Donaldson v North Sydney Council

[2008] NSWLEC 1264

Land and Environment Court

of New South Wales

CITATION:	Donaldson v North Sydney Council [2008] NSWLEC 1264
PARTIES:	Applicant: Myles David Donaldson Respondent: North Sydney Council
FILE NUMBER(S):	10200 and 10497 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Development Standards - Section 96 Modification - Section 97 Appeal :-
DATES OF HEARING:	30 June 2008
DATE OF JUDGMENT:	4 July 2008
LEGAL REPRESENTATIVES:	Applicant: Mr G Green & Ms J Reid, solicitors of Pike Pike & Fenwick Respondent: Mr M Staunton, barrister instructed by Mr T Sheehan of Mallesons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

4 July 2008

10200 of 2008 Myles David Donaldson v
10497 of 2008 North Sydney Council

JUDGMENT

1 Senior Commissioner: These are two appeals against the refusal by North Sydney Council (the council) of applications relating to lot 2 DP 377483, known as 1 Premier Street, Neutral Bay. Appeal No 10200 of 2008 is against the council’s refusal of an application, pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) to amend the existing consent for a three-storey apartment building by adding a fourth storey (the s96 appeal). Appeal No 10497 of 2008 is against the council’s refusal of a development application to construct a fourth storey on top of the approved three-storey building (the development application appeal). In practice the two applications, and therefore the two appeals, are the same.

The site

2 The site is on the northeast side of Premier Street, at its intersection with Highview Lane. It is triangular, sloping and has an area of 838m2. Relevant to this appeal are the views from a neighbouring building, 7 Highview Avenue.

The proposal and its history

3 The applicant proposes to erect a fourth storey on top of an approved three-storey apartment building. The fourth storey is to contain the living area of one of the apartments on the third floor.

4 The applicant lodged the original development application for the site in June 2005. The application was for a four-storey building. Following notification the council received 23 objections. The council refused the application in September 2006. The applicant lodged a request for a review in May 2007. In November 2007 the council approved the application subject to the removal of the fourth floor. In November 2007 the applicant prepared amended plans without the fourth floor, and the council approved those plans.

5 In December 2007 the applicant lodged an application under s96 of the EPA Act seeking to reinstate the fourth floor that it deleted from the plans a month earlier. The council came to the view that the s96 application was not for substantially the same development as the approved development. To respond to this objection, the applicant submitted, in April 2008, a new development application for a fourth storey on top of the approved (but not constructed) three-storey building. Apart from being submitted under different sections of the EPA Act, the two applications are for the same development.

6 In March 2008 the council refused the s96 application. Also in March 2008, the applicant appealed against the refusal. In May 2008 the applicant appealed against the deemed refusal of the development application. On 16 June 2008 the council refused the development application.

7 The two appeals were heard together on 30 June 2007. During the hearing the Court came to the view that the s96 application was for substantially the same development, so that that nothing stood in the way of the s96 appeal (No 10200 of 2008) being determined on merit. Given that the two applications are for the same proposal, little turns on this decision.

Relevant planning controls and policies

8 Local Environmental Plan 2001 zones the site Residential C, a zone in which residential flat buildings are permissible. Clause 17 specifies a maximum building height of three storeys and 12m. Clause 18 specifies a building height plane that commences 3.5m above the ground and projects at 45 degrees at all points from the boundaries of the site.

9 Development Control Plan 2002 (DCP 2002) deals with views under 7.2(e) Environmental criteria – Views, as follows:

Existing views are maintained from public places and private property, particularly to landmark features. The outlook from dwellings is not compromised.

10 DCP 2002 deals with fourth floors under 7.2(h)(v) Environmental criteria – Form, massing and scale, as follows:

Where the maximum height of an apartment building has been identified as 12m:

· Three-storey buildings are to use a pitched roof;

· Four-storey buildings are to use a flat roof and recess the fourth storey to comply with a 36 degree angle back from the top edge of the third storey.

Matters in contention

11 The council filed its Statement of Contentions listing four matters, which can be simplified as follows:

· The proposal breaches the maximum building height control of 12m.

· The proposal breaches the building height plane control.

· The proposal has unacceptable impact on views as a result of the above breaches.

The objectors’ concerns

12 The Court heard the evidence of 5 objectors, given on site. Mr Garry Hazell, who lives at 96 Ben Boyd Road, said that he was concerned about overshadowing of his rear yard, overdevelopment and the under-provision of parking. Mr S Thuraisingam, who lives at 12/100 Ben Boyd Road, said that the additional floor would block his views of North Sydney.

13 The other three objectors live at 7 Highview Avenue and their concern is about the proposed fourth floor impacting on their view. They were Mr G Holden, who lives in Unit 21 and is also the chairman of the Owners’ Corporation; Ms Megan Hamilton, who lives in Unit 20; and Ms Veronica Marshan, who lives in Unit 17. The court saw also other apartments whose owners were not available to give evidence.

