Gamble v North Sydney Council

[2022] NSWLEC 1411

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gamble v North Sydney Council [2022] NSWLEC 1411

Hearing dates:

Conciliation conference on 27 July 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application no. DA429/21, as amended, for the demolition of existing dwelling and all associated structures, removal of ten (10) trees, construction of new two storey dwelling house, construction of swimming pool (inground), and landscaping works including retaining walls at Lot 10 DP 10730 (being No. 11A Hazelbank Road, Wollstonecraft), subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 4, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, ss 34, 34AA

Local Land Services Act 2013, s 60O

North Sydney Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 5.21, 6.10, Sch 5

State Environmental Planning Policy (Biodiversity & Conservation) 2021, Ch 2, s 2.7

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Kate Gamble (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Chryssochoides (Solicitor) (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2022/89668

Judgment

1. These proceedings are an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against North Sydney Council’s deemed refusal of development application no. DA429/21. The application proposes the demolition of an existing dwelling and all associated structures on the site, tree removal and construction of a new two-storey dwelling, swimming pool (inground) and landscaping works including retaining walls at Lot 10 in DP 10730, also known as 11A Hazelbank Road, Wollstonecraft (the site).

2. The site is located within the Crows Nest Conservation Area (Conservation Area) as listed in Sch 5 of the North Sydney Local Environmental Plan 2013 (NSLEP). The property is identified as a Contributory Item within the Conservation Area.

3. North Sydney Development Control Plan 2013 (NSDCP) Section C10.11.6 describes the characteristic built elements as including form, massing, and scale, roofs, materials, windows and doors, fences, and car accommodation.

4. As the application concerns a residential dwelling, the appeal was dealt with under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act). This required the parties to engage in a s34 conciliation conference before any hearing. The conference in this case was held at the site on 27 July 2022, and I was the presiding Commissioner.

5. At the beginning of the conference three local residents gave oral evidence against the proposal. They were:

1. Ms Fitzgerald, who is the owner of the property to the rear of the site.

2. Ms Budiman, a local resident from Crows Nest.

3. Mr Rodrigo, who is an adjoining neighbour to the site.

6. Collectively, these submitters opposed the demolition of the existing dwelling and the removal of the trees and vegetation within the front setback of the site. They described the existing dwelling as being intact and in need of a sympathetic restoration rather than demolition. They were concerned that the new development would detract from the streetscape and the heritage-listed flame trees which line Hazelwood Road. They described the proposal as inconsistent with the character statement for the Conservation Area and contrary to the Council’s LEP and DCP controls.

7. Mr Rodrigo expressed particular concern about the impact of the proposed works on the structural integrity of his dwelling. To better appreciate his evidence the Court inspected his property and observed the displaced sandstone walls of his dwelling, the underpinning, and the extensive cracks in the front steps and under the front veranda. The Court was also invited to inspect the existing landscape view from the 5-panel bay window in the front bedroom of his home across the development site and impacted by the applicant’s proposed garage and landscaping.

8. Following the site view, the parties undertook further discussions to consider the objectors’ oral and written submissions and further amendments to the plans. A final further amended set of plans was then produced and has since been substituted in the appeal (Revision F).

Amended plans

9. The Revision F plans are based on agreed changes which are intended to reduce the heritage impacts of the proposed new dwelling to make it more sympathetic and compatible with the HCA. These amendments include:

1. The front façade being further articulated with a centrally located projecting gable consistent with characteristic development of the street. The gable and porch as amended now protrude out from the main façade of the house with strong, traditionally proportioned brick columns and a balustrade.

1. The heritage experts are agreed that projecting front façade reflects the front elevation of the neighbouring property, and that projecting gables are characteristic of houses of this period. The integration of steps to the open front verandah are also described as being characteristic of the adjacent house, the HCA and houses of the period.

2. The garage door being reduced to a single garage door opening with timber panelled door.

1. Single garage doors are agreed to be characteristic of the period of the house and of the HCA.

3. The timber battens to the gable ends have been removed and replaced with flat sheet and battens.

1. The flat sheet, originally an asbestos cement sheet with timber battens, is accepted to be a characteristic of gable ends in buildings of this period and of the HCA. Today the sheet will be fibre cement with simple battening.

4. The roof of the front section of the house has been changed to unglazed terracotta roof tiles rather than the originally proposed concrete roof tiles.

1. Unglazed terracotta tiles are accepted to be characteristic of buildings of this period and of the HCA. In time the experts believe that the tiles will mellow and patinate to a colour similar to the tiles of its neighbours.

