Argent v North Sydney Council
[2011] NSWLEC 1171
•28 June 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Argent & Anor v North Sydney Council [2011] NSWLEC 1171 Hearing dates: 27 June 2011 Decision date: 28 June 2011 Jurisdiction: Class 1 Before: Morris C Decision: (1)The appeal is dismissed;
(2)Development Application DA162/10 for alterations and additions to an existing dwelling at No 74 Ellalong Road, Cremorne to create a two storey dwelling with basement, new swimming pool, double carport, front fence and landscaping is determined by the refusal of development consent; and
(3)The exhibits, other than Exhibits 3, D and H, are returned.
Catchwords: Development Application - Building Height Plane - Overshadowing - Bulk & Scale - Tree removal - SEPP 1 objection Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
North Sydney Local Environmental Plan 2001Cases Cited: Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827Texts Cited: North Sydney Development Control Plan 2002
Macquarie DictionaryCategory: Principal judgment Parties: Peter and Lynette Argent (Applicants)
North Sydney Council (Respondent)Representation: Mr M Driscoll (Applicant)
Mr P Marincowitz (Respondent)
BCP Lawyers & Consultants
Sparke Helmore
File Number(s): 10396 of 2011
Judgment
This is a determination of proceedings pursuant to the provisions of s34AA(2)(b)(i) of the Land and Environment Court Act 1979 in relation to the refusal by North Sydney Council (the council) of Development Application DA162/10 (the application) which proposes the alterations and additions to an existing dwelling at No 74 Ellalong Road Cremorne (the site) to create a two storey dwelling with basement, new swimming pool, double carport, front fence and landscaping. The contentions between the parties were narrowed during the conciliation process however were not completely resolved and accordingly, the conciliation process was terminated and the matter proceeded to hearing.
The site and locality
The site is located on the western side of Ellalong Road near the intersection with Wyong Road and Macpherson Street. It has a frontage of 14.2 m, depth of 38.1 m and site area of 534.2 sq m and falls from the road to the rear. A single storey dwelling house with a more recently constructed two-storey addition to its rear is currently located on the site. A vehicle driveway runs along the northern boundary of the site.
Ellalong Road contains single storey and two storey dwelling houses and is an area in transition with major alterations and additions having been carried out to the majority of homes within the vicinity of the site. Dwellings to the north and south of the site are two storeys. Carports forward of the building line and high front boundary fences are evident along the street.
Background and the proposal
It is proposed to retain the main front and side perimeter walls of the original dwelling and erect a basement area below the rear two-thirds of the existing building footprint, a second storey above and a part one and part two storey addition to the rear. The upper level works include a rear deck with planter box surrounds. A double carport is to be erected within the building alignment of the dwelling and a swimming pool in the southwestern corner of the site. Front boundary fencing 1.2m high is proposed. The application also seeks approval to remove a camphor laurel tree, which is located in the northwestern corner of the site and a plan, which depicts the proposed landscape treatment, was tendered during the hearing. That plan is acceptable to the council with the exception of the proposed removal of the camphor laurel.
The council resolved to refuse the application at the council meeting held on 2 May 2011 for the following reasons:
(1) The bulk and scale of the building at the rear is excessive with regard to the upper level western corner, balcony and surrounding planter.
(2) The proposal substantially breaches the landscape control pursuant to Clause 20 of North Sydney Local Environmental Plan 2001 (the LEP) and the SEPP 1 objection is not well founded and cannot be supported.
(3) The proposal substantially breaches the building height plane controls pursuant to Clause 18 of the LEP and the SEPP 1 objection is not well founded and cannot be supported.
(4) The proposed swimming pool is within 1200mm of the rear boundary contrary to the North Sydney Development Control Plan 2002 (the DCP) and insufficient detail has been provided with regard to landscape screening along the site boundaries.
(5) The proposal causes material impacts through overshadowing of the neighbour.
The planning controls
The site is zoned Residential A1 pursuant to the provisions of the LEP. The particular objectives of that zone are:
(a) maintain lower scale residential neighbourhoods of mainly detached housing, and
(b) assist in the conservation of heritage and other sensitive areas, and
(c) minimise the impact of non-residential uses and ensure these are in character with the zone.
The proposal would be permitted with consent.
