Delbant Pty Limited v North Sydney Council (No 2)

[2006] NSWLEC 517

Land and Environment Court

of New South Wales

CITATION:	Delbant Pty Limited v North Sydney Council (No 2) [2006] NSWLEC 517
PARTIES:	APPLICANT Delbant Pty Limited RESPONDENT North Sydney Council
FILE NUMBER(S):	10826 of 2005
CORAM:	Moore C
KEY ISSUES:	Development Application :-
LEGISLATION CITED:	North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002
CASES CITED:	Delbant Pty Limited v North Sydney Council (2005) NSWLEC 657; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	6 and 7 July 2006
EX TEMPORE JUDGMENT DATE:	07/07/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor Pike Pike & Fenwick RESPONDENT Mr A Galasso, barrister INSTRUCTED BY Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

7 July 2006

10826 of 2005 Delbant Pty Ltd 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) of Development Application 555/2004, for development at 10 Penshurst Avenue, Neutral Bay (the site), involving demolition and removing of an existing tennis court and associated concrete slab structure and supporting columns; the erection (as originally proposed) of a single new dwelling across four levels; associated landscaping; and a right-of-way, 3.5 m wide with a driveway, proposed along the western side of the site for vehicle access (from the Penshurst Avenue entry to the south) to the property at 27 Harriett Street, located to the north – the Harriett Street property being in the ownership of persons commercially associated with the applicant in these proceedings.

2 I note at this stage, that the applicant has expressly abandoned that element of the development application relating to the proposed right of way. I have not considered it, and it is not to be part of any consent arising from these proceedings. Indeed, I note that the landscaping plans agreed to, in broad principle, between Ms Varley, on behalf of the council, and Ms Sonter, on behalf of the applicant, will have two trees that will grow to substantial height – with those trees to be planted at the northern end of the area which was originally proposed to be the right of way.

3 The matter comes for determination in unusual circumstances, as a consequence of a preliminary decision given in this matter by Preston CJ in Delbant Pty Limited v North Sydney Council (2005) NSWLEC 657, determining the meaning of a phrase, existing ground level, used for definitional purposes in the North Sydney Local Environmental Plan 2001 (the LEP), and how that would relate to the photogrammatic map extract relevant to the site linked through that condition,.

4 The logical conclusion of his Honour’s findings was that, as the photogrammatic map depicted the surface level of the tennis court as being the existing ground level for the relevant purposes of the LEP and also showed a steady slope from the eastern edge of that tennis court slab, to the boundary of the property, those were the ground levels against which building height and building envelope controls were to be determined, and therefore considered in these proceedings.

5 The consequence of that decision was that the plans which were originally submitted to me for consideration, involved a proposal for a four level dwelling with:

• two bedrooms located at a level that was notionally underground – in terms of Preston CJ’s decision;
• substantial living areas at the first level above that;
• a large bedroom on the third level from the bottom; and
• a studio bedroom with en suite in the roof form.

6 Those plans were consistent with the building height controls, derived from the application of the definition in the LEP.

7 Nonetheless, general planning considerations, including those contained in the various objectives of the LEP, also remained in play concerning bulk and scale and building form.

8 During the course of the proceedings, there was a deal of discussion as to possible amendments to be incorporated in the plans. As a result of those discussions, a number of amendments were proposed to the plans that will have benefits to varying of the residents in the vicinity when compared to the proposed compliant building that was the original amended proposal before me.

9 I propose to note, at this stage, the changes that have been made and accepted before turning to deal with the outstanding issues that require my determination.

10 I turn first to the lowest level. The changes that occur to this level are consequential on the changes to the level that occur immediately above and essentially involve an alteration to the staircase between that level and the level immediately above; a modest rearrangement in that element of the building that services bedroom 2; and some minor additional excavation into the sandstone. It was the evidence of Mr Pickles, executive planner on behalf of the council, that that proposed additional excavation was satisfactory.

11 At the next level up, the changes that are proposed include the removal of two of the bi-fold doors (that is, one folding element from each of the doors) proposed to lead from the living/dining room to the terrace; the creation of a planter box along the eastern edge of that terrace (returning on its southern flank and linking to a further planter box in front of the study); the study being reconfigured so as to comprise, in effect, a separate habitable room, rather than being a study alcove as had been provided for in the original plans with an increase in the area of that; and a decrease in the planter box area immediately to the east of the study.