5. The front door is to be a traditional solid timber front door, salvaged from the exist building.

6. The base of the front faced is to be block sandstone salvaged from the existing building on the site.

1. The drawings indicate the podium for the house is to be constructed in face sandstone. Sandstone cannot be used structurally for this purpose however it will be cut and placed as a facing in a manner that is characteristic of traditional block sandstone footings.

7. The amount of paving and stairs in the front garden has been reduced.

1. This reduction is to afford maximum planting are to the front garden, a major point of contribution to the HCA.

8. An updated external colours and materials schedule has been provided.

1. A colour and materials schedule has been provided that indicates colours suitable to the period of the HCA.

10. The Council accepts the heritage experts’ assessment that the Revision F plans provide for a dwelling which makes an improved contribution to the streetscape. The new dwelling will replace an existing dwelling with a highly modified frontage that the experts agree no longer contributes positively to the signature or character of the HCA. Consistent with the reasons in their joint report dated 11 July filed in the appeal and marked Ex 1, the heritage experts remain satisfied on the Revision F plans that the existing building can be demolished after assessment of the criteria under P4 of section 13.8 of the NSDCP.

11. The Council also accepts that the amended landscape plan (provided with detailed input from the Council’s landscape expert, Mr Taylor) will ensure compatibility with the landscape character of the streetscape and have no adverse impact on the setting of the heritage-listed street trees.

12. On the basis of the amended application and Revision F plans, at the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Importantly, the Council’s proposed conditions have incorporated the recommendations of the experts. In particular, the structural experts’ advice for a condition requiring a detailed dilatation report for each of the adjoining properties before any development works start so as to ensure the development of the site does not adversely impact their structural integrity. This measure together with specific conditions in respect of excavation methodology to be used is said to address Mr Rodrigo’s concern about the impact of construction works on his property.

13. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions. In this instance the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application on a conditional basis. There are jurisdictional prerequisites that must be satisfied before this function can be exercised and the parties identified those of relevance in a jurisdictional statement accompanying the s34 agreement. Based on the parties’ joint submission and the evidence before the Court, I accept the following:

Zoning and zone objectives

14. The site is located within the R2 Low Density Residential zone pursuant to NSLEP.

15. The objectives of the R2 zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage development of sites for low density housing, including dual occupancies, if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

• To ensure that a high level of residential amenity is achieved and maintained.

16. While these objectives are not pre-requisites to the granting of consent, I must consider them. The parties agree that the amended development application achieves the zone objectives and I have considered their agreed position.

Landowner’s consent

17. I accept that the applicant is the owner of the land. As such, the making of the development application complies with, and meets the requirements of, the Environmental Planning and Assessment Regulation 2000.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) – Ch 4 Remediation of land

18. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the site is contaminated. Section 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

19. In the present case, there is no change of use of the site. Accordingly, consideration of a report specifying the findings of a preliminary investigation of the site is not required. Therefore, in accordance with s 4.6 of the Resilience & Hazards SEPP, I am satisfied that the site is suitable for the proposed dwelling house.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP)

20. An amended BASIX Certificate No. 1254710S_02 dated 26 July 2022 has been issued by BASIX Certificate Centre confirming the proposed development will meet the NSW Government’s requirements for sustainability. On that basis, I am satisfied that the proposed development, as amended, meets BASIX requirements.

State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity & Conservation SEPP) – Ch 2 (Vegetation in non-rural areas)

21. The development application proposes removal of vegetation to which Ch 2 of the Biodiversity & Conservation SEPP applies.

22. Section 2.7(1) of the Biodiversity & Conservation SEPP provides:

(1) A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013 (NSW), section 60O or Part 5B.

23. Section 60O of the Local Land Services Act 2013 authorises clearing of vegetation by a development consent under Pt 4 of the EPA Act.

24. In the present case, I accept that the effect of Ch 2 of the Biodiversity & Conservation SEPP is overcome by the proposed development consent under Pt 4 of the EPA Act.

NSLEP

Height of buildings

25. Clause 4.3 of the NSLEP requires the height of any building on the land to not exceed the maximum height shown on the Height of Building Map.

26. The site is identified on the Height of Building Map 002A, and is subject to a maximum building height development standard of 8.5 meters. The Joint Expert Report of Town Planners filed 17 June 2022 confirms that the development application is now compliant with the Height of Building development standard.

27. Based on the amended plans, I am satisfied that cl 4.3 of the NSLEP is now addressed. There is no breach of this LEP provision.

Floor space ratio

28. Clause 4.4 of the NSLEP requires the Floor Space Ratio (FSR) of any building on the land to not exceed the FSR shown on the Floor Space Ratio Map.