The impact of breaching the building height plane and the building height control

14 Mr John Mills, an expert in computer modelling, prepared a three-dimensional analysis of the proposed building’s compliance with the building height plane and building height. The analysis (Drawing 5 of Exhibit 3) shows that a triangular area of about 16m2 of the fourth floor complies with both the building height plane and the maximum building height. According to my calculation, this is about 14% (or one-seventh) of the area of the proposed fourth floor.

15 The council’s planning expert, Mr Ian Pickles, a council planner, and the applicant’s expert, Mr Andrew Darroch, a planning consultant, agreed that the proposed fourth floor did not comply with the planning controls. However, they disagreed on the extent of non-compliance and its impact. At the root of their disagreement was the way they interpreted the building height plane control.

16 Mr Darroch conceptualised a building complying with the building height plane as a pyramid-like shape and considered that only those sections of the fourth floor that were outside the pyramid were non-complying. I do not think that this is a useful way of applying the control since that part of the fourth floor that is within the building height plane could not be built, because it would have a ceiling height that is too low for human beings and walls at 45 degrees to the horizontal (or vertical). A building that complies with the building height plane is one that is completely within that plane. In practice this means that the area that complies at the roof level must be projected down to the floor of the top storey to provide the plan of the complying top floor. Because this site is triangular, the complying part at roof level is also triangular; consequently the triangle is must be adjusted to a rectangle that fits into the triangle, except where the building’s designer wants a triangular shape, which is not the case in this proposal.

17 In Tenacity Consulting v Warringah [2004] NSWLEC 140 I adopted four steps to be taken in the assessment of view impact.

The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.
The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

18 Mr Mills prepared view analyses from the units at 7 Highview Avenue. The worst view impact of the proposed fourth floor is on Unit 20. It obscures the Harbour Bridge, the City skyline and the Opera House, leaving only the view to the southeast and southwest. I assess the impact as devastating. If only the complying part of the fourth floor were built, it would obscure the Harbour Bridge, would allow some City skyline and not affect the view of the Opera House. The impact would be severe.

19 It seems to me that the impact on Unit 20 alone justifies the refusal of this application, without taking into account the impact on other units that are in some cases severe. I note that the applicant’s advocate, Mr Garry Green, submitted that the applicant was willing to reduce the fourth floor to a complying size. I do not think that the minor benefit to the applicant of a complying fourth floor would justify inflicting the severe impact on the views it would cause. While I measured the complying triangle on Mr Mills’ analysis at less than 20m2, the size of a complying rectangle is likely to be smaller. Even if it were 20m2, it would be only a small fraction of the proposed fourth floor and would not be enough to create a living area. It may be just sufficient for an internal staircase, leaving no space for even a small bedroom.

How to consider the application

20 The parties disagreed on the correct way to consider the s96 application. In the submission of the council’s advocate, Mr Michael Staunton, the Court should consider the approved three-storey development as a given fact and assess only the impact of the proposed amendment, which is the addition of a fourth floor. In Mr Green’s submission, since the Court is giving consent to the whole development, it should consider the impact of both the approved three-storey building and the proposed fourth floor. Consideration of the approved building includes taking into account the negotiations and trade-offs that occurred during the period leading to the approval.

21 I do not think that Mr Green is correct. If this were an appeal against the council’s refusal of the application for a four-storey building, or an appeal against a condition to remove the fourth floor, the Court would have to take into account all the above factors. However, this is not the case. Before it received its consent, the applicant amended its drawings by removing the fourth floor. The approved three-storey building is therefore a fact that the Court cannot change. The focus of the Court’s consideration must be the impact of the fourth floor alone.

22 However, I may be wrong and, for abundant caution, I consider the events that preceded the approval of the three-storey building. In the applicant’s submission, if one were to consider the whole process that led to the original approval, one would conclude that a four-storey building that complies with the planning controls would have a worse effect on views than the non-complying four-storey building that is here proposed.

23 Such a conclusion is surprising, since a building that complies with the controls is likely to be smaller than one that breaches them and a smaller building is likely to have less impact on views. The evidence would have to be strong and persuasive to support a counter-intuitive conclusion. I cannot find anything in the evidence that would support it, not even if I accepted that a complying building could be built with a triangular fourth floor and walls sloping at 45 degrees. As I pointed out in paragraph 16, I do not accept this proposition. In my opinion, a complying building will have less impact on views than a non-complying one, unless the non-complying building has less floor space, in which case no applicant is likely to want to build it.

24 For the above reasons the appeals are dismissed. The s96 application is refused and, consequently, so is the development application. The council’s decision to approve this proposal subject to the deletion of the fourth floor was the correct planning decision.

Orders

1. The appeals are dismissed.

2. The application, pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the EPA Act) to amend the existing consent for a three-storey apartment building on lot 2 DP 377483, known as 1 Premier Street, Neutral Bay by adding a fourth storey is determined by refusal.

3. Development application to construct a fourth storey on top of the approved three-storey building on lot 2 DP 377483, known as 1 Premier Street, Neutral Bay is determined by refusal.

4. The exhibits are returned.

____________________
Dr John Roseth
Senior Commissioner