12 There remain a number of matters in contention, at this level, relating to the glazing and terrace area, and to the layout of the study. I propose to return to those later.

13 At the now top level, there is to be a removal, effectively in its entirety, of that element of the proposed eastern roof terrace, which directly addresses the residents immediately to the south. It also includes the removal of the staircase, which had been intended to access the studio room in the roof; the relocation of the doors accessing the eastern terrace, so that persons debouching onto that terrace will now do so through the area where the staircase to that studio room had been proposed to be located; and there now to be no element of terrace, immediately adjacent to the direct south facing wall of that staircase and hallway area - that has the effect of preserving elements of the view corridor from the Fletcher house at 8 Penshurst Street whilst also ensuring that there are no privacy impacts by looking back from persons accessing what was otherwise to be described as a widow’s walk to access that eastern terrace.

14 The windows to bedroom 1 are to be reconfigured so that they do not open onto the planter box that is to be in front - directly to the east of bedroom 1. Those windows are to be at a 700 mm sill height and that planter box is to be landscaped so that it is not capable of being used in any formal or informal fashion as a trafficable area. A planter box is also to be incorporated along the eastern edge of the eastern terrace and returning along the southern side of that terrace.

15 I also note that the applicant has agreed that the three windows on the western face, which are to the hallway, the dressing room/wardrobe area of bedroom number 1 and the bathroom of bedroom number 1 are to be of obscure glazing.

16 Finally, the applicant has agreed to the deletion of the studio room and its associated facilities in the roof.

17 Those changes left a number of matters which I was required to determine in these proceedings.

18 I heard evidence during the course of the view from a number of the residents, and had the opportunity to inspect their aspect to the proposed development. The first of those concerns I turn to are those raised by, what I might describe as the residents who are below the site, that is on Shellcove Road, at Nos. 38, 40 and 42. Evidence was given by two residents of 38 Shellcove Road - Ms Anthes onsite and by Mr Nicholson today in court.

19 Primarily, their concerns relate to the useability of the terraces off the living room and bedroom 1 and the potential impact on their privacy.

20 I am satisfied that, save with one minor respect, there is not required to be any further change to those terraces. I reach that conclusion for these reasons:

• although a person standing with their toes at the edge of the planter box on either of those terraces, would be able if they so chose to look:
• directly into the backyard of the residents at 38 Shellcove Road; and
• partially, obliquely (although substantially screened by a Moreton Bay fig tree), to the adjacent residence to the south; and to some part of the backyard of the residence of 42 Shellcove Road (I would have thought with considerable difficulty),

the separation distance is in excess of 35 m, and on any conventional planning basis, that is a more than acceptable and appropriate degree of urban separation for privacy purposes.

21 I am also satisfied that the dominant view that will attract the eye of any person, standing on those terraces, is going to be to the water and to the shoreline to the east.

22 It is long established in this Court that it is reasonable to assume that there will be a degree of appropriate, neighbourly behaviour between adjacent residences, and that there will be some mutual respect for privacy. That is based on general community standards, appropriate to be applied in these circumstances.

23 I am satisfied that to require any further additional alterations to the terrace, at the bedroom level, would be unreasonable.

24 Save with the exception of the chamfering of the corners of the planter box – which I am satisfied, despite the evidence of Messrs Smith and Pickles, would be an appropriate presentational method of softening the view of the premises, when viewed from below, it is not necessary to reduce the area of the terrace area coming from the living and dining room any further. This area has been reduced from some 30 sq m of trafficable area, to some 20 sq m of trafficable area. That reduction, I am satisfied, meets the objectives of the provisions of the North Sydney Development Control Plan 2002 (the DCP) at s 7.2(I)(iv) in an appropriate and satisfactory fashion.

25 I am also satisfied that, although there is a non-compliance with the glazing requirements, which requirements limit the amount of glazed surface on any face of a building to fifty per cent, it would be unreasonable, under the circumstances, to require there to be a further reduction of the glazed area for the doors leading from the living/dining room to the terrace. I have reached that conclusion because I am satisfied that there is no appreciable impact that that glazing intrinsically causes to any other person nor, except on very distant views from the Cremorne Point area, would the extent of such glazing, be able to be viewed.