29. The site is not identified on the FSR Map under the NSLEP.

Heritage conservation

30. In respect to heritage, the parties submitted that the site is identified on Heritage Map 002A under the NSLEP and is located within the ‘Crows Nest Conservation Area’. The amended plans provide a design that is compatible with the established character of the Crows Nest Conservation Area as detailed in the Joint Heritage and Landscape Expert Report filed 11 July 2022. Annexed to the Joint Heritage and Landscape Expert Report is the Heritage Assessment Report prepared by the applicant’s expert, Mr Phillips of Weir Phillips, which addresses sections 13.6 & 13.8 of the NSDCP. I am satisfied that the Heritage Assessment Report provides a detailed consideration of the criteria under P4 of section 13.8 of the NSDCP for the purposes of considering the demolition of a contributory item.

31. Clause 5.10 of the NSLEP requires the consent authority to consider the effect of the proposed development on the relevant HCA, including the heritage-listed flame trees.

32. For the purposes of the conciliation conference, the Heritage and Landscape experts prepared a Supplementary Joint Report of Heritage Experts dated 27 July 2022 that specifically addresses the manner in which the amended plans reduce the heritage impacts of the proposed new dwelling making it sympathetic to and compatible with the HCA.

33. Having considered the expert reports identified above, I am satisfied that cl 5.10 of the NSLEP has been addressed and that sections 13.6 & 13.8 of the NSDCP relating to the demolition of a contributory item within a HCA have been satisfied. That said, I wish to make clear that the approval of the demolition of this dwelling on the evidence cannot set a precedent for any other site. Each case must be considered on its own facts under the planning controls at the relevant time.

Flood planning

34. The site is not considered to be within the flood planning area, nonetheless I am satisfied on the evidence that appropriate conditions of development consent have been imposed to ensure that stormwater for the site is appropriately managed.

35. Clause 5.21(2) of the NSLEP is satisfied by the stormwater plans and proposed conditions of consent.

Earthworks

36. Tab 4 in the Class 1 Application provides the Geotechnical Report for the proposed development.

37. Clause 6.10 of the NSLEP requires various matters to be taken into consideration in determining whether to grant consent for earthworks.

38. Section 4 of the Geotechnical Report details the proposed work methodologies and recommendations for the excavation of the site.

39. As such, the proposed excavation is considered acceptable in light of conditions C 1 – C 6 of the development consent that have been imposed to ensure that adjoining properties are appropriately shored and that the structural adequacy of adjoining properties are assessed and accommodated prior to works taking place and that all reports and plans regarding excavation are prepared by an appropriately qualified Structural and Geotechnical Engineer.

40. On this basis, I am satisfied that the requirements of cl 6.10 of the NSLEP have been met.

North Sydney Engagement Framework – Neighbourhood notification

41. The Council submits that the proposal has been appropriately notified pursuant to the EPA Act and its Community Engagement Framework. Furthermore, that the submissions received have been duly considered and reported on and are appropriately addressed through the amended plans and conditions imposed on the development consent.

42. While I am not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. Accordingly, as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with that agreed decision.

43. The Court notes:

1. That North Sydney as the relevant consent authority pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 has agreed to the applicant amending development application no. DA429/21 (the amended application).

2. The amended application was lodged on the NSW planning portal on 25 July 2022 as follows:

Plan No.	Issue	Title	Drawn by	Dated
DA01	F	Cover Sheet	theplanhouse	13/7/22
DA03	F	Lower Ground	theplanhouse	13/7/22
DA04	F	Ground Plan	theplanhouse	13/7/22
DA05	F	First Floor	theplanhouse	13/7/22
DA06	F	Roof Plan	theplanhouse	13/7/22
DA07	F	Elevations	theplanhouse	13/7/22
DA08	F	Elevations	theplanhouse	13/7/22
DA09	F	Sections	theplanhouse	13/7/22
DA10	A	Pool	theplanhouse	30/11/21
DA14	F	Street Elevation	theplanhouse	13/7/22
FG21 980	E	Landscape Concept Plan	formed gardens	13/7/22

3. The revised BASIX certificate was lodged on the NSW planning portal on 26 July 2022.

4. The applicant has subsequently filed the amended application with the Court on 28 July 2022.

44. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application no. DA429/21, as amended, for the demolition of existing dwelling and all associated structures, removal of ten (10) trees, construction of new two storey dwelling house, construction of swimming pool (inground), and landscaping works including retaining walls at Lot 10 DP 10730 (being No. 11A Hazelbank Road, Wollstonecraft), subject to the conditions set out in Annexure ‘A’.

………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (975699, pdf)

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Decision last updated: 02 August 2022