Csquared Architects Pty Ltd v North Sydney Council
[2012] NSWLEC 1358
•21 December 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Csquared Architects Pty Ltd v North Sydney Council [2012] NSWLEC 1358 Hearing dates: 20 December 2012 Decision date: 21 December 2012 Jurisdiction: Class 1 Before: Morris C Decision: To allow issue of final orders, the applicant is directed to file amended plans indicating the works detailed in Exhibit E by 31 December 2012. The council is to file final conditions reflecting those plans by 31 December 2012.
Catchwords: Development application, alterations and additions to dwelling house, non-compliance with height controls, view impacts Legislation Cited: Land and Environment Court Act 1979; North Sydney Local Environmental Plan 2001 Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Texts Cited: North Sydney Development Control Plan 2002 Category: Principal judgment Parties: Csquared Architects Pty Ltd (Applicant)
North Sydney Council (Respondent)Representation: Mr P Clay SC (Applicant)
Mr J Merlino
HPL Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 11058 of 2012
Judgment
Csquared Architects Pty Ltd lodged Development Application No. 305/11 with North Sydney Council on 29 July 2011 seeking consent to carry our alterations and additions to an existing dwelling house at No. 10 Shellbank Parade, Cremorne. The council has refused consent and the Csquared is appealing that decision.
The appeal commenced under the provisions of s34AA of the Land and Environment Court Act 1979 and, despite agreement between the experts that amendments proposed to plans addressing the contentions resulted in an acceptable solution, the council would not enter into an agreement so the conference was terminated. The parties agreed that the matters discussed during the conciliation conference and the evidence provided during the site view could be used as evidence in the hearing. The amendments proposed form Exhibit E.
Of the contentions in the case, those pressed by the council were non-compliance with height controls and impacts on views from adjoining properties.
The proposal
The application involved partial demolition of an existing dwelling and its associated double carport and the construction of internal alterations and additions to the dwelling including new upper floor additions, excavation to extend existing floor levels at sub-floor levels, construction of a new three car garage with associated driveway and landscaping works.
The proposed changes offered by the applicant during the conciliation phase involve setting the northern wall of the proposed upper floor (level 4) back a further 2.4m, moving the upper floor and lower floor courtyards a further 1m south, extending the western wall of the main bedroom towards the boundary by 1.5m and deletion of parapets and planter boxes above the roof space of level 3 on its western side. The upper floor balcony would also be brought back from the northern elevation to address concerns of the neighbour in regard to overlooking.
The site and the locality.
The site is legally described as Lot 136 DP 10291 and known as No.10 Shellbank Parade, Cremorne. It is a rectangular shaped allotment and has street and water frontages of 15.2m, depth of 55.3 and 53.1m and area of 822.4sqm.
The site slopes from the street down to Long Bay, with the change in level being approximately 15m from the street frontage to the rear boundary.
A three storey dwelling house excavated within the fall of the site stands on the land. It appears as a single storey dwelling when viewed from the street.
The surrounding locality is residential in nature and is characterised by multi-level 3 and 4 storey detached dwelling houses, many with flat roofs and large terraces or balconies overlooking properties on the low side of Shellbank Parade so as to enjoy views of Middle harbour to the north, north-east and north-west.
Shellbank Parade is characterised by integrated double garages with formalised and retained gardens to the southern (high) side of the street with low garden walls, single storey garages and carports with dwellings and roofs visible beyond on its southern side. No 12. Shellbank Parade appears as a two storey dwelling to the street.
The landscape is characterised by formal landscape settings incorporating a mix of exotic plants and shrubs, with two large angophora trees located adjacent to the street boundaries of No. 8 and No. 12. A large palm tree is located within the front setback of the site and, as a result of discussions during the conciliation phase, is now proposed to be removed.
The planning controls
The site is zoned Residential A1 under the North Sydney Local Environmental Plan 2001 (LEP). The development is permissible with consent. The LEP contains a number of clauses that are relevant to the application including clauses that contain development standards. The relevant clauses are: 2(b), 3(a)(i), 3(b)(i) - General and Specific Aims of the LEP; 14(1) and (2) - Zone Objectives; 16(a), (b), (c) and (d) - Residential Zone Objectives, 17 - Building Heights; 18 - Building Height Plane; 20 - Landscape Area; 38 - Development within Foreshore Building Area and 39 - Excavation of Land.
