First Land Corporation Pty Limited v North Sydney Municipal Council

[1989] NSWLEC 224

Land and Environment Court

of New South Wales

CITATION:	First Land Corporation Pty Limited v. North Sydney Municipal Council [1989] NSWLEC 224
PARTIES:	APPLICANT First Land Corporation Pty Limited RESPONDENT North Sydney Municipal Council
FILE NUMBER(S):	10038 of 1989
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	North Sydney Municipal Council v. Parlby, Land & Environment Court, SteinJ., 13thNovember, 1986 (unreported).
DATES OF HEARING:	22/05/89, 23/05/89, 24/05/89
DATE OF JUDGMENT:	08/11/1989
LEGAL REPRESENTATIVES:	APPLICANT J.J Bingham Sly & Weigail RESPONDENT D. O'Donnell Mallesons Stephen Jaques

JUDGMENT:

HIS HONOUR: On 8thDecember, 1987 the First Land Corporation Pty Limited ("the applicant") made a development application to the North Sydney Municipal Council ("the Council") to erect |CF2.|PSI"thirty new rooms plus refurbishment of Wallaringa Mansions Private Hotel/ Boarding House"|CF1.|PSO at premises in Lower Wycombe Road, Neutral Bay.

At its meeting on 19thDecember, 1988 the Council refused the application for the following reasons:|CF2.|PSI

"1. Non-compliance with Clauses 11, 12, 13, 14 and 20 of Interim Development Order No.57.

2. The SEPP No.1 objection to this standard is not supported by the Council.

3. The proposal does not comply with the North Sydney Plan 1986.

4. The development would have a detrimental effect on the surrounding environment.

5. The character, bulk, scale, shape, size, height, design, and external appearance of the development are unsatisfactory.

6. The relationship of the development to development on adjoining land is unsatisfactory.

7. The amount of traffic likely to be generated by the development is unsuitable to the surrounding residential area.

8. The existing and likely future amenity of the neighbourhood.

9. The circumstances of the case and the public interest.

10. The development would have an adverse effect on the locality as viewed from the Harbour."|CF1.|PSO

The applicant appeals to this Court pursuant to s.97 of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act").

The application which was rejected was an amendment of the original. The application initially proposed a terraced structure of five levels, stepping down the slope of the site and broken into two equivalent but connected portions. Following public exhibition of the proposal the applicant was advised that the Council proposed to refuse that application. The subject proposal was submitted as an amendment after negotiations with the Mayor and the then Director of Development. The amended plan attempted to overcome the bulk of the proposed structure by breaking it into a number of modules and giving it facades typical of "Federation" elements.

The land is zoned part Residential2(d2) and part Residential2(d3) within Interim Development Order No.57 ("IDO57"). In each zone boarding houses and residential flat buildings are permissible with the consent of Council. The land has a frontage also to Neutral Bay, and is subject to a substantial foreshore building line. Pursuant to Draft North Sydney Environmental Plan 1988, the land is proposed to be zoned Residential2(c), in which boarding houses and residential flat buildings are permissible with consent, and is subject to a foreshore building line.

The land is situated in a locality which comprises buildings used for residential purposes and the predominant use is residential flat buildings. The area has predominantly Federation style buildings located close to the street, generally of one or two storeys. A number of buildings on land having a frontage to the Harbour are of more than two storeys. The public road, Wallaringa Road, is very narrow and one-way adjacent to the land. The land has a frontage also to Neutral Bay, and adjoins a dwelling house known as "Nutcote", which was the home of MayGibbs.

On the land are three very large buildings erected early this century, and used for boarding house accommodation. The said buildings are erected on the elevated part of the land near the road frontage, and the site slopes steeply towards Neutral Bay. Little car parking is provided on site.

The amended application provides for thirty "new self accommodation rooms" in four structures between the boarding house and the foreshore building line. The application also includes the upgrading of the existing buildings to Ordinances42 and 70 standards for building accommodation, with repairs, refurbishment and landscaping to the private hotel grounds.

The Council took legal advice as to whether the extensions were for the purpose of a boarding house or a residential flat building. Different standards apply with respect to floor space ratios. The proposal does not meet development standards specified in IDO57, and an objection pursuant to State Environmental Planning Policy No.1 ("SEPP1") must be upheld if the application is to be approved.

The reasons for the Council's refusal may be conveniently described as:|CF2.|PSI

"1. Non-compliance with Clauses 11, 12, 13, 14 and 20 of IDO57.

