Edward Listin Properties Pty Ltd v North Sydney Council (No 2)

[2000] NSWLEC 181

Land and Environment Court

of New South Wales

CITATION:

Edward Listin Properties Pty Ltd v North Sydney Council (No. 2) [2000] NSWLEC 181

PARTIES:

APPLICANT:
Edward Listin Properties Pty Ltd

RESPONDENT:
North Sydney Council

FILE NUMBER(S):

10302 of 2000

CORAM:

Talbot J

KEY ISSUES:

Development Application :- medium density semi-detached and detached dwellings on 3 lots resubdivided into 10 lots - weight to be given to draft LEP

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 1989
Draft North Sydney Local Environmental Plan 2000

CASES CITED:

Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138;
Mathers v North Sydney Council [2000] NSWLEC 84

DATES OF HEARING:

03/08/2000, 04/08/2000

DATE OF JUDGMENT:

08/16/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr G A Green (Solicitor)

SOLICITORS:
Pike Pike & Fenwick

RESPONDENT:
Mr D R Parry (Barrister)

SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No. 10302 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 16 August, 2000

Edward Listin Properties Pty Ltd
Applicant

v
North Sydney Council

Respondent

REASONS FOR JUDGMENT


1. On 10 December 1999 this Court refused an earlier development application to re-subdivide the properties known as Nos 76-80 Ben Boyd Road Neutral Bay into 10 lots with 10 individual two storey dwellings to be built on the respective lots. In that matter, No 10591 of 1999, the judgment provided details of the site and the planning regime which remain basically unchanged, except to the extent that Draft North Sydney Local Environmental Plan 2000 (“the draft LEP”) has progressed to the point where it must be regarded as certain to be brought into force within the reasonably foreseeable future ( Mathers v North Sydney Council [2000] NSWLEC 84 and Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138).

2. The present plans are similar to the previous proposal in many respects. Although the bulk and scale of the overall development has been reduced, the number of lots and dwellings and the building footprints remain the same.

The relevant provisions of the draft LEP

3. When the Court made its decision of 10 December 1999 there was no suggestion that the making of the draft LEP was imminent (para 25). However, the Court did find that the proposed development comprising two storey semi-detached and freestanding single dwellings was not, in the Court’s opinion, antipathetic to any of the proposed objectives. As a group of buildings it was considered sufficiently consistent with the stated aim to protect and enhance residential use, except to the extent that non-compliance with the building height plane created an adverse impact on adjoining properties.

4. In the current appeal the council has paid much closer attention to the provisions of the draft LEP and contends that the proposal as it is now framed fails to comply with its objectives.

5. In Mathers I noted that the draft LEP must be assessed with the understanding that it is essentially a consolidation of draft LEP 1989 and the draft Heritage LEP, both of which have been previously exhibited. In Architects Haywood and Bakker , the Chief Judge regarded any matters yet to be settled in relation to the draft LEP as matters of detail, not of substance, and that the planning approach which the draft LEP adopts must be regarded as certain to be brought into force within the reasonably foreseeable future. The Chief Judge and I placed significant weight upon the provisions of the draft LEP in the assessment of the development applications which were before the Court in those cases.

6. Since I delivered judgment in Mathers the council has considered the submissions received on the third exhibition of the draft plan.

7. At its meeting on 10 July 2000 council resolved that the Minister for Urban Affairs and Planning be requested to make the plan.

8. Pursuant to the resolution the council wrote to the Department of Urban Affairs and Planning on 17 July 2000 forwarding a statement in accordance with s 68(d) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), a binder containing the section 65 certificate, council minutes, officers’ reports to council and other documents referred to in the council’s statement, and original copies of all submissions received on each of the three exhibitions. The statement in accordance with s 68 requested and recommended that the Minister make the LEP.

9. Notwithstanding that the subject development application has been lodged and therefore would be entitled to be considered pursuant to the existing LEP even if the draft LEP had been made, s 70C of the EP&A Act requires the Court to take into consideration the draft LEP and give it such weight as is appropriate in the circumstances. In the circumstances outlined above it is incumbent upon the Court to place considerable weight on any relevant provisions of the draft LEP and the impact that granting of development consent may have on implementation of its objectives.

10. Although the proposed development is permissible within the Residential A2 Zone pursuant to cl 14 of the draft LEP as dwelling houses, it fails to comply with the minimum lot requirement of 450 square metres in cl 15 in each case.

11. The particular relevant objectives of the Residential A2 Zone are stated as:-

(a) maintain lower scale residential neighbourhoods of mainly detached and duplex housing;

(b) …

(c) encourage the retention of existing buildings; and

(d) …


12. Clause 18 applies a building height plane in effectively the same terms as the existing LEP, stating the following specific objectives:-

(a) control the bulk and scale of buildings;

(b) provide separation between buildings; and

(c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.


13. The landscape area requirements are the same as those at present, requiring a site percentage of 50 per cent. However, the definition of landscaping has been changed to read as follows:-

“landscaped area” of a site means the part of the site that is generally at existing ground level, that is not occupied at or above or below ground level by any building structure, swimming pool or hard-surfaced tennis court, or the like that is or is proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any area set aside for driveways and parking .


