Bogatez v North Sydney C

[2006] NSWLEC 174

Land and Environment Court

of New South Wales

CITATION:

Bogatez v North Sydney C [2006] NSWLEC 174

PARTIES:

APPLICANT
Lorraine Bogatez

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10553 of 2005

CORAM:

Murrell C

KEY ISSUES:

Development Application :- impact on adjoining properties, impact on foreshore, SEPP 1 objections, building height plane, height, landscaped area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001

DATES OF HEARING:

6/03/2006

EX TEMPORE JUDGMENT DATE:

04/06/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. Green, solicitor with
Ms J. Reid, solicitor
of Pike Pike and Fenwick

RESPONDENT
Ms E. Glancy, solicitor
of Mallesons, Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

6 March 2006

10553 of 2005 Lorraine Bogatez v North Sydney Council

JUDGMENT

1 This is an extempore judgment for a matter that has come before me this morning as consent orders. By way of background, this matter commenced on site as an on-site hearing and as consent orders and at that stage the Court heard from the neighbouring objector in terms of view loss from their premises and the Court also took the opportunity of understanding the plans further and looking at the landscaping for the proposed development.

2 The Court made the comment on-site that as a foreshore development it should be providing some canopy trees to filter views to the house from the opposite shore and to make a contribution to the regetated character of the surrounding area. The applicant has amended the landscape plan to provide Angophora Costatas as well as the retention of other mature exotic plantings which will assist in ensuring that the built form as now proposed will be mitigated in terms of viewing the subject premises.

3 The Court also had the opportunity, as I stated, of viewing the property from the adjoining premises to the north and the Court inquired of the experts on site about the possibility of a different roofline for the front of the building, in particular in the bedroom area near the balcony to retain a greater portion of the view of the distant harbour/CBD area, which is clearly an important element from the adjoining premises. It is noted, though, there are other views to the closer Shell Cove water body from the adjoining property.

4 The applicant agreed to an amended plan and the plans before me today do achieve a greater view of that portion of the harbour and the Court is satisfied that there is no reason as to why the Court should not grant approval to the amended plans.

5 The subject site is No. 11 Gundimaine Avenue, Neutral Bay. The subject site has an area of 910 sq m and the topography can be described as sloping relatively steeply away from the street down to where the site adjoins Shell Cove waterway. However it is not visible from the street itself. The driveway forms in many respects a battleaxe style development. There is currently an existing dwelling house constructed on the subject site and the proposal is for the demolition of that dwelling house and the construction of a 3-storey dwelling, double garage and pool, with vehicle parking, bedrooms and main living areas located at the upper levels and the lowest part of the dwelling is occupied by a pool and lift.

6 It was noted on site that there is in the lower portion of the proposed building what is known as a garden room, and this is one reason why the Court considered it appropriate that the existing vegetation, in particular the magnolia, be maintained to ameliorate the impacts of a black hole when viewed from the foreshore in terms of the number of storeys.

7 The locality is one that can be described as a luxuriant vegetated area with very substantial homes and there are commensurate large allotments for such dwellings. The statutory planning controls are contained within the Local Environmental Plan for North Sydney of 2001, wherein the subject site is zoned residential 2(a). The Court was taken to the objectives of the 2(a) zone and also to the various provisions, in particular cl 17, which relates to the building height, the maximum building height being 8.5 m.

8 The proposed development exceeds the maximum building height, however, council is satisfied that the objectives of the control are satisfied and the Court is also satisfied with the planting of canopy tries to filter views to the dwelling that the objectives of the development standard are achieved and the SEPP 1 objection should be allowed in the circumstances of this case.

9 The other SEPP 1 objections that were submitted to accompany the development application are with respect to the building height plane, and the building height plane is contained in cl 18 of the LEP. There is an exceedance in two portions of the dwelling in terms of the building height plane. Once again, I am is satisfied that the objectives of this control are achieved or satisfied and the SEPP 1 objection should be upheld.

10 The third SEPP 1 objection is with respect to the landscaped area, and the landscaped area controls are contained in cl 20. The proposal provides for 54.5 % of landscaped area, a 29 sq m deficiency over the total lot, and the requirement is for a 55% landscaped area. With the amended landscape plan and the inclusion of canopy trees I am also satisfied that the proposed building will sit comfortably within its landscaped setting and the objectives of the landscaped area requirement are also satisfied in the Court’s assessment.

11 As I stated, the Court had the opportunity of hearing from Mr and Mrs Ellis-Flint on site and their concerns have been taken into account in terms of the amended plan that has been submitted to the Court this morning.

12 The parties have agreed to a set of conditions, and the set of conditions also provides for a condition on the materials, colours and finishes. This is a conservation area and clearly in conservation areas sample boards should always be provided for development applications. The applicant has come to the Court this morning with a sample board and the council is satisfied that the materials, colours and finishes are appropriate for the subject site in the conservation area. The other conditions are as generally agreed to between the parties.

13 On the basis of the site inspection carried out with the parties on the first occasion the Court met and the amended plans and the statement of Ms Varley to being satisfied that the amended plans achieve council’s objectives in terms of its planning regime, the formal orders of the Court are:

1. The appeal in respect of the property known as 11 Gundimaine Avenue, Neutral Bay is upheld by consent.
2. The development application submitted to North Sydney Council and as amended shown in exhibits 7 and 8 is approved subject to the conditions contained in annexure A.
3. The exhibits are returned with the exception of 7 and 8, and the amended conditions.

___________________

J S Murrell
Commissioner of the Court
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