North Sydney Development Control Plan 2002 also applies to the application with sections 7.2, 7.3 and 7.4 most relevant.
The application included an objection to the development standards contained in clauses 17, 18 and 20 of the LEP.
The evidence
The matter commenced on-site with evidence heard from the two adjoining neighbours and the owners of two dwellings opposite the site. The view included observation of the site from within those objectors' properties and was assisted by height poles that had been erected to indicate the location of the northern wall of the level 4 additions.
The issues raised by the objectors are in relation to proximity of balcony areas and side walls, overshadowing, view loss, bulk and scale and a concern that the height controls were not being abided by.
Expert evidence was presented by Mr J Harrison for the applicant and Mr A Martin for the council. In their joint report, based on the original plans, they agreed that there is no impact, from any of the levels within No. 9 and 11 Shellbank Parade, on the land water interface view of the opposite shore; the bulk and scale of the proposal is not an issue when the proposal is viewed from Shellbank Parade; putting aside the view issue, the bulk and scale of the proposal is not an issue when the proposal is viewed from the properties on the southern side of Shellbank Parade; the issue of bulk and scale, if there is one, is from the waterway and possibly the reclaimed grass areas of numbers 8 and 12 Shellbank Parade; that the proposal constitutes alterations and additions; the existing development does not provide the minimum quantum of landscaping (as defined) required by the LEP and the proposal will reduce this by 2.6sqm.
In regard to the SEPP 1 objections, Mr Harrison, in his expert report that is based on the original plan, Exhibit C, assesses the proposal applying the planning principle outlined in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 and says that the impact of the views from Nos 9 and 11 is negligible or minor at best. He also considers the development standard applying to landscaped area and concludes that the development is not inconsistent with the objectives of clause 20(1); maintains and promotes the character of the neighbourhood; provides useable private open space; maintains the existing landscaped buffer; will not obstruct the flow of water; maintains the existing trees on site and is of a bulk, scale and density that is in character with the area and which minimises site excavation.
Mr Martin took a contrary view in his expert report, Exhibit 2, also based on the original plans. He says the SEPP 1 objection to the height control was not well founded because the proposal departs from the height controls and therefore does not satisfy the objective of the control which is to promote the retention of and, if appropriate, sharing of existing views.
The planners agreed that the amended proposal was satisfactory in terms of built form and impacts, particularly in relation to built form. They also agreed that the amended plans provided full compliance with the council's height controls with the exception of a small area in the centre of the front wall to the upper level bedroom on level 4. The extent of non-compliance was estimated to be across an area of the building footprint no greater than 3sqm. Both experts were of the opinion that the amended plans had all but eliminated non-compliances from the council's controls and that the objectives of those controls were now achieved. In that small area where there was a breach of the height control, they agreed that there was no material impact from that location.
In regard to the change to the location of the upper floor western wall, they agreed that its siting and location were appropriate having regard to the adjoining property, No. 12 in relation to solar access and in terms of view impacts from Nos. 9 and 11 despite the widening of the building's footprint. Mr Martin noted the wall height in that location satisfied the council's controls.
Conclusion and findings
On the basis of the evidence of the experts, I am satisfied that, if the plans are amended in accordance with the details included in Exhibit E, the development is satisfactory. Whilst there will be an extremely minor breach of the height control in a small portion of the building, I concur with the experts that the breach would be immeasurable in terms of impact on views. Accordingly, I find that the SEPP1 objection to the development standards is well founded and should be upheld as the objectives of the controls are met. On receipt of amended plans that reflect the changes made to address compliance with the council's height controls, there is no reason that the development cannot be approved.
To allow issue of final orders, the applicant is directed to file amended plans indicating the works detailed in Exhibit E by 31 December 2012. The council is to file final conditions reflecting those plans by 31 December 2012.
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Sue Morris
Commissioner of the Court
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Decision last updated: 21 December 2012
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