14. The critical part of the definition is the reference, firstly, to the part of the site above or below ground level occupied by any building structure and secondly, that is available for use and enjoyment by the occupants of the building erected on the site. Areas of landscaping are proposed above an underground car park and along a pathway outside the domestic area but within individual lots of houses fronting Ben Boyd Road to be used as an accessory for the benefit of the dwellings to be built at the rear.

15. Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.

16. The proposed new dwellings fronting Ben Boyd Road are in the form of conventional semi-detached two storey buildings.

17. The explanatory note to the objectives and description of development that is permissible within the Residential A2 Zone in the draft LEP refers to a duplex as two dwellings in the one building, and attached side to side, back to front or top to bottom. The note further explains an intention that duplexes will have a similar appearance, bulk and scale to a detached house.

18. Each of the dwellings along Ben Boyd Road will have two distinct entrances which will not in that respect give the impression of, or appearance similar to, a single detached house. The architect, Mr Wolski, has acknowledged that he has responded to the earlier judgment by the Court on 10 December 1999 but he did not consider it was necessary to respond to the provisions of the draft LEP.

19. Under the provisions of the draft LEP it will be permissible to have a duplex development on a site area of at least 450 square metres but pursuant to cl 15(3) the duplex development cannot be subdivided other than by way of a strata allotment. Furthermore, in calculating the area of any allotment, the area of any access way, right of carriageway or the like is to be excluded. The access way to the rear allotments is included within the area of four of the six lots upon which the semi-detached development is proposed.

20. Obviously the proposal will result in the demolition of three existing residences. Furthermore, the three replacement buildings along the frontage to Ben Boyd Road will appear as six distinct dwellings with a separate entrance and curtilage. The proposed development therefore is not conducive to achieving the objective of maintaining a lower scale residential neighbourhood comprising mainly detached and duplex housing in the future and the retention of existing buildings, although it will not necessarily be antipathetic to the objective.

21. The footpaths leading to the rear dwellings will not read as part of the front allotments. Although the landscaping proposed within the pedestrian corridors will technically be on the title to a front allotment, they will not make any significant contribution to outdoor amenity for the residents of the semi-detached dwellings. They do, however, have the potential to make a contribution to a more pleasant outlook from the interior of those dwellings and for the amenity of pedestrians passing through to the rear allotments. The fact that some part of the landscaping is proposed above the area to be excavated for construction of the car park does not necessarily inhibit the capacity to provide sufficient planting in those areas. Notwithstanding the revised definition of “landscaped area” in the draft LEP, the applicant has demonstrated that it is entitled to have the areas above the underground structures taken into account for calculation of the landscaped area. That, however, does not lead to a conclusion that the landscaping itself will be adequate.

The building height plane

22. On the last occasion the Court was not prepared to uphold a SEPP 1 objection to the application of the building height plane standard for the reasons set out at para 48. Furthermore, the applicant had not satisfied the provisions of cl 13(2) of North Sydney Local Environmental Plan 1989 (“LEP 1989”).

23. In the present application the applicant has succeeded in complying with the building height plane standard to a significant extent by substantial excavation, thereby dropping some of the buildings into the ground. Nevertheless, breaches remain. The applicant appears to have concentrated on removing any impact on existing adjoining properties as a consequence of the breach of the building height plane. It has not been successful in eliminating internal impacts, particularly in relation to privacy in some minor respects and the circulation of light and air with minor shadowing impacts.

24. The original concept was to adopt a “jumping off point”, as Mr Czeref called it, at the Ben Boyd Road end of the site resulting in excavation of about 150 cubic metres, whereas the jumping off point in the present proposal is in the western part of the site necessitating excavation of about 500 cubic metres.

25. The fact that the applicant’s architect has been unable to fully comply with the building height plane notwithstanding substantial excavation across the site suggests that once again it is trying to build too many dwellings.

26. Even where the building height plane is complied with, council’s consultant town planner says there is still an issue of adequate circulation of air and light between the buildings which could be removed if the buildings were further apart. The lowering of building No 8 in the north western corner of the site has the most significant effect in this respect.

Landscaping

27. Depending upon whether the planting within the pathways is accepted, the amount of landscaping provided does comply with the 50 per cent standard imposed by LEP 1989.

28. There was considerable debate during the hearing as to whether the substantial number of trees achieving a height of 15 metres, as expected by the draft LEP, could be achieved in order to maintain the aspect to and through the site. Narelle Sonter asserts there is ample opportunity for deep planting. Other areas are made up by fill along the wall of buildings. It is suggested in at least one case that the fill will be placed up to the window sill of ground floor windows. No geotechnical information has been considered in the development of the landscape concept for the site, notwithstanding a series of rock outcrops in the critical rear section.