26 I am also satisfied, even though the sight line section provided by Mr Smith was not to scale, that the likelihood of there being any viewing of the full extent of the glazing at that level, from any property below, is remote.

27 I am also satisfied that the significant reductions in area of the terrace at what will now be the uppermost level of the dwelling, in conjunction with the planter boxes that are to be required at that level and the removal of the internal access to that planter box, is an appropriate response to an impacts which might have occurred from the earlier design.

28 I now turn to the question of noise impact from those two terraces - that being a matter I am required to have regard to, pursuant to s 7.2(h) of the DCP. I am satisfied that, although it is possible that there will be (and, indeed, on the evidence of Ms Anthes, will be) aural impacts that the reduction in the trafficable floor area of those two terraces constitutes an appropriate and acceptable response to that. To expect that there would be no terraced area, from either the bedroom or from the living/dining room, when the primary views are to the east, would be unreasonable.

29 The final matter that remains to be determined, with respect to the living/dining room level of the dwelling, is the concern expressed by Mr Pickles, on behalf of the council, that a splay is desirable in the south-eastern corner of the study in order to obviate a degree of additional overshadowing that would occur to the residence of Mr and Mrs Bott, immediately to the south of the site.

30 The additional impact, on his calculation, is approximately half an hour as at the winter solstice. I am not satisfied that that is such a sufficient, additional impact as to require such a splay. Although that portion of the design would not comply with the building height plane controls - had the definition contained in the LEP referred to natural ground level - I am satisfied that it is entirely compliant. In the face of the significant other concessions that have been made by the applicant in these proceedings, I am satisfied that it would be unreasonable to require any further modification in that area.

31 With respect to the proposed conditions of consent, there remains one matter of irresolvable contention between the parties. That is the proposal by the council for Condition I1, which would read that Nothing in this consent shall authorise the use of the dwelling for non-residential purposes, or for any residential purpose, other than a single dwelling house.

32 The position that is put by Mr Galasso is that, in light of the history of the applicant having lodged earlier applications for duplex developments on this site, I should make it expressly clear through the provision of a condition of consent, that this site is to be subject of a consent solely for a single dwelling house.

33 I am satisfied that the form of the orders that I propose to issue,which will make it clear in order 2, that the consent that is being granted is for the purposes of a single dwelling house. I am satisfied that it would be otiose to require a separate condition to that effect.

34 Finally, I turn to the remaining significant issue to be determined – that of the roof form of the dwelling.

35 It is clear that, after the removal of the studio room proposed in the roof, there are three options available for consideration for the redesign of the roof.

36 The first is that pressed by the applicant, and supported by the otherwise effected residents, of a flat roof for the site.

37 The second is that which is pressed by Ms Varley on behalf of the council, on conservation grounds, for a roof form effectively similar to the roof form proposed in the original plans.

38 An intermediate roof form drawn by the applicant’s architect overnight, for a lower pitched roof with a flat topped element in the centre of it, described with a degree of ironic accuracy by Ms Varley as a "Pizza Hut" option, attracted little support and does not need to be considered further.

39 The choice, subject to the controls in the LEP and consideration of the DCP, are therefore stark.

40 I had the opportunity of inspecting the impact on views, assisted by height poles erected on the site on behalf of the applicant, from a number of the balconies at 25 Harriet Street, and from the upper rooms of the Fletcher residence – rooms which will be used as bedrooms for their children.

41 If the roof form were to be as depicted on the height poles, there will be a serious impact on the water views from a number of the residences in 25 Harriet Street and there will be a degree of impact, but in many respects a more modest impact, on the views from the Fletcher residence.

42 The effect of the flat roof, as proposed by the applicant, is to lower the roof by 2.3 m. There would be a 300 mm parapet on the eastern edge and, although describing the reduction in the overall roof height from proposed RL 53.1, which was the original proposal, to RL 50.8, giving a reduction of 2.3 m in height, there would still be a degree of impact, as a consequence of the perspective view of the leading edge of that roof.