In addition to the individual zone objectives, the LEP includes particular controls for residential development. Those relevant to the application are the building height plane control (clause 18) and the landscaped area control (clause 20) and those sub-sections which apply 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, and projected at an angle of 45 degrees, 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.
20 Landscaped area
(1) Landscaped area objectives The specific objectives of the landscaped area controls are to:
(a) promote the character of the neighbourhood, and
(b) provide useable private open space for the enjoyment of residents, and
(c) provide a landscaped buffer between adjoining properties, and
(d) maximise retention and absorption of surface drainage water on site, and
(e) minimise obstruction to the underground flow of water, and
(f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and
(g) control site density, and
(h) minimise site disturbance.
Landscaped area controls for residential A1, A2, B, C and F zones Development must not be carried out in the residential A1, A2, B, C, or F zone, if (because of carrying out the development) the percentage of any site area that is landscaped area is less than the minimum percentage for the site area as specified in the following Table:....
Landscaped area requirements
Site area
Landscaped area as a percentage of site area
500 sq m or more but less than 600 sq m
52 %
The DCP provides controls in relation to the siting of swimming pools. As a result of the joint conferencing between the town planning experts, it was agreed that the size of the proposed pool could be reduced to achieve the required landscaped area and accordingly this contention was not pressed.
The issues
The matters remaining in contention are:
(1) The bulk and scale of the building at the rear.
(2) The breach of the height plane control and the overshadowing impacts caused from that breach.
(3) The privacy impacts associated with the proposed side door to service an existing bathroom.
The evidence
The matter commenced on site where an inspection of two adjoining properties was conducted in the company of the parties' experts and the owners of those properties. The Court was shown the living areas of No 72 Ellalong Road and the likely impact of the proposed building works in relation to solar access to those areas was discussed between the experts. The location of the proposed doorway was also viewed and the concerns of the owners heard in relation to perceived impacts on their privacy. Observation of the site was also undertaken from the upper level main bedroom where the owners provided evidence of their concerns regarding building bulk, impacts on privacy from the proposed upper floor deck and the loss of the tree which they say provides amenity to the area, is a haven to birdlife and screens a tall sewer vent.
An inspection of No 74 Ellalong Road followed and again, inspection of the interior of that residence was undertaken and evidence heard from the owners of their concerns, which primarily related to privacy impacts from the proposed deck and the impacts from the removal of the tree, particularly with regard to a liquidambar which is located on their property in close proximity which they believe may be compromised if the tree is removed. They too support retention of the tree due to its amenity, attraction to birdlife and screening of the sewer vent.
Evidence was then heard on site from two owners of the properties to the west, which have frontage to Ryries Parade. The owner of the land immediately to the west spoke in support of the application and of the removal of the tree. The owners to the northwest spoke of their opposition to the tree removal as they say it provides privacy to their property. The site inspection concluded with a view of the site, the tree and the location of the proposed building works and pool and the relativity of levels with regard to the adjoining properties.
Following the site inspection the matters raised on site were discussed and various options to address the concerns raised however, no agreement was reached and the conciliation phase was terminated and the matter proceeded to hearing.
Expert evidence was heard from Mr Barwick for the applicant and Mr Mossemenear for the council. The experts agree that the size of the proposed balcony, its location off a bedroom and the setbacks provided ensures that privacy is not an issue. They also agree that there is a breach of the building height plane for both the rear single level component and the two-storey section of the proposed building. The extent of the breach to the building height plane was agreed by the experts and drawn on a section plan that had been tendered as Exhibit H in the proceedings. Both experts agree that the proposed breaches should be assessed against the performance criteria contained in Clause 18(5) and the objectives in Clause 18(1) of the LEP.
Both experts agree that the impacts of the proposed development are to the adjoining property No 72 Ellalong Road however, they disagree as to the extent of that impact and whether the impact is material. They also agree that the 'living areas' of that dwelling which need to be considered comprise the rear portion of the ground floor section and that comprises what was designated on the plans approved by the council for alterations and additions to that dwelling in 2009 as the family, dining, kitchen, TV/lounge area and the external covered deck. It was apparent during the inspection of the residence undertaken by the Court that the use being put to those areas differs from that shown on the plan and the area designated as the family room is now used as a dining area and the area designated for the dining area now forms part of a larger lounge area.
