standard suite of conditions that have been settled between the applicant and the council.

4 I have had the opportunity today to inspect such of the existing premises and its surrounds as are necessary for me to understand the nature of the proposed development and to hear from Ms Godbole and Mr MacLagan who are residents of 110 Alfred Street (the adjacent premises to the south) and who object to aspects of the proposed southern extension.

5 I also inspected the site from a north-facing window of Ms Godbole's premises.

6 The objections that are raised by and on behalf of the residents of the adjacent premises to the south relate to:

• Overshadowing;
• Proximity of the built form; and
• A number of privacy issues.

7 During the course of this morning's hearing, I made a number of proposals to the applicant that would improve the proposed development by addressing a number of concerns of the residents and do so without compromising the design outcomes sought. Mr Bingham, solicitor for the applicant, accepted these changes.

8 As a consequence, there will be revised plans filed to incorporate those changes. The changes are as follows:

• for units on levels 2 to 5 -- in the south western corner units, there will be 1.8 m high fixed privacy louvres to a length of 1.5 m commencing on the southeastern corner along the southern edge of the southern balcony to those units;
• In Unit 2.9 (and corresponding units on the third and fourth levels), a degree of articulation will be incorporated into the bathroom wall to soften, marginally, the view from the units in the adjacent building of the wall to the north;
• For Unit 5.1, on the fifth floor, there will also be a requirement to specify that there is a blade wall to a height of 1.8 m on the eastern face of the southern balcony of that unit; and
• Finally, there is a planter box to the southern side of the southern balcony of Unit 11.4. There will now be a requirement that that planter box continue around the corner of that balcony and along its eastern face.

9 This final change is to ensure that anybody who is enjoying a longer view to the east from that balcony will be sufficiently set back to ensure appropriate privacy for the private open space to theuppermost level of 110 Alfred Street.

10 As the non-compliances with the height and building plan controls do not impact on those privacy or separation issues, after my consideration of the SEPP 1 objections by Mr Byrnes, on behalf of the applicant, I am satisfied that, for those elements, it would not be reasonable or necessary to require compliance with the controls.

11 It was also put by Mr MacLagan and Ms Godbole that the additional overshadowing, between October and March, of the windows of a number of apartments in the adjacent premises to the south is occasioned by those areas of the additional element of the proposed building that is in breach of the height and height plane controls.

12 Mr Dixon, the Court-appointed urban design expert, has indicated that it is his professional opinion that the additional overshadowing to those windows will be of the order of 40 minutes to an hour during that period.

13 Having noted the objectives in cl 6.2 – Solar Access of the North Sydney Development Control Plan 2002 (the DCP) at (j)(ii) [which are to avoid or minimize overshadowing of northern and eastern facades of adjacent building], I also note that there is no numerical control for judging compliance with those objectives.

14 The council's position on this issue is that, although there is an increase in overshadowing of those windows, it is not so unreasonable as to require amendment to or substantial modification of the proposal.

15 Having in mind:

• the amount of sunlight which the shadow diagrams show remains; and
• the fact that the additional overshadowing is during the less critical periods of the year;
• there is no additional relevant overshadowing during the colder periods of the year; and
• there is nothing to be derived from provisions of other guidelines such as AMCORD which would render the overshadowing unacceptable

there is no reason or me to reject the SEPP 1 objections on the ground of overshadowing.

16 Mr MacLagan and Ms Godbole were also concerned about the non-compliance of the separation at the lower levels with the table that is contained in 6.2(d)(v) of the DCP which sets out desirable separations, at various levels of mixed use developments, between adjacent buildings.

17 I am satisfied that, although the separation here is non-compliant with the DCP table, there is no privacy issue now arising from the separation distances – the separation distance table being under the heading in the DCP relating to privacy. I understand that this is also the council’s position on this issue.

18 Whilst I sympathise with Ms Godbole as to the view that she will now have a bare wall some three m from her window, that view will be ameliorated, at least to a comparatively minor extent, by the articulation which is now take place in the bathroom wall of the adjacent unit in the proposed development.

19 There is, however, no privacy element that would give me any basis upon which require any increase in the separation between the adjacent premises to the south and the element of the extension of the building that causes that lack of separation. In addition, it is within an element of the building that is, in fact, compliant with the height and height plane controls.

20 Therefore, there is no valid basis upon which I would require any greater degree of separation between the proposed new southern element to the existing building on the site and the adjacent premises to the south.

21 Having regard to the totality of the various amendments which the applicant has agreed to, there is no basis upon which I could refuse the application or require further modification to it.

22 Therefore orders of Court, by consent, will be that:

1. The appeal is upheld;
2. State Environmental Planning Policy 1 objections to compliance with the provisions of clauses 29 and 30 of the North Sydney Local Environmental Plan 2001 are sustained;
3. Development Application 609/04 for the adaptive re-use of 118 Alfred Street, Milsons Point is granted development consent subject to conditions; and
4. The exhibits, other than Exhibits A and 3, are returned.

Tim Moore
Commissioner of the Court