2. The SEPP1 objection to the standards is not supported by the Council.

3. The proposal does not comply with the Draft North Sydney Plan 1988."|CF1.|PSO

The applicant made a further objection pursuant to SEPP1 in response to the Council's refusal of the application. In general terms, the grounds for the objection are described by the applicant's consultant as being:

a) The proposal substantially complies with the Council's current standards which are awaiting gazettal, and which would replace the outmoded approach of IDO57.

b) The proposed development is, in context, not inconsistent with the underlying objects of IDO57 standards.

Each party called a number of experts. The applicant called MrR.delaMotte, Landscape Architect of Land Systems Pty Ltd; MrM.George, Town Planner of Masterplan Consultants Pty Ltd; and Mr.D.Brown, Architect of Devine Erby Mazlin Australia Pty Ltd. The Council called MrJ.A.Nangle, Director of Development and Planning, North Sydney Municipal Council; MissD.Laidlaw, Consultant Planner of Wellings Smith and Byrnes; MsN.W.Sonter, Landscape Consultant of Habitat Green. Anumber of complainants, particularly those living in nearby or adjoining premises, gave evidence concerning the nature of the existing amenity and the claimed impact thereon if the subject development was approved.

Ihave given consideration to all of the evidence, but owing to its volume Iwill make no attempt to set it out here in full.

Whilst the existing undeveloped portion of the site is relatively large, a number of development constraints confine the proposed buildings to the south-eastern portion of the land between the foreshore building line and the existing boarding houses.

Wallaringa Mansions Private Hotel sits on approximately 0.7ha of land. The three buildings comprising the Hotel, "Wallaringa North", "Wallaringa South" and "Valetta", are grouped together on approximately 3,000m2 of land adjacent to the frontage of Wallaringa and Lower Wycombe Roads. The residual area of approximately 4,000m2 is vacant land which terraces down to the Harbour foreshore. The site is irregular in shape, having something of an "L" configuration. The contours of the slope are interrupted by two major terraces, and there is a flat waterfront platform which contains a harbourside pool and two smaller in-ground pools. The improvements occupy approximately 1,400m2, leaving a residual area of 5,523m2 of driveways, uncovered parking, trees, shrubs and grassed areas. The existing improvements occupy approximately 20% and residual areas 80%. The proposed thirty self-contained rooms will occupy 806m2 of the site, i.e. about 12%.

The premises adjoining the eastern boundary, known as "Nutcote", is built close to the common boundary. The proposed development maintains a 6m boundary setback, but bay windows come within 4.5m of the boundary, although for most of the length of the building this varies from 5.2m to 5.9m.

The ridge lines of Blocks described as"A" and "B" have been kept to R.L.21 and located to avoid intrusion into space between "Valetta" and the existing dwelling. Premises No.10Wallaringa Road, diagonally opposite the subject property, enjoys views to the south-west across the site in that location.

The subject building is claimed by the applicants to have been designed to comply with the setback requirements of IDO57, the Building Height Plane of the North Sydney Plan, to provide 60% landscaped area, to provide adequate parking, and to keep a building height in the centre of the block low enough to avoid substantial impact on adjacent properties.

The Council submits that the application is not for a residential flat building, but is tourist accommodation and therefore prohibited within the subject zone. It submits that the building is a motel with limited cooking facilities, and to be used in conjunction with existing development on the site comprising office, dining room and carpark.

The applicant submits that the proposal is a residential flat building and distinguishes it from a "motel", which is defined as a building which is substantially used for overnight accommodation. The evidence satisfies me that the use of the building is likely to be for longer periods and would more properly be described as serviced apartments. Iaccept that Ishould assume that the applicant will use the premises in accordance with the terms of any approval by the consent authority, and will not act illegally. If the premises is not used in accordance with that consent, the Council has its usual means to enforce the provisions of the Act and the environmental planning instrument. Iam satisfied that the subject building as described in the application and accompanying reports is a residential flat building and permissible with consent in the relevant zone.

The applicant submits that in effect IDO57 has been replaced by more modern planning controls adopted after detailed review and public consultation. It submits that the Council relies on the numerical standards in the IDO only when it refuses an application as a consequence of resident objection. In support of the objection, the applicant submits:|CF2.|PSI

"* There is an approved plan of subdivision for the site, which has not been registered. The effect of this subdivision would be to excise Wallaringa Mansions and its curtilage, and to create in effect a vacant development site around the subject application.

* The proposed development is associated with a proposal to renovate and upgrade the existing buildings on the site (Wallaringa Mansions and Valetta). This upgrading process is the key to resolving many of the complaints of surrounding residents related to the existing development, which in turn have influenced objections to the proposal. The new development is important to overall site management related to the renovations as well as to increasing on site parking supply.