The 'living areas' of No 72 Ellalong Road benefit from a number of windows and glazed doors and for the purposes of discussion, the use of the dwelling as it was viewed is discussed. The main living area has a bay window at the eastern end of the area and a smaller window at the western end within the northern wall facing the side boundary and the site. French doors provide access from the living area to the deck in the western wall of that living area. A second set of doors provide access to the deck in the northern wall of the dining area and a large window is provided to the western wall of that dining area. A smaller south facing window services the kitchen area.
The extent of overshadowing as a result of the proposed works was detailed in shadow diagrams included in the town planning experts' joint report. The experts agree that the development has no impact on solar panels and that the solar access required to private open space is met. They disagree on whether compliance with the required control to living areas is satisfied.
Mr Barwick considers that the breach of the building height plane for the rear section of the building is minor and whilst he acknowledges that the breach is more significant for the two storey component he does not consider that it results in any material impacts. He supports the objection to the development standard that was submitted in regard to the variation of the building height plane control and says that the impact must be measured when guided by the DCP consideration of solar access. These guidelines at Section 7.2f require that development is designed to provide at a minimum, three hours of solar access between 9 am and 3 pm on 21 June that allows solar access to solar panels, main internal living areas, and the principal private open space areas. He says that the windows to the dining area and family area (western extent of the now living area) receive sunlight from 10 am to 3 pm and therefore the development has been designed to comply with the DCP requirements. When the shadow impact of the side boundary bay window is considered, he make the observation that the window is a side window to a TV/lounge room, it provides a secondary source of sunlight to the living zone of the dwelling and that the rear facing side glazing panel of the bay window receives sunlight from approximately 12.30 pm to 3.00 pm so receives 2.5 hrs of sunlight in mid-winter. He concludes that under these circumstances the impact of the works in not material.
Mr Mossemenear says the consequence of the breach to the building height plane is an unacceptable overshadowing impact to No 72 Ellalong Road, particularly with regard to the recently installed side bay window, which, on the evidence of the owners of that property was installed to provide additional light to the living area. He says that the window currently has direct sunlight from 10 am to 2 pm in midwinter, that the proposed dwelling would overshadow the bay window from before 10 am to 1 pm and that the available sunlight would be reduced from 4 hrs to 1 hr and concludes that the overshadowing of the subject bay window is both a material and unacceptable impact.
Mr Mossemenear suggests that it would be possible to relocate the proposed ensuite to the upper floor main bedroom so that the bay window retains 3 hrs sunlight. In addition, he suggested that the southern planter box, which surrounds the proposed deck, be deleted and the lower roof area above the proposed living area be extended but increased in height to 3.0 m from the currently proposed 2.4 m. Those and similar options were put to the applicant not only during the conciliation phase, but on evidence provided by the council and agreed, prior to determination of the application by the council however were not accepted.
Mr Barwick advises that the option in relation to the redesign of the rear deck and lower roofed living area would have a more detrimental impact on the adjoining property that is proposed as he says the design has been thoughtful in reducing the bulk and scale of the development through a change in floor level, unlike the two adjoining properties.
With regard to the proposed side door, evidence was provided that it is intended to facilitate access to the bathroom area by persons using the pool to avoid the need to access that area through the main living areas of the dwelling. The proposed doorway is said to be a solid door and would replace existing obscure glass windows to the current bathroom. That room is to be enlarged as part of the application however no details of how the room is to receive light and ventilation are provided. It was evident from the inspection of No 72 Ellalong Road that the proposed doorway is immediately opposite the bay window to the living area of that dwelling. The applicant proposes a 1.5 m high screen inside the property boundary along the landing and stairs, which would service the doorway. The residents of the adjoining property do not consider that such a screen would protect their privacy and that the light and noise associated with the use of the door would result in loss of amenity. The applicant argues that the use of the door would be limited and that the screen would provide adequate protection to ensure no impacts.
Mr Barwick says that the occasional use of the side door would not have a detrimental impact of the adjoining dwelling and does not accept that the privacy screen that would project 500 mm above the proposed 1.8 m high boundary fence would be objectionable or unreasonable and says that it raises no privacy concerns or unacceptable outlooks from a side elevation TV room. Mr Mossemenear disagrees and says the door access should be deleted.