43 However, there is no doubt in my mind that there would be a significant ameliorative and positive benefit, otherwise, for all those who would have been impacted by the proposal, as it originally stood, which is the roof line proposed by Ms Varley. I must, therefore, consider that issue as a consequence of a proper and appropriate assessment of the provisions of the LEP and the DCP.

44 At the commencement at this mornings hearing, I provided to Mr Galasso and Mr Green a question which in my view, provided a framework given the interpretation of the LEP that was given by his Honour in the preliminary decision. That read as follows,

In circumstances, where there is a conflict between two objectives contained in a council’s planning instruments, if

(a) adherence to one objective would cause actual disadvantage to an identified group of residents, whilst

(b) adherence to the other would compromise a broader policy objective, and

(c) a conflict arises from the inadequacy or inaccuracy of the council’s own record or information systems, being matters entirely within the council’s control,

should there be a presumption that the conflict is to be resolved in favour of preventing the disadvantage to the residents?

45 During the course of the view onsite, Mr Bott, the resident immediately to the south, made a plea to me for what he described as “justice” and I informed him that I was obliged to dispense decisions according to law, and that the two did not necessarily coincide.

46 I am satisfied, in the context of this hearing, that the answer to the question that I posed to Mr Galasso and Mr Green, if answered from the perspective of justice, is yes. The question, however, that I must turn my attention to, is whether dispensing that justice is or is not consistent with the statutory environmental controls that apply to the site, and a proper consideration of which I am obliged to have.

47 I am satisfied in the circumstances of this case that the legal questions can also be answered yes, and that justice and the law can coincide in these proceedings. To do that I am obliged to have regard to and consider the following matters.

48 I start with cl 14(2) of the LEP. It requires that consent must not be granted to the carrying out of any development that in the opinion of the consent authority, is inconsistent with any of three elements. They are the specific aims of the LEP, the objectives of the zone, or the objectives of the controls.

49 I turn first to the specific aims of the LEP, which are contained in cl 3. The relevant specific aims in my view, are 3(a)(i) that is, in relation of the character of North Sydney’s neighbourhoods, to promote the character of the neighbourhood and development which is compatible with neighbouring development, in terms of bulk, scale and appearance.

50 I am satisfied that compatible with is not the same as identical as, and that I am satisfied that the plans as now modified, subject to the minor, further alterations I have dealt with, are compatible with the neighbouring development in the vicinity of the site, in the context of that specific aim.

51 The second specific aim relates to residential development, and is contained in cl 3(b)(i), which is to protect and enhance the residential use and amenity of existing residential neighbourhoods and new residential development.

52 I am satisfied that, quite positively, the alteration to the roof to a flat roof, enhances the residential amenity of the existing residential neighbourhood, and therefore it is compatible with that.

53 The objectives of the zone, which is the A2 zone, are contained in the zoning table. The particular objectives of the zone are set out in the LEP and I am satisfied, having properly considered each of them, that a flat roof is not inconsistent with those objectives.

54 I then turn to the particular matters relating to the heritage provisions of the LEP.

55 It is important to note, at the commencement of this consideration, that cl 43 of the LEP provides, when commencing the Part containing discussion of the heritage provisions, that the provisions of this Part prevail over all other provisions of the plan to the extent of any direct or indirect inconsistency.

56 Therefore, despite my satisfaction with respect to cl 3 of the LEP and the objectives of the A2 zone, if I am not able to be satisfied appropriately relating to the provisions of Pt 4, I must still conclude that the flat roof should fail.

57 I am satisfied that it ought not, when properly considered against the provisions of that Part. There is nothing in cl 45 (which has the mandatory, prescriptive elements) that is breached. The relevant provisions are contained in cl 49, dealing with conservation areas.

58 I am satisfied that the limited nature of the flat roof proposed in this application does not breach the objectives contained in cl 49(1)(a), the relevant one, which is to conserve the character of the neighbourhood and the heritage significance of the conservation area as a whole, or any part.

59 I am satisfied as to that because, in my assessment, the likelihood of there being any significant viewing of the flat roof of the proposed development from any part of the conservation area, or any other part of the municipality, that will cause it to impact on the overall appreciation of the conservation area, is effectively, de minimus – there being no public viewing location put in contention by the council in this regard.

