Cleary v North Sydney Council - [2009] NSWLEC 1437

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Cleary v North Sydney Council [2009] NSWLEC 1437
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Stephen Cleary

RESPONDENT
North Sydney Council

FILE NUMBER(S):
10646 of 2009

CATCHWORDS:
DEVELOPMENT APPLICATION :- Height, bulk and scale of 1st Floor addition to semi, inadequate setback, unacceptable streetscape impact

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001

CORAM:
Hussey C

DATES OF HEARING:
11 December 2009

JUDGMENT DATE:
30 December 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr S. Kondilios (solicitor)
SOLICITOR
Maddocks Lawyers

RESPONDENT
Ms K. Gerathy (solicitor)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Hussey C
30 December 2009
10646 of 2009 Stephen Cleary v North Sydney Council

JUDGMENT
Background.

This appeal is against council’s refusal of a development application for alterations and additions to the 1^st floor level of a semi detached dwelling at 1 Rodborough Avenue, Crows Nest.
The dwelling has been subject to previous alterations and this proposal is to extend the upper level forward of the front of the building by approximately 8m, with the front gable having a street setback of approximately 4.5m. The proposed addition is to provide a further 2 bedrooms and bathroom, resulting in a total of 5 bedrooms and 3 bathrooms. This semi will then be predominantly 2-storey.
The main issue identified for the appeal by the council is that the proposal represents an overdevelopment of the site because it is of excessive height, bulk and scale, which is uncharacteristic in scale with its attached neighbour and the streetscape.
The site
This site is described as Lot X DP 398325 and is situated on the eastern side of Rodborough Avenue, to which it has a 6.095m frontage and a total area of 276.18 sq m.
The dwelling comprises the southern part of the semi-detached dwelling, with No 1A to the north. Both dwellings were single storey until 1998 when a first floor addition was added to the subject building. No 1A remains single storey. There is a common driveway within the adjoining residential flat building (RFB) property that adjoins the southern boundary of the subject property.
This semi-detached dwelling is at the southern end of a row of 10 other dwellings to the north that are of a similar era to the subject building. There is an eclectic mix of residential flat buildings, schools and part commercial premises in the near vicinity of the subject property.
Planning controls
The following planning controls are relevant. Firstly, the North Sydney LEP 2001; under which the site is in the Residential C zone and the proposal is permissible with consent.
The general aims of the LEP are contained in cl 2, together with the specific aims in cl 3 as follows:
3(a) In relation to the character of North Sydneys neighbourhoods, to:
(i)promote the character of the neighbourhood and development which is compatible with neighbouring development in terms of bulk, scale and appearance,…
(b)(i) protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development, and
(ii)maintain and provide for an increase in dwelling stock, where appropriate…
Clause 14 requires the consent authority to take into account the aims and objectives of the plan and consent must not be granted to the carrying out of any development that is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of the controls. A range of developments is permitted in the Residential C zone.
Division 2 of the LEP contains the various residential zone objectives, which includes:
(c)buildings that are compatible with their immediate neighbourhood.

Clauses 17 contains the building height controls and relevantly includes:
17(4)Where the characteristic building height is one storey, a building must not be erected, in a residential zone, in excess of 5.5m in height at the street façade or 8.5 metres in height.
A building height plane (BHP) control is included in cl 18 (3) (a).

