Edward Listin Properties Pty Ltd v North Sydney Council

[1999] NSWLEC 269

Land and Environment Court

of New South Wales

CITATION:

Edward Listin Properties Pty Ltd v North Sydney Council [1999] NSWLEC 269

PARTIES

APPLICANT:
Edward Listin Properties Pty Ltd

RESPONDENT:
North Sydney Council

NUMBER:

10591 of 1999

CORAM:

Talbot J

KEY ISSUES:

Development :- subdivision - 10 dwellings - overdevelopment - lack of consideration for amenity of other properties

LEGISLATION CITED:

North Sydney LEP cl 13

DATES OF HEARING:

12/01/1999; 12/02/1999; 12/03/1999

DATE OF JUDGMENT DELIVERY:

12/10/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr G Green (Solicitor)

SOLICITORS:
Pike Pike & Fenwick

RESPONDENT:
Mr D Parry (Barrister)

SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:
IN THE LAND AND Matter No. 10591 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 10 December 1999

Edward Listin Properties Pty Ltd
Applicant

v
North Sydney Council

Respondent

REASONS FOR JUDGMENT


1. This appeal against the failure of North Sydney Council to grant development consent relates to the properties presently known as Nos 76-80 Ben Boyd Road in Neutral Bay. The land is situated on the western side of Ben Boyd Road between Phillip Street and Premier Street.

2. The site comprises 2,807 m ² with a frontage of 51.62 metres to Ben Boyd Road. The rear, or western boundary, common with properties facing Spruson Street, is 47.85 metres in length. The northern boundary, with 82 Ben Boyd Road, is 56.65 metres and the southern boundary, common with 74 Ben Boyd Road, is 66.52 metres. The northern and southern boundaries are set at an angle of about 63 degrees to the street alignment.

3. The proposal is for the land to be re-subdivided into 10 lots. Ten individual two storey dwellings will be built on the respective lots.

4. A car parking stratum level is proposed to provide underground off street parking for 20 vehicles with access by means of various easements and rights of way.

5. Two existing two storey dwellings and a single storey dwelling are to be demolished.

6. Six of the proposed dwellings along the Ben Boyd Road frontage will be semi-detached two storey buildings.

7. There will be four detached two storey dwellings on separate allotments along the rear of the site with a footway access to the underground parking level and Ben Boyd Road.

8. Although dwelling houses are development which is permissible without consent in the relevant 2(b) zone under the North Sydney Local Environmental Plan (the LEP), development consent is required for the demolition of the existing houses, subdivision and for the erection of the proposed dwellings under cl 29(3) of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998.

9. The particular relevant objectives of the 2(b) zone are:-


(a) to allow for a variety of housing forms including low density detached dwellings, attached dwellings, boarding houses and group homes;

(b) to permit a form of development which is compatible with the scale and character of the existing locality


10. The area in the immediate vicinity of the land comprises a mixture of semi-detached dwellings, single storey and two storey dwellings, townhouses, residential flat buildings and small local commercial uses.

11. Development in Spruson Street at the rear and generally below the site comprises dwelling houses, residential flat buildings of single storey and two storeys, including several battle-axe developments.

12. The development complies with the minimum allotment size standard of 200 m ² set in the LEP (cl 11).

13. The development complies with the development standard which requires a minimum of 50 per cent of the area of each allotment to be set aside as landscaped area (cl 13A).

14. The development complies with the two storey control in cl 12 of the LEP.

15. However, there are a number of non-compliances with the building height plane control in cl 13 of the LEP which is as follows:-


(1) Subject to subclause (2), a building shall not be erected on a site in Zone No. 2(a), 2(b), 2(c), 2(d) or 2(f) where any part of the building will exceed a building height plane projected at any point from any boundary of the site.

(2) A building may be erected which does not comply with the building height plane provided the building, when erected -

(a) will not materially increase the overshadowing of adjoining properties;

(b) will not materially reduce the level of privacy enjoyed by adjoining properties;

(c) will not materially obstruct views from adjoining buildings; and

(d) will not materially reduce the level of daylight and ventilation to existing development,
and no well founded objection is raised to the proposed building.


16. The Court accepts the council’s submission that the main objectives of the building height plane control are to ensure adequate privacy, limit overshadowing and to facilitate view sharing by providing adequate separation between buildings.

17. The development application was considered by council at its meeting held on 11 October 1999 when it had the benefit of a recommendation from the Team Leader and Assessments Manager that council request amended plans to achieve a number of objectives set out in the report. The council resolved to request the applicant to prepare amended plans as recommended in the report and for the matter to be deferred to a site meeting with the amended plans, height poles and corner poles available.

18. The applicant provided amended plans in accordance with the resolution of council except in regard to the deletion of a second storey bedroom to two of the rear dwellings. The Team Leader and Assessments Manager reported to the council meeting on 15 November 1999 following the site meeting as follows:-

The major issue raised at the site meeting was the non-compliance with the draft planning instrument. As demonstrated above, using this instrument, it would be possible to erect a total of 12 dwellings on the site resulting in a development that could have greater impacts on the amenity of the locality. The applicant has submitted amended plans which will reduce the overall bulk and scale of the development and retain trees and the rock outcrop. The impacts that this development will have are not considered to be material, accordingly, development consent is recommended.