60 I am also obliged to consider the matters contained in cl 49(2), that is the assessment of proposed development in conservation areas. I am obliged to consider these and I am not provided with any mandatory or prescriptive matters in this regard.

61 With respect to cl 49(2)(a), I am satisfied that the proposal will not adversely effect the character and heritage significance of the conservation area, it being effectively an internal, island site, surrounded - save with except to 27 Harriet Street to the north - by buildings that might be described as eclectic - a number of them being regarded as negative or neutral in the conservation area context. I am satisfied that, on the agreed position adopted by Ms Varley and Mr Staas, that there is no impact on the property at 27 Harriet Street.

62 Cl 49(2)(b) is not relevant; cl 49(2)(c) requires me, relevantly, to have regard to the pitch, form and detail of the roof of the building. For the reasons I have indicated earlier, in the context of the objectives of the LEP, I am satisfied that the flat roof is acceptable. The matter that I must also deal with in this regard, arises out of the DCP. My consideration of the DCP is not subject to the same mandatory and prescriptive requirement, that falls from cl 43 of the LEP.

63 In this regard, I have a clear requirement set out by the Court of Appeal, in Zhang v Canterbury City Council (2001) 115 LGERA 373, to use the DCP and it’s details as the focal, or starting point for my consideration of the specific element here.

64 Here I do have a clear conflict between the provisions of Part 7.2(e)(ii), that is to design buildings so as to minimise loss of views from surrounding properties, and the provisions of the desired future character statement for the Kurraba Point Conservation Area, contained in Part 8.3 and the requirement in the cultural themes and functions element of that character statement, for tiled roofs, which it is agreed would require a minimum pitch of twelve degrees.

65 I am satisfied that it is appropriate in my consideration of the conflict between those provisions of the DCP, having been satisfied that there is nothing in the LEP that would preclude me granting consent to the lower roof, that I am able at that point, to turn to the question that I put to Mr Galasso and Mr Green earlier. As, in the circumstances of the case, I am satisfied where there is a fundamental conflict between the attainment of those two outcomes from the DCP, I ought answer that question in the affirmative. The consent will therefore provide in the amended plans, for a flat roof at the upper level.

66 The final matter that I wish to note in terms of this decision, is that during the course of Mr Fletcher’s evidence, I gave what amounted to an interim finding, concerning the boundary fencing to the property – there being a dispute resolved to part of the length – that there should be, along the full length of the existing tennis court element (including by way of concession from the related ownership of 27 Harriet Street, that element of the tennis court fencing that is on the 27 Harriet Street property), a masonry fence extending from the north-western corner of the tennis court to the first of the two trees on the battleaxe access handle leading to Penshurst Street.

67 Mr Fletcher expressed a preference for a masonry fence to the front boundary, by implication at full height, for a variety of reasons. I have indicated that, whatever method of construction is adopted for the fence, from the point where I have indicated, it is appropriate that it be a full height masonry fence. I am not of the view that it should be a full height fence to the front, because I am satisfied that that would pose safety issues by obstructing the view of drivers of vehicles exiting from the property so that whatever materials the remainder of the fence is to be constructed from, there should be a tapering to a height of 900 mm at the front boundary.

68 Having reached those conclusions, the orders of the Court will be that:

1. The appeal will be upheld; and
2. A development consent will be issued for a single dwelling house – subject to conditions.

69 Issuing of those orders is subject to the provision of revised settled plans and revised settled conditions of consent.

70 I give the following directions;

1. The applicant is to file and serve revised settled plans, reflecting my decisions, both as to architectural and landscape plans, by the close of business on Friday 14 July;
2. The respondent is to file and serve revised settled conditions by Tuesday 18 July;
3. Callover on 20 July:
4. Liberty to re-list on two days notice if required; and
5. If (1) and (2) are complied with, I will make orders in Chambers and vacate the callover.

71 I could permit myself one observation at this stage in the proceedings, because it is not something that I can order. It would seem to me that as a matter of good neighbourliness, given that there has been what we might describe as a degree of vigour in these proceedings over time, if the applicant were minded to mark on the height poles what the outcome of the proceedings has been, I think it might assist the neighbours understand what happened and the benefits obtained for them from these proceedings.

Tim Moore

Commissioner of the Court