The other associated planning controls are contained in the North Sydney DCP 2002, wherein the following controls are of particular relevance in this matter.
•Building Height Plane (BHP);
•Setbacks;
•Height.
The DCP identifies a number of different residential neighbourhoods, which provide a range of accommodation for a diverse community. The subject property is within the Cammeray Character Statement area. The DCP also states:
Although North Sydney’s residential neighbourhoods have many positive attributes there are threats in terms of the nature of development, increased traffic, degradation of the residential and natural environment, reduction of amenity for residents and loss of village atmosphere. Much of the residential development since about 1960 has been out of context with the recognised character of North Sydney’s residential neighbourhoods – such as high-rise buildings with a larger than normal footprint, little usable landscaped area and loss of tree canopy.
The following development controls are relevant in this matter:
7.3Quality Built Form
To respond to their local context buildings need to be designed to fit within the existing topography and relate to the rhythm and pattern of characteristic buildings in the streetscape. A comfortable and memorable streetscape will be one where no one building or feature dominates.
o7.3 a.                Site layout and building design responds to the existing characteristics, opportunities and constraints of the site and its context (adjoining land and locality).
o7.3 e(ii).          Siting of building matches siting described in the character statement or if not identified in the character statement that relates to neighbouring buildings.
o7.3 h                 The size of new buildings is consistent with surrounding characteristic buildings and is not significantly larger than characteristic buildings.
o7.3 i                  Built form character
i.       Where a building is part of a uniform group of buildings of similar character locate any additions or alterations to the rear and not visible from the street or any public place.
o7.3 k                 Characteristic roof shape …
i.       Use a pitched roof, except where another roof form is identified in a character statement for the neighbourhood as being, or as being compatible with, the characteristic roof form for the neighbourhood.
The evidence
Detailed evidence was presented in a joint planning report by:
•Mr B Lusher; Council’s team leader for assessments,
•Mr D Crane, Applicant’s town planner.
The planners initially discussed a preliminary point concerning the accuracy of the plans. This point was considered relevant because a previous alteration was not carried out in accordance with the approved plan. Consequently that resulted in the construction of a different roof pitch at the front of the dwelling and incorporated a part blank wall to the street frontage, which presented as bulkier to the street. The current plans then indicate a discrepancy in the order of 200mm in the ridge height. However this aspect was reviewed by Mr Crane and assessed in the overall context of the impacts of the development, based on the evidence of the planners.
It is apparent that the controls recognise the existing variety of buildings within the different neighbourhoods and how some are of unsympathetic design with the “recognised character”. Accordingly, Mr Lusher assessed the character of Rodborough Avenue in the following 3 contextural elements:
The multi storey buildings to the south that have a primary frontage to Falcon Street (Nos 152 & 168 Falcon Street);
The buildings on the western side of Rodborough Ave (Nos 148 & 150 Falcon Street and Nos 2 & 8 Rodborough Ave);
The row of buildings on the eastern side of Rodborough Ave (Nos 1 – 11 Rodborough Ave), which includes the subject site.
Mr Crane however takes a broader view of the context of the neighbourhood. He considers that the surrounding 2, 3, 4 buildings are contextually relevant. He also considers the proposed addition is compatible with the desired future character and evolving built form of dwellings which is 2 storey.
In my assessment, the determination of these different neighbourhood context descriptions is a fundamental matter. Whilst I accept there is a variety of development surrounding, I consider Mr Lusher’ assessment is more realistic relative to the controls in cl 7.3 of the DCP.
On this basis, the subject property forms part of the row of 11 dwellings houses that exhibit a high degree of consistency. As such this built form exhibits a rhythm and pattern of characteristic buildings that can be considered apart from the other larger RFBs and commercial buildings. Furthermore, I consider this pattern of buildings results in a “comfortable” streetscape impact.
Consequently, I do not rely on Mr Crane’s broader view that all the larger buildings should be considered in the local street context. It seems to me that the controls specifically seek to avoid the impacts likely to arise from adopting some of the 1960s type RFBs as some form of benchmark. Also his opinion that the desired future character is most likely to result in more larger buildings due to the redevelopment of the row of 11 dwellings seems speculative only. No substantive evidence supporting this assertion was presented and I consider that Mr Crane’s opinion should be discounted accordingly.
In terms of the contentious elements, the building partially exceeds the height controls stated in cl 17(4) of the LEP. Insofar as a SEPP 1 objection was lodged, I accept that the terms for “characteristic building height” and determination of “street façade” are not defined in the LEP. However I note that the non–compliance apparently does not cause any material impacts. Nevertheless it seems to me that where there is a variation to a development standard, its approval depends in part on whether a complying development would achieve the underlying objectives. In this case, I am satisfied such complying development would achieve the objectives and that would lead to the disallowance of the SEPP 1. But I have also considered the following merit matters, the cumulative effect being such as to otherwise warrant refusal of the application.