19. The amended plans are the plans for which the applicant now seeks approval.

General issues

20. A number of issues were raised regarding inconsistency with the objectives of the zone, particularly objective (b). Although the individual buildings, when viewed from Ben Boyd Road will not show any marked architectural distinction between each other, nevertheless the form of the development is similar to the development which is being replaced. The existing development is, in the Court’s opinion, compatible with the scale and character of the existing locality. It is not perceived that the proposed buildings will appear to be incompatible with the variety of housing forms which already exist in the locality and are recognised by objective (a).

21. Issues were raised in regard to the impact of the proposed footways on privacy where they are located between dwellings along the street frontage. Having regard to the limited access to these footways, the Court does not consider this issue alone to be one that warrants refusal. Indeed landscaping will provide substantial relief in that regard.

22. The creation of land locked lots at the rear is compatible with similar development in the locality, particularly in Spruson Street. The depth of the land is sufficient to accommodate the additional dwellings.

23. In respect of the streetscape, particularly after taking into account the off-set of the north and south boundaries, the position of the buildings and the separation from the road frontage, the Court is not concerned that the prospect of being able to observe the buildings at the rear from Ben Boyd Road is a potential adverse impact.

24. A number of landscaping issues were discussed, but none of these rose to the height which would justify refusal. Although some trees will be lost, including an olive tree in the street, there will be adequate retention of existing trees at the rear of the blocks. Supplemental planting is also proposed. Some interesting rock outcrops in the back of the site will be disturbed, but again, not all of these features will be removed. The remaining outcrops will provided a positive aspect from the terraces of the free standing homes.

25. The council referred to several of the specific aims of the North Sydney Draft LEP 2000 which, it says, are not complied with. Firstly, it is not suggested that the making of the plan is imminent. Secondly, the proposed development, comprising two storey semi-detached and free standing single dwellings, is not, in the Court’s opinion, antipathetic to any of the proposed objectives. As a group of buildings it is sufficiently consistent with the aim to protect and enhance residential use, except to the extent that non-compliance with the building height plane creates an adverse impact on the adjoining properties.

Overshadowing and privacy issues raised by the non-compliance with the building height plane

26. At the outset it is relevant to note that the two officers reporting to council did not express any opposition to the grant of development consent based directly on the non-compliance with the building height plane control. The applicant’s consultant planner, Mr James Nangle, and the applicant’s architect, Mr David Wolski, both consider that the impacts will not be such as to justify refusal of development consent and that the SEPP 1 objection lodged can be supported on the basis that compliance with the control is unreasonable and unnecessary.

27. The original shadow diagrams provided by the applicant do not assist with an understanding of the extent of overshadowing caused by the exceedence of the building height plane.

28. It is nevertheless apparent to the Court that there will be significant impact by overshadowing of buildings 3, 4 and 7 within the development and on the rear garden of the adjoining property No 74.

29. If the only question was the impact on the buildings within the development itself, that would not, in my view, be sufficient to justify refusal of development consent.

30. The applicant has a clear onus to demonstrate the extent of or lack of any adverse impact arising as a consequence of the breach of the development standard. The evidence does not make this clear. The Court is left in no doubt that there will be some impact caused by overshadowing. The amenity of the rear garden of No 74 will, in the Court’s opinion, be seriously impacted by overshadowing caused by at least one of the two southern most buildings. The evidence is that there will be a marginal improvement in the amount of sunlight access along the northern wall of No 74.

31. Whereas the rear garden of No 74 is currently private with the benefit of a sylvan setting, the intrusion of units 1 and 3 will have a serious impact on that aspect. The impact is accentuated by the slope of the land towards the south west.

32. There is also an intrusion into the private space of Nos 82 and 82A Ben Boyd Road at the rear. However, these northern neighbours have the benefit of a more elevated position and retain a pleasant outlook across the valley in a westerly direction towards the North Sydney CBD. They would nevertheless benefit from a further set back of the rear building referred to as unit 8.

33. The impact on No 74 is material in the context of the overall impact of the development and compliance with the control generally. It is also specifically material in the context of the potential impacts identified in cl 13(2)(a) to (d).

34. Mr Green suggested on behalf of the applicant that there could also be a middle position where materiality is measured against the broader issue giving primacy to the individual issues.

35. For the moment it is sufficient to concentrate on the matters specifically raised in cl 13(2) of the LEP.

36. As I said earlier, the Court has not been given sufficient information to make a concise assessment of all impacts caused specifically by the breach of the building height plane development standard, particularly in terms of overshadowing.