The applicant has submitted an arborist's report is support of the application for tree removal. That report describes the camphor laurel tree as being "in good health, although in fair to poor condition. The tree (tree 2) shares a crown with the neighbours' tree and removal may expose the neighbours' tree to increased wind loading to the west side of its crown." It concludes that "Whilst the removal of Tree 2 is supportable based on its condition, the impact of removal on the crown stability of Tree 1 (the liquidamber at No 76) may create conditions conducive to branch failures. Whilst the council's Landscape Development Officer did not object to the removal of the tree, it is apparent from the evidence of residents that it provides a level of amenity.
Conclusions and findings
Determination of the application and the objection to the development standards contained within clause 18 of the LEP pursuant to the provisions of State Environmental Planning Policy No 1 (SEPP1) must take into consideration the aims and objectives of SEPP1 and the LEP. I must have particular regard to the provision of subclause 18(5) of the LEP which states that c onsent must not be granted pursuant SEPP1 for the erection of a building, any part of which exceeds a building height plane set by that clause, if the building would materially overshadow any existing or new property.
The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are asked. Those questions are as follows:
1. Is the planning control in question a development standard?
2. What is the underlying object or purpose of the standard?
3. Is compliance with the development standard consistent with the aims of the policy and, in particular, does compliance with the development standard tend to hinder the attainment of the objectives specified in section 5 (a)(i) and (ii) of the Environmental Planning and Assessment Act 1979?
4. Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? and
5. Is the objection well founded?
Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 comprehensively examines the requirements to uphold an objection under SEPP 1. His Honour states that:
38 First, the Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1). The objection is to be in writing, be an objection "that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case", and specify "the grounds of that objection" (clause 6 of SEPP 1)......
At [42] to [43], His Honour then proceeds to discuss ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard...
43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
The parties agree that the building height control plan is a development standard and that the objectives of that standard are as set out in clause 18(1) (a), (b) and (c) of the LEP. The applicant contends that the answer to question 3 as posed in Winten is that it complies with the aims and objectives of SEPP1 and would not hinder the attainment of the objects of the Environmental Planning and Assessment Act 1979 (the Act). The council provided no evidence in this regard and I agree with the applicant.
With regard to the final two questions, I need to consider whether compliance with the standard is unreasonable and unnecessary in the circumstances of the case and if the objection is well founded. In addition, in accordance with the requirements of clause 18(5) of the LEP, I have a sixth question and that is whether exceedance of the building height plan would materially overshadow, in this case, any existing property.
Mr Marincowitz for the council referred me to the Macquarie Dictionary definition of 'material' and importantly, that part which states:
1. To an important degree; considerably.
2. with reference to matter or material things: physically.
Having considered the evidence provided and my assessment of the impacts of the proposed development on the adjoining property No 72 Ellalong Road, I consider that the overshadowing impacts would be material and the objectives of the standard are not met. The applicant has not proffered an alternate means of achieving the objective of clause 18 of the LEP. For these reasons, I find that the objection to the development standard for building height plane is not well founded and would be contrary to the provisions of clause 18(5) of the LEP. That finding means that consent cannot be granted to the application.
Should I be wrong in this regard, I also consider the remaining contentions.
With regard to the bulk and scale of the rear deck and planter box area, I prefer the evidence of Mr Barwick and do not consider that there would be any utility from the increase in height of the side/southern wall of the rear living room and the deletion of the planter box which surrounds the proposed deck.
I agree with the views of those residents who say the camphor laurel tree provides a level of amenity to the area and also assists in screening a substantial sewer vent. Due to the likely impacts to the tree on the adjoining land and the lack of evidence that the roots of the tree are likely to cause any damage to adjoining properties, there is no reason to support its removal.
Based on my assessment of the evidence and my determination to disallow the SEPP1 objection to the building height plane development standard, the orders of the Court are:
(1) The appeal is dismissed;
(2) Development Application DA162/10 for alterations and additions to an existing dwelling at No 74 Ellalong Road, Cremorne to create a two storey dwelling with basement, new swimming pool, double carport, front fence and landscaping is determined by the refusal of development consent; and
(3) The exhibits, other than Exhibits 3, D and H, are returned.
Sue Morris
Commissioner of the Court
Decision last updated: 30 June 2011
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