Whilst I then accept that there is general compliance with the overall height controls, the area of main concern is with the front elevation presentation. In this regard, I am inclined to rely on Mr Lusher’ opinion that the prevailing height is the single storey height established by the immediately adjoining 10 remaining dwellings, which in this case provides an appropriate guide to the characteristic building height. Consequently the characteristic building height is 1 storey and the proposal is not consistent with this. Whilst I do not consider that the non-compliance with this control automatically results in the refusal of the development, it is a negative aspect in terms of compliance with the development controls. Nevertheless, I have considered the other quantitative and qualitative controls.
One such control is the BHP provisions, whose application shows there is a breach along the northern and southern elevations. I am inclined to agree with Mr Lusher that in the circumstances of this case, that as the proposal concentrates further 1st floor development forward of the front building line and closer to the street, it will create a building form that is out of keeping with both its single storey neighbours and the subject semi-detached pair of dwellings. In my assessment this is another negative aspect of the proposal and not consistent with the intent of the controls.
As I have previously stated, I am satisfied that this dwelling forms an important part of the consistent row of 11 dwellings. Any alterations are of particular concern because of its location on the end of the row and adjacent to the open driveway, which affords significant viewing opportunities from various street locations. The LEP controls seek to ensure the appearance of development protects and enhances the amenity of the neighbourhood.
Even though I have some difficulty in interpreting the plans due to the lack of clear dimensioning, I consider there is a major deficiency with this application because it does not show elevations of the combined semi-detached dwelling to enable assessment of the cumulative streetscape impacts. This inadequacy is not in accord with the provisions of cl 7.3 (a), which requires a full site analysis to be undertaken. Accordingly, I accept Mr Lusher’ opinion that this deficiency has resulted in the constraints of the existing roof form not being adequately addressed.
In this regard, I have noted that the previous application does not comply with the approved plans, resulting in an unsympathetic blank wall presentation to the street. In my assessment such similar outcomes should be avoided.
Mr Crane agreed that the existing roof form of the semi is an important and obvious building element in the streetscape presentation and that the current roof has a complicated form. I therefore have some difficulty in accepting his opinion that the proposed roof form is acceptable because he considers it will be mostly concealed. It seems to me that there will be more blank, 1^st floor walls constructed to enable this non-complying addition to the front of the building. Mr Crane did admit that it is usual practice to consider a detailed plan/elevation of both semis to assess compatibility and impacts.
The DCP controls in section 7.3 (k) are explicit in requiring characteristic roof shapes of the neighbourhood to be used. The DCP indicates that the appropriate roof pitch would be in the order of approximately 28 – 36 degrees. However the proposed roof pitch is in the order of 23 degrees and I agree with Mr Lusher that this would appear incongruous and uncharacteristic in the context of the of the other comparable roof forms.
Furthermore, I also accept Mr Lusher’ opinion that the proposed scheme would eliminate entirely the original roof form of the pair of semis, which is a cohesive element in the streetscape. Consequently, I consider the proposed streetscape presentation would not protect and enhance the visual amenity to a degree intended by the controls.
Conclusion
Having considered the evidence, the submissions and undertaken a view I do not consider this application merits consent.
It is apparent to me that there is a raft of controls that seek to direct new residential development to be of a scale that is compatible with the immediate neighbourhood, so as to protect and enhance the existing amenity. These controls also recognise that some buildings from the 1960s are unrepresentative of the desired future character of the neighbourhood.
Based on this premise, I am satisfied that the unsympathetic RFBs should be set aside, together with the (landscaped) commercial buildings so that the appropriate benchmark for compatibility is the row of characteristic buildings comprising the 11 adjoining dwellings, which have a degree of consistency that provides an acceptable rhythm in the streetscape, in my assessment.
My assessment is that the approval of the proposal would result in the 1^st floor extensions, forward of the existing front elevation and with a setback of approximately 4.5m to the front gabled façade with excessive floor space compared to the neighbouring dwellings. I agree with Mr Lusher that this will be highly visible and that it will be considerably larger than the adjoining semi to an extent that its 2 –storey form fails to satisfy the controls for consistency with surrounding characteristic buildings.
In particular, the built form character controls in the DCP provide that where the building is part of a uniform group of buildings of similar character, then any alterations and additions should be located to the rear and not visible from the street or any public place. There was some discussion about the possibility of any additions being confined to the rear of the building, and on my understanding of the evidence this may be feasible if additional room is required. I do not consider any compelling reasons were given to set aside these locational controls.
In the ultimate, I do not consider this application reasonably satisfies the relevant controls so as to comply with the zone objectives that any development is to be compatible with neighbouring development so as to promote and protect the residential amenity of this neighbourhood. This application therefore fails.
Court orders
The Court Orders:
1 The appeal is dismissed.
2Development consent to DA 128/09 for alterations and additions at the front of the semi - detached dwelling at 1 Rodborough Avenue, Crows Nest is refused.
3 The exhibits may be returned except for A, B and 2.
________________________
R Hussey
Commissioner of the Court
ljr

AMENDMENTS:

02/03/2010 - incorrect spelling of Council's Town Planner's name - Paragraph(s) 18, 20, 24, 27, 30 and 35