* The applicable planning standards in part derive from principles concerning the relationship with adjoining buildings. The proposal observes these principles in its relationship with "Nutcote" cottage to the south, and its relationship to the yard space of and outlook from the adjoining dwelling to the north. However the scale and bulk of the existing Wallaringa Mansions and Valetta buildings have the effect of creating the capacity for the proposed development to be 'absorbed' on the site without any significant implications for the arrangement of building mass in the foreshore area generally. In addition, it is noted that 3 storey or taller structures are common in this part of the foreshore. While vegetation is a dominant landscape element in the immediate foreshore context of the site, the proposed substantial site landscaping maintains this effect.

* In considering similar issues the Court has drawn a distinction between the application of standards in different contexts, including differences between direct foreshore sites and those on upper slopes. The wider foreshore context of the site is dominated by buildings, compared to Cremorne Point which has continuous foreshore reserves. The proposal includes a 24m wide landscaped foreshore area, which is a substantial contribution to public amenity and to 'greening the foreshore'.

* The proposal is consistent with Council's support of urban consolidation policies.

* Many of the points of resident objection on which Council's refusal of the proposal is actually based, have simple design solutions or are able to be discounted with correct reading of the plans."|CF1.|PSO

It is common ground that, as the development as proposed does not comply with a number of development standards, for this application to succeed all objections pursuant to SEPP1 must be upheld.

It is well settled in this Court that in order to determine that objection, the applicant has an onus to prove that it is well founded and therefore must establish:

a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case;

b) For that purpose, determine what is the underlying object or purpose of the development standard;

c) That the necessary concurrence has been obtained;

d) That the granting of consent to the development application is consistent with the aims expressed in SEPP1.

If the objector discharges that onus, the consent authority must determine whether the application should be approved having regard to the matters specified in s.90 of the E.P.&A.Act.

The dispensing power vested by SEPP1 should not be given a limited operation in a determination whether compliance with the standard is unnecessary or unreasonable in the circumstances of this case. Relevant authorities are collected and considered by CrippsJ. in Legal & General Life of Australia Limited v. North Sydney Municipal Council and Anor, Land & Environment Court, 22nd June 1989 (unreported). The identification of the "underlying purpose or object" of the standard and an examination as to whether that purpose or object is satisfied by the proposed development is only one of appropriate tests. Considerations specified in s.90 are also for that purpose "relevant circumstances of the case"; North Sydney Municipal Council v. Parlby, Land & Environment Court, SteinJ., 13thNovember, 1986 (unreported).

Iam aware that some of the subject standards have been addressed in appeals to this Court. No question of law was involved and Iam not bound by such exercise of discretion in respect of other applications.

Most of the evidence was directed to the objections to compliance with development standards in IDO57 limiting height, number of storeys and separation between buildings, i.e.:

Clause12 (height of buildings)

Permitted: 7.92m.

Proposed: Up to 9.2m.

Clause13 (maximum number of storeys)

Permitted: 2.

Proposed: 3.

Whilst the proposal contravenes development standards in IDO57, the applicant claims that it complies with the proposed standards in the Draft Local Environmental Plan 1986 ("the DraftL.E.P."). The primary basis of the objection is that the proposed development is said to satisfy the "broad objectives" of IDO57. It is claimed that non-compliance by BlockC and BlockD, which are proposed to be of three storey construction, is not significant because the buildings are cut into existing ground level, and only provide a three storey facade to the Harbour. It is claimed that the additional height is masked by levels of the site and the |CF2.|PSI"frame provided by the existing 'Wallaringa' and 'Valetta' Mansions"|CF1.|PSO, and that visual impact would be further ameliorated by foreshore and site landscaping. It is submitted that it is relevant that the ridge line of BlockC is some 2.7m below the ridge line of the roof of the existing cottage on the site which is to be demolished. This means, of course, that the thre

e storey structure is lower than the existing structure it replaces.

Iam unable to discern any difference in the object or purpose of the development standard in Clause13 to that in Clause12.

Iam satisfied that the purpose of these standards is to minimise the effect of overshadowing and loss of light, to preserve views, to preserve a relationship with buildings and maintain the character of the area. Blocks"A" and "B" comply with the development standard. Blocks"C" and "D" propose a height of about 9m. However, the latter buildings are erected on the lower part of the site, do not affect views from adjoining premises, are set well back from the foreshore and below the level of an existing retaining wall, and will be provided with adequate landscaping. Whilst the development standard may be appropriate for development generally in the area, by reference to the development in the subject application compliance therewith appears to be unreasonable or unnecessary in the circumstances of this case. Iam satisfied that the objection to these development standards is well founded with respect to Blocks"C" and "D" in this application if there is compliance otherwise with all other standards.