37. Mr Wolski attempted to rectify this omission in a piecemeal way during his oral evidence.

38. The council’s consultant town planner, Mr Steve Czeref, concentrated on the objective of achieving a greater separation between buildings and placed significant weight on privacy issues within the site and to the amenity of the adjoining houses to the north, south and west around the periphery of the site.

39. During the site inspection, the relationship between the rear garden at No 74 and the proposed buildings at the southern end of the site became apparent. I invited both parties to pay particular attention to this aspect of the development. In response, Mr Wolski suggested that the impacts could be made acceptable, if the Court considered it to be of sufficient concern, by slicing off part of the eastern face of the upper level of one unit and part of the southern roof line. It became obvious during discussion that adjustments to the layout of the upper floor plan would also be necessary to accommodate these changes. The Court is not attracted to such a piecemeal approach by way of knee jerk reaction to an issue which should have been apparent to those advising the applicant before the hearing.

40. There has been an objection lodged on behalf of the elderly resident of No 74 and a relative gave evidence on her behalf. She is obviously concerned about impact on the enjoyment of her rear garden immediately adjacent to the rear dwelling. This garden has been improved and is obviously well used. The Court is not concerned with any impact on the western most part of the rear yard of No 74 which is overgrown, steep and rocky.

41. The introduction of unit 3 in such close proximity to the rear of No 74 materially reduces the level of privacy enjoyed by the owner of that adjoining property. It will also have an impact on the level of daylight and ventilation to the rear section of No 74.

42. The applicant has not established, to the Court’s satisfaction, the extent of overshadowing caused by the breach of the building height plane.

43. However the effect on privacy and the impact of overshadowing is generally sufficient to justify refusal in the circumstances of the reasonable expectations of residents in this neighbourhood.

44. The Court has also heard evidence in support of an objection lodged by the owner of a residential unit at the rear. This property, known at 41B Spruson Street, is set below the rocky outcrop and accordingly is already overborne to the north and east on that account.

45. The objections raised by the owners of 41B Spruson Street and 82 and 82A Ben Boyd Road would not be sufficient to cause the Court to refuse consent if they were the only objections. However, there is serious concern that there will be an unacceptable impact upon the property No 74 Ben Boyd Road.

46. The combined effect on these four adjacent properties demonstrates from different aspects that the applicant is seeking to cram too much development onto the site, or alternatively that the development has not been located with necessary consideration to the neighbours, both within the development site and externally.

47. The applicant is forced to rely upon the SEPP 1 objection in regard to the non-compliance with the development standard in cl 13(1) because the conditions of cl 13(2) have not been satisfied.

48. The Court is not prepared to uphold the objection to the application of the building height plane standard by reason of insufficient separation between buildings, the internal impacts on privacy, the overshadowing of buildings within and outside the development itself and the intrusive nature of the buildings to the neighbours.

49. The Court agrees with Mr Parry’s submission made on behalf of the council that the impacts from a breach of the building height plane standard are relevant to the internal aspect of the site as well as external properties. This is particularly so where subdivision is proposed. The building height plane must therefore be determined by reference to the boundaries of the internal lots within the proposed subdivision.

50. The better view of cl 13(2) is that it does not afford an exemption in respect of internal impacts. A well founded objection can only be based upon a direct effect upon the amenity of the objector. However, there is no SEPP 1 objection in respect of the building height plane with reference to the internal boundaries of the 10 separate lots. Even in the absence of a well founded objection, it would appear that cl 13(2) requires that each one of the matters (a) to (d) must be satisfied.

51. Although Mr Czeref only concentrated on the issue of separation between buildings in his written statement of evidence, he agreed with the identification of the object or purpose of the building height plane referred to by Mr Nangle as to minimise:-

(a) overshadowing to adjoining properties;
(b) overlooking to adjoining properties;
(c) loss of light to adjoining development;
(d) loss of ventilation to adjoining development;
(e) loss of views from adjoining development.


52. The Court agrees that the identification of the aims and objectives of the building height plane standard by Mr Nangle and Mr Czeref is generally correct.

53. Mr Wolski was asked during his evidence whether it was difficult to show the impact of the breach of the building height plane in terms of overshadowing to assist the Court in its assessment of whether the objectives of the standard had been met. He said that it was a simple task. But this was not done.

54. Mr Czeref made a valiant attempt to estimate what the effect would be.

55. However the Court cannot be satisfied one way or the other. Accordingly, the SEPP 1 objection cannot be sustained.

56. In any event, the Court is satisfied that the development application should be refused on the grounds of impact on amenity generally for the reasons outlined above.

Conclusion

57. After hearing the whole of the evidence, considering submissions made on behalf of both parties and taking account of the matters shown to the Court on the site inspection, it is apparent that the development in its present form is either an overdevelopment, or is designed without sufficient consideration or recognition of the amenity of individual properties which causes adverse impact on internal privacy, solar access and a combination of other impacts on the amenity of adjoining properties which justifies refusal of consent.

Orders

58. The Court makes the following orders:-


1. Development application 920/99 is determined by refusal of consent

2. The exhibits may be returned.