29. The debate shows that compliance with the numerical requirement for adequate landscaping is at the best marginal. Furthermore, it has been agreed that part of the rear of the site will be fenced off to facilitate the establishment of native plantings. Although a gate will be provided in the fence to allow access by the occupants of the rear buildings in order to satisfy council’s concerns, nevertheless, the result will be a reduction in easily useable open space which in the Court’s view forms an integral part of the landscaped area required for the purpose of meeting the numerical requirements of the planning instrument. The area within the front lots used as a common pathway servicing the rear lots is of little utility to the amenity of the occupiers of the front lots.

30. The ability to view the site from outside as a series of buildings within the bounds of vegetation can be achieved notwithstanding the loss of a significant number of large trees.

31. Although the construction of the car park underground frees up areas of the site which would otherwise be used for off street parking, the Court is still left with the impression that the applicant will struggle to provide a satisfactory level of useable private open space and an appropriate internal landscape buffer, notwithstanding strict compliance with LEP 1989.

The opposing contentions

32. The applicant submits that although not strictly complying with the particular objectives of the Residential A2 Zone in the draft LEP, the development is generally consistent with the multiple styles of buildings existing within the immediate area. Further, the objective to retain existing houses implies that demolition should be allowed only if the proposed lot size and character of the new buildings is appropriate in the context of the adjoining development.

33. The respondent recognises that the existing locality is characterised by predominantly single, one or two storey dwellings with the exception of a townhouse development opposite, two or three two storey residential buildings in the locality and some single storey semi-detached dwellings. However, Mr Czeref makes the distinction that the exceptional developments are situated on substantially larger allotments with greater separation between them and without pedestrian access to the rear. He asserts that the visual perception of the development is more akin to a group/row of two storey semi-detached developments with large front courtyards, generally inconsistent with the dominant character of this part of North Sydney.

34. The council’s concern is that after the draft LEP comes into effect the proposed development would stand out as representing an out of date set of buildings incompatible with the proposed future scale and character of the existing locality.

35. In the Court’s opinion it is not simply a case of demonstrating, as the applicant seeks to do, that strict compliance with the controls contemplated in the draft LEP could result in a more intense development. If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.

36. Mr Nangle, as the applicant’s consultant town planner, categorises the council’s contention that the proposal is an overdevelopment as defying belief. This brave submission flies in the face of the breaches in the building height plane, the minimum size of the lots to be created (irrespective of questions of compliance with the development standards), the narrow separation between the buildings at the front, the struggle to comply with the council’s expectations for landscaping and the use of excavation in an attempt to improve the relationships between the proposed buildings and existing development adjoining.

37. Mr Green seeks to justify the provision for landscaping by asserting that overall 69 per cent of the site is given over to planting. Mr Green contends that the 69 per cent average is relevant to demonstrate that the lot boundaries could have been adjusted to comply with the LEP control. The inability or unwillingness of the applicant to adjust the boundaries merely reflects, once again, the constraints imposed by overdevelopment. An assessment on this basis would totally ignore the individual requirements of each dwelling.

38. The Court agrees with Mr Parry that at least three of the proposed 10 dwellings will be deficient in terms of landscaping. It is simply not appropriate to rely on provision of landscaping in pathways to be used for the rear allotments as a contribution to the amenity of the front allotments.

39. The Court agrees with the respondent that notwithstanding existing anomalies, the future character of the area should properly be regarded as dominated by detached dwellings. The Court agrees that in order to achieve a form of development which appears as a dwelling house, as the specific objective of the duplex controls in the draft LEP contemplate, a redesign is necessary. Each of the semi-detached buildings with separate entrances built at different levels will not bear sufficient relationship to the appearance of three detached separate dwellings.

40. In general, the scheme of the development suggests a monocular objective to achieve the greatest amount of development on the site without paying due respect to internal and external amenity questions which inevitably arise when medium density housing is proposed on a site in a locality which has been adapted in the past for single detached dwellings.

41. The attempt to achieve a greater yield from the land by placing the parking underground has the consequence that the area permitted to be covered by the footprint of buildings has increased, thereby placing a significant strain on the capacity of the site to provide satisfactory amenity for future occupants.

Conclusion

42. On the last occasion I concluded that the development in its then form was either an overdevelopment or had been designed without sufficient consideration or recognition of the amenity of individual properties which caused adverse impact on internal privacy, solar access and a combination of other impacts on the amenity of adjoining properties which justified refusal of consent.

43. The attempt to comply with the building height plane by excavating into the site and reducing the upper form of the buildings has done little if anything in terms of reducing the occupation of the site by buildings or expanding the areas available for landscaping.

44. The site remains overcrowded. In the light of the revised approach through the provisions of the pending draft LEP, it is not appropriate in my opinion to allow a development which scarcely complies with the provisions of the existing LEP in some respects and still contains non-compliances in other respects.

45. The applicant must either be satisfied with a lower yield from the site or attempt to redesign a proposal which is more consistent with the overall objectives reflected by LEP 1989 and the draft LEP.

46. The development application is determined by refusal of consent.

Orders

47. The formal orders of the Court are:-

1. The appeal is dismissed.
2. Development application No 671/00 is determined by refusal of consent.
3. The exhibits may be returned.