Clause11(2), IDO57 (Separation between buildings)

This development standard compels residential flat buildings on the same site to be separated by a minimum distance.

Required: 8m.

Proposed: Between "A" and "B" 2.8m to 5.8m

Between "C" and "D" 3.2m to 6.2m.

Iam satisfied on the evidence that the purposes of this standard are:

a) To ensure an appropriate area between buildings to preserve the amenity of occupants of the buildings, and to maintain privacy;

b) To provide landscaping; and

c) To maintain the character of foreshore areas, particularly when viewed from the Harbour.

The "justification" for non-compliance is submitted to be:|CF2.|PSI

"1. The buildings have been designed so that the walls facing each other across the reduced setback are blank, contain service rooms or have highlight windows. This is both consistent with established practice and precedents for variation of statutory setback standards, and would satisfy privacy objectives which are implicit in the objectives of the standard. Similarly this design solution avoids problems with overshadowing.

2. Effective landscaping between buildings is proposed. The building separation is appropriate for the selected species of trees which will achieve a wide canopy and thus an enhanced appearance of building separation. It will also contribute to the softening of building mass.

3. The integrated design of the complex enables a satisfactory relationship to be maintained between buildings, compared to a potential need to separate buildings of contrasting design across a property boundary.

4. The relationship of building 'A' to 'Wallaringa Mansions' is offset by the relative levels of buildings, which means that building 'A' is generally below 'Wallaringa'.

5. The narrower separations apply for only limited lengths of the respective walls.

6. The effect of the reduced separations is only apparent from a front on view of the site from the south-west. This view is dominated by the existing 'Wallaringa Mansion' structure, in which context the measurement of separation between proposed buildings is inconsequential.

7. Any effect of the buildings being closer together is offset by the substantial foreshore open space provided in the development and the open space in adjoining properties. In this context it should be noted that the 8m separation standard applies to all land zoned for flats in IDO No.57, whether or not that land is also affected by a foreshore building line. In the special circumstances of the subject site, there is a 24m setback from the foreshore which is to be landscaped. The foreshore building line affects the overall site coverage and strict compliance with both separation and building line standards is unreasonable."|CF1.|PSO

The nature and bulk of the development in the original application had little to commend it, and the applicant was well advised to amend the proposal. After demolition of the existing cottage, the proposed buildings will have a floor space ratio of 0.87:1, and will have a bulk lower than that permitted within a 2(c) zoning in the North Sydney Plan. However, the design constraints specified above still compel the location of the four structures proposed in the amended application on one portion of this large allotment. During the hearing the applicant made a further amendment to provide greater separation of Blocks"C" and "D", which substantially improved the development and the ability to attain the objects and purpose of the development standard. However, four very large buildings are proposed to be located so close to each other and the existing structures that only what Iconsider to be nominal landscaping is able to be provided to internal areas. In my opinion, all existing and proposed buildings will merg

e into an unacceptable mass when viewed from the water, surrounding areas and adjoining premises. There appears to be some justification for the Council submission that Block"A" is inappropriate and should be reduced in size or even deleted altogether from the proposal. Obviously the carpark would thereby be reduced in size, there would be an increased opportunity for more open space, landscaping, and greater setback from "Nutcote" and from the existing boarding house. Because of the design constraints, notwithstanding amendments made to the plan during the hearing, Iam of the opinion that the proposal is unsatisfactory and still constitutes an over-development of part of the site.

For the above reasons Iam unpersuaded that the objection to compliance with the standard is well founded with respect to the overall development. In such circumstances the application must be rejected.

As the objector has not discharged the onus pursuant to SEPP1, it is not necessary to determine whether the the application should be approved having regard to the other matters specified in s.90. The reasonableness of the objection depended upon the circumstances of the particular application. Possible amendments to Blocks"A" and "B" were suggested during the hearing to overcome congestion and bulk. However, in my opinion, they require careful consideration by the architect, and the Court should avoid what the Council described as |CF2.|PSI"playing at the edges"|CF1.|PSO of the problem. It will be necessary for the applicant to make a reassessment of the proposal in light of the findings in this matter, and that may lead to a redesign and a fresh application to the Council. In all the circumstances it is inappropriate for the Court to canvass possible amendments to the present proposal.

The orders of the Court are:

1. Appeal dismissed.

2. Development consent refused.

3. Exhibits may be released.

4. Costs reserved.